Piotrowski v. City of Houston and the Houston Police Dep't, 51 F.3d 512 (5th Cir. 1995)

EMILIO M. GARZA, Circuit Judge:

Barbra Piotrowski appeals the district court’s dismissal of her civil rights suit against the City of Houston (the “City”),1 which she brought under 42 U.S.C. § 1983 (1988). We modify and affirm.

I

In 1980, gunmen shot Barbra Piotrowski in an attempt to kill her.2 According to Pio-trowski’s complaint, Rick Waring told officers of the Houston Police Department five weeks prior to the shooting that Dudley Bell had solicited him to murder Piotrowski.3 The officers allegedly told Waring that they would investigate his information and instructed him not to warn Piotrowski of the attempt to solicit her murder. Contrary to their assurances to Waring, the officers did not proceed to investigate.4

Piotrowski sued the City in 1993, alleging that the officers had interfered with Waring’s attempts to warn her of the danger she faced and that other officers had aided Bell and the other persons conspiring to kill her by providing them with a picture of her. Piotrow-ski stated that she had not learned of these actions until January, 1993, when one of the officers revealed the alleged interference and affirmative assistance in a deposition for a civil case concerning a book written about Piotrowski. The district court granted the City’s motion to dismiss with prejudice under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that Piotrowski’s complaint was time-barred. Piotrowski appeals that dismissal.

II

Piotrowski contends that the district court erred in dismissing her suit as time-barred. ‘We review a Rule 12(b)(6) dismissal de novo. We must accept all well-pleaded facts as true, and we review them in the light most favorable to the plaintiff.” Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir.1994). In our de novo review, we apply the same standard as that used by the district court: “[A] claim may not be dismissed unless it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief.” Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir.1994) (citing Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994); Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994)); see also Green, 27 F.3d at 1086 (“A dismissal will not be affirmed if the allegations support relief on any possible theory.”).

The district court found that Pio-trowski’s claim was that the Police Department violated her civil rights when it failed to investigate Waring’s story and failed to protect her from Bell and Minns, and decided that such claims accrue at the time of the injury. Because Piotrowski knew at the time she was shot that the Police Department had failed to protect her, the district court held that her claim had accrued in 1980, more than two years before she filed suit.5 Pio-

trowski argues, however, that she is making more than a fañure-to-protect claim. She argues that her complaint states a § 1983 claim for a violation of her civil rights that resulted from affirmative acts of the Police Department that contributed to the danger she faced, and that her claim did not accrue until she acquired knowledge of these acts in January, 1993.

A

Piotrowski argues that the police officers’ affirmative acts of preventing Waring from warning her and giving the conspirators her picture support a § 1983 claim of a “state-created danger.”6 “To state a claim under § 1983, a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Leffall, 28 F.3d at 525. Our first inquiry is whether the plaintiff has alleged a violation of a constitutional right at all. Id.; cf. Siegert v. Gilley, 500 U.S. 226, 231-33, 111 5.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991) (establishing in qualified immunity context that first inquiry is existence of constitutional violation).

Generally, “nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago County Dep’t of Social Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989). “The Due Process Clause confers protection to the general public against unwarranted governmental interference, but it does not confer an entitlement to governmental aid as may be necessary to realize the advantages of liberty guaranteed by the Clause.” Walton, 44 F.3d at 1302. While “it is true that in certain limited circumstances the Constitution imposes upon the State affirmative duties of care and protection with respect to particular individuals,” DeShaney, 489 U.S. at 198, 109 S.Ct. at 1004, Piotrowski must show that her situation fits those “certain limited circumstances.”

Piotrowski contends that her allegations qualify by satisfying the “state-created danger” theory of § 1983 liability.7 While this Court has not affirmatively held that this theory is a valid exception to the DeShaney rule, see Johnson, 38 F.3d at 200 (discussing Fifth and other circuits’ uncertainty regarding theory’s validity and commenting that Salas discussed the theory only in dicta), it has addressed what a plaintiff would have to demonstrate to qualify for relief under this theory. First, a plaintiff must show that the state actors increased the danger to her. Second, a plaintiff must show that the state actors acted with deliberate indifference.8 In

this case, Piotrowski alleges that the Police prevented Waring from warning her of the threat against her and assisted the conspirators by giving them a picture of her.9

B

Before we reach whether a “state-created danger” constitutes a cognizable § 1983 theory, we determine first whether the district court correctly held that the statute of limitations would bar such a claim. Piotrowski contends that her claim accrued in January, 1993, when she discovered the relevant information from the police officer’s deposition.

