NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 2 2

- 1201

________________ KIANA BROOKENS , as administratrix of the Estate of Z.W. , Appellant

v. CITY OF PHILADELPHIA; ISSIAR SANTA

- TORRES

_____________ On Appeal from the United States District Court f

or the Eastern District of Pennsylvania ( D.C. Civil No. 2

- 18

- cv - 04640 ) District Judge: Honorable Mitchell S. Goldberg

________________ Submitted Under Third Circuit L.A.R. 34.1 (a) March 27 , 202 3

________________ Before: MATEY , FREEMAN and FUENTES , Circuit Judges

. (Filed: June 28, 2023 )

________________ OPINION *

________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 MATEY , Circuit Judge

. Two

- year - old Z.W. was killed by his mother’s boyfriend. Appellant Kiana Brookens, the administratrix of Z.W.’s estate, sued Issiar Santa

- Torres, 1 the state caseworker assigned to ensure Z.W.’s safety , alleging violations of federal law

. Finding no error in the District Court’s decision granting Santa

- Torres’s motion for summary judgment, we will affirm. I. When Z.W. was born to Andrea Worrell in 2014 , Appell ant was already the legal guardian of Worrell’s first child S.W. At least twice, the Philadelphia Department of Human Services (“DHS”) received reports about Worrell’s interaction s with S.W., including reports of neglect and inadequate supervision

. In response , DHS assigned caseworker Santa

- Torres to assess the safety of Worrell’s children

. Santa

- Torres met with Appellant and verified that S.W. was safe. Santa

- Torr es and Worrell then went to the home of Z.W.’s father Kevin Smith. Z.W. appeared happy to see Worrell , but the visit turned volatile when Smith returned and denied paternity of Z.W. while screaming at Santa

- Torres. Appellant alleged that encounter led Santa

- Torres to briefly remove Z.W. from Wor r ell ’s custody. 2 Santa

- Torres re turned Z.W. to Worrell on June 21, 2016. Construing the disputed facts in Appellant’s favor, Santa

- Torres knew on

1 Originally, Appellant also sued the City of Philadelphia

. But when responding to the motion for summary judgment, Appellant stated she would no longer pursue any claims against the City. 2 Santa

- Torres disputes this claim, but like the District Court we accept Appellant’s view of the facts.3 that date that Worrell was in a relationship with Rimear Custis, who had a history of inflicting violence on Worrell. In July 2016, Custis att acked Worrell and punched Z.W. Cu s tis was arrested, and Worrell and Z.W. moved into a domestic violence shelter. Santa

Torres last visited Z.W. and Worrell at the shelter on August 9, 2016 , and reported no safety concerns. She closed the investigation a fe w days later

. On November 29, 2016, Worrell called 911 after Cu s tis attacked Z.W. Z.W. died the next day. Cu s tis was convicted for the murder, and Worrell pleaded guilty to endangering the welfare of her child. The state

- mandated investigation faulted Santa

Torres for failing to thoroughly investigate the domestic violence incident before closing the case but concluded that further DHS action may not have changed t he outcome. Appellant brought suit on behalf of Z.W.’s estate alleging a due process violation under the state

- created danger theory. The District Court granted summary judgment for Santa

Torres, and Appellant now appeals. 3
II. A claim under 42 U.S.C. § 1983 must allege a violation of a c onstitutional right or a law of the United States by a person acting under the color of state law. Nicini v. Morra , 212 F.3d 798, 806 (3d Cir. 2000) (en banc). “[A] State’s failure to protect an individual against private violence simply does not constitute a violation of the Due

3 The District Court had jurisdiction under 28 U.S.C. § 1 331 and w e have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo , drawing all reasonable inferences in favor of the non

- moving party. Hall v. Millersville Univ. , 22 F.4th 3 97, 402

– 03 (3d Cir. 2022)

. “ Only disputes over facts that might affect the out come ” under the law preclude summary judgment. United States ex rel. Greenfield v. Medco Health Sols., Inc. , 880 F.3d 89, 93 (3d Cir. 2018)

.4 Process Clause” because the Due Process Clause “was intended to prevent government ‘from abusing [its] power, or employing it as an instrument of oppression.’” DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs. , 489 U.S

. 189, 196

– 97 (1989) (citation omitted). We have carved out an exception to this general rule when the s tate created the danger to the individual. See Johnson v. City of Phila. , 975 F.3d 394, 399

– 400 (3d Cir. 2020) (applying Kneipp v. Tedder , 95 F.3d 1199, 1205 (3d Cir. 1996) )

. Under the state

- created danger theory, a plaintiff must show: [F] irst, foreseeable and fairly direct harm; second, action marked by “ a degree of culpability that shocks the conscience ” ; thi rd, a relationship with the state making the plaintiff a foreseeable victim, rather than a member of the public in general; and fourth, an affirmative use of state authority in a way that created a danger, or made others more vulnerable than had the state not acted at all. Id. at 400 . “[L]iability under the state created danger theory is predicated upon the states’ affirmative acts which work to plaintiffs’ detriments in terms of exposure to danger.” Kneipp , 95 F.3d at 1207

. So i f a plaintiff fails to establish that the state took an affirmative action, then there is no state

- created d anger. See Bright v. Westmoreland Cnty. , 443 F.3d 276, 282 (3d Cir. 2006)

. Appellant claims that in the brief period in which Z.W. was allegedly in the care of Santa

- Torres without Worrell, Santa

- Torres gained custody of Z.W. On that theory, A ppellant reasons the status quo “changed” when Z.W. was placed back into Worrell’s care, thereby “creating” the danger of exposing Z.W. to Worrell’s violent b oyfriend. But even assuming, as we must, that chain of events, Z.W. returned to the same situation facing no danger that was not already present

. See Fetterman v. Westmoreland Cnty.5 Childrens Bureau , 681 F. App’x 166, 170 (3d Cir. 2017) (finding no due pro cess claim when the state ordered a child to return to potentially abusive parents, noting the state’s conduct did not “shock the conscience”). While Appellant’s search for accountability is understandable and too familiar, 4 § 1983 does not reach the alle gations against Santa

Torres. I I I. For these reasons, we will affirm.

4 Although these saddening fact patterns are common, they consistently fail to meet the standard we require to est ablish a state

- created danger. See, e.g. , Nicini , 212 F.3d at 811

– 12 (finding that state’s actions amounted only to “mere negligence” not “deliberate indifference” when the state allowed a child under state care to live with a family without adequately inv estigating the family); Bright , 443 F.3d at 284 (finding a theory of “failure of the state to act” “foreclosed by DeShaney ” when suit was brought against the state for failing to detain an individual who was violating his parole by maintaining an inappropr iate relationship with his twelve

- year - old victim).