NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 15-1545

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A.G., (a minor) c/o Alphonzo King,

Appellant

v.

CHESTER UPLAND SCHOOL DISTRICT

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On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-14-cv-03685)

District Judge: Honorable Nitza I. Quinones Alejandro

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Argued February 8, 2016

Before: FUENTES, KRAUSE, and RENDELL, Circuit Judges

(Filed: July 7, 2016 )

Mu’min F. Islam, Esq. [ARGUED]

MFI Law Group

1448 South Street, Suite 200

Philadelphia, PA 19146

Counsel for Appellant

John F. Kennedy, Esq. [ARGUED]

Grace & Kennedy

200 South Broad Street, Suite 500

Philadelphia, PA 19102

Counsel for Appellee
2

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OPINION*

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FUENTES, Circuit Judge

A.G. was a victim of a random attack on students at his high school. His father

filed a 42 U.S.C. § 1983 lawsuit against the school district, alleging that the school 

district’s decision to cease its policy of issuing student identification cards created or 

enhanced the danger to which A.G. was exposed.

1

 The District Court granted the school 

district’s motion to dismiss.2 For the reasons that follow, we will affirm.

I.

Because this case comes to us on a motion to dismiss, the following facts are taken 

from the complaint and are assumed true for purposes of this appeal.3 During the 2012-

2013 school year, Plaintiff was a ninth grade student at Chester High School, which is 

operated by Defendant Chester Upland School District (the “School District”). At some 

point during the school year, the school decided to not issue identification (ID) cards to 

students, in contrast to previous years. Additionally, the school’s principal and staff 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.

1 The record is unclear as to whether A.G. is the student or his father; the case caption, 

the Appellant’s briefing, and the complaint conflict. For ease of reference, we will refer 

to the student as “Plaintiff.”

2 The District Court also dismissed Plaintiff’s equal protection and unlawful seizure 

claims. Those claims are not at issue on appeal. 

3 Finkelman v. Nat’l Football League, 810 F.3d 187, 190 n.11 (3d Cir. 2016).
3

allowed visitors to enter the school without identifying or registering themselves or 

obtaining a visitor’s pass.

According to Plaintiff, because of the school’s decision to discontinue issuing 

student ID cards and its custom of allowing visitors to enter the school without 

permission, a trespasser posing as a student bypassed security and entered school 

property. During the course of the school day, the trespasser assaulted various students, 

including Plaintiff, “in honor of ‘National Fight Day.’”

4

 The attack on Plaintiff was 

recorded and uploaded to the Internet. As a result of this attack and the subsequent 

display on the Internet, Plaintiff suffered physical injuries and emotional distress. 

Plaintiff eventually transferred to another school.

Plaintiff filed a 42 U.S.C. § 1983 suit against the School District.5 He claimed that 

the School District’s decision to discontinue issuing student ID cards violated his 

substantive due process rights under the state-created danger theory. Specifically, he 

alleged that the School District “created a situation, a state-created danger, where it was 

foreseeable that Plaintiff would suffer injury and harm.”6 The School District moved to 

dismiss pursuant to Rule 12(b)(6), arguing that Plaintiff could not establish any 

constitutional violation or that any alleged constitutional violation resulted from an 

 

4 Compl. ¶ 15 (App. 24).

5 Plaintiff twice amended his complaint in response to the School District’s motions to 

dismiss. Thus, the District Court reviewed, as do we, Plaintiff’s second amended 

complaint.

6 Compl. ¶ 21 (App. 25).
4

official policy, practice, or custom, as required by Monell v. Department of Social 

Services, 436 U.S. 658 (1978).

7

 

The District Court held that Plaintiff’s substantive due process claim under the 

state-created danger theory did not sufficiently allege an affirmative act on the part of the 

School District. Accordingly, the District Court dismissed Plaintiff’s claim with 

prejudice, explaining that any attempt to amend the complaint a third time would be 

futile. This appeal followed.8

II.

Plaintiff’s primary argument on appeal is that the District Court erred in its 

application of the state-created danger test. He also claims that the District Court erred in 

not allowing him an opportunity to amend his complaint. We address each argument in 

turn.9 

A. State-Created Danger Test

To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that a person 

acting under color of state law engaged in conduct that violated a right protected by the 

 

7 See Thomas v. Cumberland Cty., 749 F.3d 217, 222 (3d Cir. 2014) (“A plaintiff seeking 

to hold a municipality liable under section 1983 must demonstrate that the violation of 

rights was caused by the municipality’s policy or custom.” (citing Monell, 436 U.S. at 

690-91)).

