*

Judge Kravitch was in regular active service when this

matter was originally submitted but has taken senior status

effective January 1, 1997. 

United States Court of Appeals,

Eleventh Circuit.

No. 95-3431.

R. Glen MITCHELL, as Personal Representative for the Estate of

Richard Jefferson Mitchell, Plaintiff-Appellant,

v.

DUVAL COUNTY SCHOOL BOARD, James Jaxon, Defendants-Appellees.

March 17, 1997.

Appeal from the United States District Court for the Middle

District of Florida. (No. 95-678-CIV-J-20), Harvey E. Schlesinger,

District Judge.

Before ANDERSON, Circuit Judge, and KRAVITCH*

 and HENDERSON, Senior

Circuit Judges.

PER CURIAM:

I. BACKGROUND

This case undoubtedly involves a tragic situation: while

standing on the edge of a parking lot at Terry Parker High School

on November 4, 1993, fourteen year old Richard Jefferson Mitchell

(Mitchell) was shot and killed by non-student, third party

assailants attempting to rob him. Mitchell had attended a

school-sponsored function earlier that evening, and was waiting for

his ride home. According to appellant's complaint, Mitchell had

attempted to telephone his father from the school administration

office, but was denied entry to the office by school officials.

Mitchell used an outside pay phone to call his father, and then

waited for his father outdoors on a driveway near the school

parking lot.
 1

This Court reviews de novo a district court's order

dismissing a complaint, accepting all allegations in the

complaint as true and construing the facts in a light favorable

to the plaintiff. Fortner v. Thomas, 983 F.2d 1024, 1027 (11th

Cir.1993). 

 Appellant R. Glen Mitchell, as personal representative for

the estate of Richard Jefferson Mitchell, brought suit pursuant to

42 U.S.C. § 1983, claiming that the actions of the defendants,

Duval County School Board and its high school principal, James

Jackson, resulted in the deprivation of Mitchell's rights,

privileges and immunities as guaranteed by the Due Process Clause

of the Fourteenth Amendment. The district court granted

defendants' Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to

state a cause of action upon which relief could be granted.1 On

appeal, appellant contends that, while ordinarily a school or other

government entity is not obligated to protect persons from the

crimes of third parties, the circumstances of Mitchell's death

qualify for an exception to this rule.

II. DISCUSSION

 Generally a person does not have a constitutional right under

the Fourteenth Amendment to be protected from the criminal acts of

third parties. See DeShaney v. Winnebago County Dept. of Social

Services, 489 U.S. 189, 195, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249

(1989) (stating that "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").

However, appellant argues that courts have found such protection in

two special circumstances: where the state has created the danger,

and where the victim has a special relationship to the state. The
 2

In Wright, as in this case, the school program being

attended by the student was a voluntary one. In such

circumstances, the court held that no special relationship

existed between the school and the student sufficient to give

rise to a constitutional duty on the part of the school to

protect the student from harm by non-state actors. Although

noting that it need not decide the somewhat different issue of

whether mandatory school attendance gave rise to the special

relationship between school and student, the court pointed out

that every court of appeals which had addressed that issue had

found an absence of the special relationship and had refused to

impose a constitutional duty to protect the student from injury

by third parties. Id. (citing cases to this effect). 

dispositive issue in this appeal is whether appellant has stated a

viable claim, under either theory, that the school defendant

violated a constitutional duty owed to Mitchell.

 We summarily reject the latter theory on the basis of Wright

v. Lovin, 32 F.3d 538 (11th Cir.1994). In circumstances not

distinguishable in principle from the circumstances of this case,

the Wright court rejected the argument that a student attending a

voluntary program has a special relationship with his school

sufficient to impose a constitutional duty on the school to protect

the student from injury by third parties. Id. at 540.2

We turn to appellant's other theory, i.e., that the school

defendant in this case created the danger. In Cornelius v. Town of

Highland Lake, Ala., 880 F.2d 348, 352-55 (11th Cir.1989), cert.

denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990), we

held that a state has a duty to protect an individual from third

parties when the state's actions place an individual in "special

danger." 880 F.2d 348, 352-55. While there is some question

whether Cornelius's special danger theory of liability remains good
 3

Cornelius may not have survived Collins v. City of Harker

Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992),

where the Supreme Court held that a voluntary employment

relationship does not impose a constitutional duty on government

employers to provide a reasonably safe work environment. 503

U.S. at 127, 112 S.Ct. at 1069. See Hamilton By and Through

Hamilton v. Cannon, 80 F.3d 1525, 1531 n. 6 (11th Cir.1996); 

Lovins v. Lee, 53 F.3d 1208, 1211 (11th Cir.1995); Wooten v.

