NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ ____ No. 15

- 1545

__________________ A.G. , (a minor) c/o Alphonzo King , Appel l ant

v.
CHESTER UPLAND SCHOOL DISTRICT

______________ ____ On Appeal from the United Stat es District Court for the Eastern District of Pennsylvania ( D.C. No. 2

- 14

- cv
- 03685 ) District Judge: Honorable Nitza I. Quinones Alejandro

______________ ____ Argued February 8, 2016
Before : FUENTES, KRAUSE, and RENDELL , Circuit Judges

(Filed : July 7, 2016 )

M u’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 Appellee2 ________ ______ ____ OPINION *

______________ ____ FUENTES, Circuit Judge
A.G. was a victim of a random attack on students at his high school . H is father
filed a 42 U.S.C. § 1983 lawsuit against the school district, alleging that the school
district’s decisio n 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, w e will affirm.
I.
Because this ca se 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 D efendant 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 recor d is unclea r 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 protect ion 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

al lowed 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 t he 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 at tack 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.
Plaintif f 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, h e alleg ed 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 an y
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 mot ions 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 substan tive 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 cl aim with prejudice, explaining that any attempt to amen d 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 all owing him an opportunity to amend his complaint. W e 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 vi olated a right protected by the

7 See Thomas v. Cumberland C ty. , 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 mun icipality’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 re view de novo its determination that amendment would be futile.” U.S. ex rel. S c humann 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 recogniz ed 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 a nd 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) th e stat e 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 constitut ed 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. Westmorel and C ty. , 4 43 F.3d 276, 281 (3d Cir. 2006). 14 See Morrow v. Balaski , 719 F.3d 160, 178 (3d Cir. 2013) (en banc) (concludi ng 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 Distri ct’s decision

. Plaintiff cannot plausibly allege that the school’s failure to issue student ID cards was the “catalys t ” 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

- cr eated danger theory must fail. B. Dismissal with Prejudice
Plaintiff also cla ims that the District Court was required to provide him with an

oppo rtunity to amend his complaint. Our jurisprudence ma kes clear that, whether or not

a plaintiff seeks leave to amend, a district court considering a Rule 12(b)(6) motion to dismiss “must p ermit a curative amendment unless such an amendment would be inequitable or futile.” 17

H ere, 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. T he he art of
Plaintiff’s substantive due process claim

— that the decision to cease issuing student ID

15 Morse v. Lowe r Merion Sch. Dist. , 132 F.3d 902, 909 (3d Cir. 1992) ( concluding that plaintiff could provi de 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 t o allow con struction 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 th e 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 fo rth above, we will affirm the District Court’s dismissal with prejudice of Plaintiff’s second amended complaint.