“Under federal law, the [limitations] period begins to run ‘the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured.’ ” Russell v. Board of Trustees, 968 F.2d 489, 493 (5th Cir.1992) (quoting Helton v. Clements, 832 F.2d 332, 335 (5th Cir.1987)), cert. denied, - U.S. -, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993).10 A plaintiffs awareness encompasses two elements: (1) The existence of the injury; and (2) causation, that is, the connection between the injury and the defendant’s actions. See Stewart v. Parish of Jefferson, 951 F.2d 681, 684 (5th Cir.) (“The statute of limitations period commences once the plaintiff acquires possession of two eritical facts: (1) an injury has occurred; and (2) the identity of the person who inflicted the injury.”), cert. denied, — U.S. -, 113 S.Ct. 69, 121 L.Ed.2d 35 (1992). A plaintiff need not realize that a legal cause of action exists; a plaintiff need only know the facts that would support a claim. See Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir.1983) (“The plaintiff need not have knowledge of fault in the legal sense for the statute to begin to run, but she must have knowledge of facts that would lead a reasonable person (a) to conclude that there was a causal connection ... or (b) to seek professional advice, and then, with that advice, to conclude that there was a causal connection between the [defendant’s acts] and injury.”).11 Moreover, a plaintiff need not have actual knowledge if the circumstances would lead a reasonable person to investigate further. See Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir.1988) (“Under federal law, the limitations period commences when ‘the aggrieved party has either knowledge of the violation or notice of facts which, in the exercise of due diligence, would have led to actual knowledge’ thereof.” (quoting Vigman v. Community Nat’l Bank & Trust Co., 635 F.2d 455, 459 (5th Cir.1981))).12

The City argues that Piotrowski either knew of the facts underlying her claim

at the time of the attack or should have inquired into the actions of the police officers at that time. In response, Piotrowski alleges that the police officers took active steps to suppress any information concerning their prior knowledge of the threat. When a defendant controls the facts surrounding causation such that a reasonable person could not obtain the information even with a diligent investigation, a cause of action accrues, but the statute of limitations is tolled. See United States v. Kubrick, 444 U.S. 111, 122, 100 S.Ct. 352, 359, 62 L.Ed.2d 259 (1979) (tolling limitations period where “the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain.”); Frazier v. Garrison I.S.D., 980 F.2d 1514, 1521-22 (5th Cir.1993) (affirming summary judgment on limitations grounds, stating that: “No facts indicate to us that the alleged discrimination was either hidden or for some reason not apparent to a reasonable prudent person,” and contrasting to scenario in which defendant’s actions would not lead a reasonably prudent person to suspect critical facts and investigate further). Consequently, we cannot say as a matter of law that the limitations period started in 1980.13 Thus, if Piotrow-ski’s “state-created danger” theory raises a cognizable constitutional claim under § 1983, the district court erred in determining that her suit was time-barred.

C

We need not decide, however, whether Piotrowski’s “state-created danger” claim is a cognizable § 1983 theory that is not time-barred. Even if she has alleged a “state-created danger,” she has failed to allege facts that implicate the City itself. A municipality does not incur liability under § 1983 “unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Department of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978); see also City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412 (1989) (“[0]ur first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.”); Leffall, 28 F.3d at 525 (requiring allegation that policy or custom was “a cause in fact of the deprivation of rights inflicted”); Colle v. Brazos County, 981 F.2d 237, 244 (5th Cir.1993) (“[0]nly when the execution of a county’s policies or its customs deprives an individual of constitutional or federal rights does liability under § 1983 result.”).

Piotrowski alleges that the police officers increased the threat to her life, but she does not allege that the increased danger resulted from the City’s policies. Nowhere in her substantive due process claim does Piotrowski allege that a causal link existed between a City policy or custom and the alleged state-created danger. Rather, she alleges that the increased danger resulted from the actions of certain police officers. Because the City cannot be held liable under a respondeat superior theory, Monell, 436 U.S. at 691, 98 S.Ct. at 2036, Piotrowski has failed to allege facts supporting a § 1983 claim against the City.

Ill

For the foregoing reasons, we AFFIRM the dismissal of Piotrowski’s suit. We modify the district court’s judgment, however, to dismiss without prejudice to Piotrow-

ski’s right to file an amended complaint.14