Campbell, 49 F.3d 696, 700 n. 4 (11th Cir.), cert. denied, ---

U.S. ----, 116 S.Ct. 279, 133 L.Ed.2d 302 (1995); Wright v.

Lovin, 32 F.3d 538, 541 n. 1 (11th Cir.1994). 

law,3 we need not decide that issue today. Assuming arguendo that

Cornelius has not been undermined, we find that appellant's

pleadings nevertheless failed to state a claim.

 In order for a plaintiff to hold the state liable under the

"special danger" analysis, he must show that the state

affirmatively placed him in a position of danger which was

distinguishable from that of the general public. Cornelius, 880

F.2d at 354-56. In describing the necessary factors for finding

liability under the state-created danger theory, the Fifth Circuit

has emphasized that the acts of the state must facilitate the

crime's commission:

[T]he environment created by the state actors must be

dangerous; they must know it is dangerous; and to be liable,

they must have used their authority to create an opportunity

that would not otherwise have existed for the third party's

crime to occur.

Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 201 (5th

Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1361, 131 L.Ed.2d

218 (1995) (emphasis added). In determining whether the above

standard is satisfied, courts look both at state actions increasing

danger and to the related factor of whether a custodial

relationship exists between the state and the perpetrator of the

crime. For example, in Cornelius, a work squad inmate in the
municipality's custody was permitted to leave the prison under the

supervision of an untrained and unarmed civilian employee. The

inmate was given access to dangerous weapons, was placed in the

vicinity of the victim's workplace, and was able to use these

weapons to kidnap and terrorize the municipal employee at knife

point. 880 F.2d at 355, 357. Critical to our finding that the

actions of the defendants evidenced the existence of special danger

liability was "the fact that the work squad inmates were in the

defendants' custody when Mrs. Cornelius was kidnapped"; and, under

the stated circumstances, "the defendants' conduct ...

significantly increased both the risk of harm to the plaintiff, and

the opportunity for the inmates to commit the harm." Id. at 357.

See also Nishiyama v. Dickson County, Tenn., 814 F.2d 277 (6th

Cir.1987) (where the county allowed an inmate on "trusty" status to

have unsupervised use of a patrol car equipped with standard blue

flashing lights and identifying markings, and the inmate used the

patrol car's lights to pull over plaintiff's daughter and beat her

to death).

 Accepting appellant's allegations as true and construing them

in a light most favorable to appellant, we find that the pleadings

nevertheless failed to present facts sufficient to give rise to

liability under the special danger theory. According to appellant,

the school's policy of not allowing students to use the

administration office telephone affirmatively placed Mitchell in an

inherently dangerous situation. We disagree. There is no

allegation that the outside pay telephone which Mitchell used was

in a dangerous location; indeed, it was established beyond doubt
at oral argument that appellant cannot prove that it was in an

inherently dangerous location. In addition, nothing in the

school's policy required Mitchell to wait where he did. Even if,

as appellant alleges, Mitchell was not allowed to wait inside the

administration office, Mitchell had the option of waiting either

inside the building or immediately outside. For example, Mitchell

could have waited in the school's courtyard, which is immediately

adjacent to the administration office. Instead of waiting there,

Mitchell stood a considerable distance away on the edge of the

school's parking lot. We conclude that it is beyond doubt that

appellant cannot prove a set of facts that any school policy

required Mitchell to wait in an inherently dangerous location.

Also, in this case there was no connecting relationship

between the appellees and Mitchell's assailants. Thus, this case

is distinguishable from Cornelius with respect to both factors

which the Cornelius court found significant. First, in Cornelius,

the government had custody and control of the inmate work squad;

here the school had no such relationship with Mitchell's

assailants. Second, in Cornelius, the government increased the

risk of danger to the victim by having inadequate supervision of

the inmates, by providing the inmates with dangerous weapons and by

placing the inmates at the victim's workplace, thus subjecting her

to a danger distinct from that of the general public. By contrast,

in the instant case, the school did not create the danger; the

school neither placed Mitchell in a dangerous location nor placed

the assailants in the place where Mitchell was.

III. CONCLUSION
For the foregoing reasons, the district court's dismissal of

appellant's § 1983 claim is

AFFIRMED.