IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-20402 Summary Calendar

JUDY BLANDO, Individually, and as Representative and Administrator of the Estate of Troy Blando-Deceased and as next friend for Daniel Blando a minor child; DANIEL BLANDO, a minor; DELLA BLANDO,

Plaintiffs-Appellants,

versus

LESTER TYRA, Etc.; ET AL,

Defendants,

CITY OF HOUSTON, TEXAS, Defendant-Appellee.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. H-01-CV-1680 -------------------- December 16, 2002

Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Judy and Della Blando appeal the dismissal of their

claims against the City of Houston, Texas, pursuant

to FED. R. CIV. P. 12(b)(6). This court conducts a de novo review

of a Rule 12(b)(6) dismissal for failure to state a claim. Roark

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 02-20402 -2-

v. Humana, Inc.,

, 313 (5th Cir. 2002). All well-

pleaded factual allegations in the complaint are accepted as

true, and the complaint is construed in the light most favorable

to the plaintiffs. Herrmann Holdings, Ltd. v. Lucent

Technologies, Inc.,

(5th Cir. 2002).

The Blandos argue that a state-created danger deprived

Officer Troy Blando of his constitutional right to life. This

court has not expressly adopted nor expressly rejected the state-

created-danger theory of recovery under

. Morin

v. Moore,

(5th Cir. 2002); see also McClendon

v. City of Columbia,

, passim, (5th Cir. 2002)(en

banc).

The Blandos’ claims were properly dismissed even were this

court to adopt the state-created-danger theory. For a plaintiff

to prevail under the state-created-danger theory, the plaintiff

must show that 1) the environment created by a state actor was

dangerous, 2) the state actor knew of the danger, and 3) the

state actor used his authority to create an opportunity that

otherwise would not have existed for a third-party’s crime to

occur. Randolph v. Cervantes,

(5th Cir. 1997).

The Blandos failed to show that the environment created by the

City of Houston was dangerous. See Salas v. Carpenter, 980 F.2d

at 306-07, 310. Officer Blando was fatally wounded by a gunshot

wound inflicted by a third party. The Due Process Clause of the

Fourteenth Amendment does not generally require the government to No. 02-20402 -3-

protect its citizens against the acts of private actors.

DeShaney v. Winnebago County Dep’t of Soc. Servs.,

(1989). Thus, the plaintiffs did not allege a constitutional

violation for which

permits recovery.

The Blandos argue that the City of Houston is liable for

Officer Blando’s death. Generally, municipal liability requires

proof of 1) a policymaker, 2) an official policy or custom, and

3) a violation of constitutional rights whose moving force is the

policy or custom. Delano-Pyle v. Victoria County, Tex.,

(5th Cir. 2002). Because the plaintiffs failed to

allege the violation of constitutional rights cognizable in an

action under

, the City of Houston was properly

dismissed by the district court. The judgment of the district

court is AFFIRMED.