8 The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We 

have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

9

“We exercise plenary review over the grant of a motion to dismiss.” Brown v. Card 

Service Ctr., 464 F.3d 450, 452 (3d Cir. 2006). “[W]e review the District Court’s denial 

of leave to amend for abuse of discretion, and review de novo its determination that 

amendment would be futile.” U.S. ex rel. Schumann v. Astrazeneca Pharm. L.P., 769 

F.3d 837, 849 (3d Cir. 2014).
5

Constitution or laws of the United States.10 Here, Plaintiff’s § 1983 claim invokes the 

substantive component of the Due Process Clause, which “protects individual liberty 

against certain government actions regardless of the fairness of the procedures used to 

implement them.”11 

We have recognized the state-created danger theory as a mechanism for 

establishing a substantive due process claim.

12

 Four elements must be satisfied: (1) the 

harm ultimately caused was foreseeable and fairly direct; (2) the state actor acted with a 

degree of culpability that shocks the conscience; (3) a relationship existed between the 

state and the plaintiff such that the plaintiff was a foreseeable victim of the state actor’s 

acts; and (4) the state actor affirmatively used his/her authority in a way that created a 

danger to the plaintiff or that rendered the plaintiff more vulnerable to danger than had 

the state not acted at all.13 

The District Court focused on the final “affirmative act” element and concluded 

that the School District’s decision not to issue student ID cards was not affirmative

conduct.14 We agree. On the facts alleged, we do not believe that the School District’s 

decision to no longer issue ID cards to its student body constituted an “affirmative act” or 

“affirmative exercise of authority” that created or enhanced a danger to Plaintiff that he 

 

10 Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000) (en banc).

11 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992) (internal quotation marks 

omitted).

12 See Kneipp v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996).

13 Bright v. Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006).

14 See Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013) (en banc) (concluding that 

school’s failure to continue perpetrator’s suspension, thus permitting perpetrator to return 

to school, could not be deemed an affirmative act for purposes of a substantive due 

process claim under the state-created danger theory). 
6

otherwise would not have faced. Moreover, Plaintiff fails to show how the attack on him 

was a “fairly direct” result of the School District’s decision. Plaintiff cannot plausibly 

allege that the school’s failure to issue student ID cards was the “catalyst” for the 

trespasser attack on Plaintiff; “[t]he causation, if any, is too attenuated.”15 Rather, 

Plaintiff seemed to be a “tragic victim of random criminal conduct rather than of school 

officials’ deliberate, callous decisions.”16 

For these reasons, Plaintiff’s substantive due process claim under the state-created 

danger theory must fail.

B. Dismissal with Prejudice

Plaintiff also claims that the District Court was required to provide him with an 

opportunity to amend his complaint. Our jurisprudence makes clear that, whether or not 

a plaintiff seeks leave to amend, a district court considering a Rule 12(b)(6) motion to 

dismiss “must permit a curative amendment unless such an amendment would be 

inequitable or futile.”17 

Here, the District Court explicitly stated that any attempt to amend the complaint 

for a third time would be “legally futile.”18 We agree with this conclusion. The heart of 

Plaintiff’s substantive due process claim—that the decision to cease issuing student ID 

 

15 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 909 (3d Cir. 1992) (concluding that 

plaintiff could provide no set of facts that would establish “the direct causal connection” 

between the perpetrator’s deadly shooting of a teacher and the school’s decision to allow 

construction workers to leave the school’s rear entrance unlocked).

16 Id. at 911 (internal quotation marks omitted).

17 Phillips, 515 F.3d at 245. See Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004) 

(“Dismissal without leave to amend is justified only on the grounds of bad faith, undue 

delay, prejudice, or futility.”). 

18 App. 17.
7

cards placed Plaintiff in a dangerous situation—could not be cured by additional facts. 

Plaintiff’s claim fails as a matter of law.

III.

For the reasons set forth above, we will affirm the District Court’s dismissal with 

prejudice of Plaintiff’s second amended complaint.