United States Court of Appeals

for the Fifth Circuit

No. 21-20553

Denise Fisher, 

Plaintiff—Appellee, 

versus

Jodi M. Moore; Amna Bilal; Rebecca Kaminski; James 

Brian Shillingburg; Michael Yelvington, 

Defendants—Appellants. 

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:21-CV-937

Before Richman, Chief Judge, and Wiener and Willett, Circuit 

Judges.

Don R. Willett, Circuit Judge:

A disabled public-school student was sexually assaulted by another 

student with known violent tendencies. Despite knowing of this attack, the 

victim’s teachers let both her and her aggressor wander the school 

unsupervised, and she was again assaulted by the very same student. The 

victim’s mother sued various school officials under 42 U.S.C. § 1983,

alleging liability under the so-called “state-created danger” doctrine, an 

United States Court of Appeals

Fifth Circuit

FILED

March 16, 2023

Lyle W. Cayce

Clerk

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exception to the general rule that government has no duty under the Due 

Process Clause to protect people from privately inflicted harms. The school 

officials sought dismissal on qualified-immunity grounds, arguing that the 

state-created danger doctrine was not clearly established in this circuit when 

the underlying events occurred. The district court denied their motion. 

But the school officials are right. This circuit has never adopted a 

state-created danger exception to the sweeping “no duty to protect” rule. 

And a never-established right cannot be a clearly established one. Nor do we 

think it prudent to adopt a never-recognized theory of § 1983 liability in the 

absence of rigorous briefing that grapples painstakinglywith how such a cause 

of action, however widely accepted in other circuits, works in terms of its 

practical contours and application, details on which our sister circuits 

disagree. Also, beyond the lack of thorough briefing, we are reluctant to 

expand substantive due process doctrine given the Supreme Court’s recent 

forceful pronouncements signaling unease with implied rights not deeply 

rooted in our Nation’s history and tradition. This is especially so here, as our 

unbroken precedent counsels us to rule instead on a narrower ground. 

Accordingly, we REVERSE and REMAND with instructions to dismiss 

the § 1983 claim.

I

A

Denise Fisher, as next friend of M.F., a minor, alleged the following 

facts in her complaint:

M.F. was a student at James Bowie Middle School (JBMS)in the Fort 

Bend Independent School District (FBISD). Denise Fisher is her mother.

Jodi Moore and Amna Bilal were M.F.’s teachers at JBMS. James 

Shillingburg and Michael Yelvington were the principal and vice principal, 

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respectively. Rebecca Kaminski was the manager of FBISD’s special-needs 

program.

M.F. suffers from several mental and physical disabilities. When the 

relevant events occurred in the fall of 2019, M.F. was around thirteen years 

old but had the cognitive ability of a four- or five-year-old. Her conditions 

qualify her for services under the Individuals with Disabilities Education 

Act.1 In accordance with IDEA, M.F.’s attendance at JBMS is governed by 

an Individualized Education Program (IEP). An IEP is a “comprehensive 

plan prepared by a child’s . . . teachers, school officials, and the child’s 

parents” and “the means by which special education and related services are 

‘tailored to the unique needs’ of a particular child.”2 M.F.’s IEP noted that 

she sometimes “left her classroom without the teacher’s permission” and 

therefore “need[ed] assistance transitioning throughout the school day.” 

Accordingly, the IEP provided, among other things, that, “[f]or [M.F.’s] 

safety, escorting her during transitions within the school building will be 

required.” In fact, M.F. was to be “escorted at all times in middle school.”

R.R. is another minor student at JBMS. He had a history of severe 

behavior problems, including violence against other students and teachers, 

which was known to JBMS staff. Among his many infractions were 

“[h]itting students in the head with rocks”; “[p]oking a student in the eye”; 

“[h]itting other students with a belt”; “[t]hreatening to burn a teacher to 

death”; and “[b]iting,” “[k]icking[,] and spitting on students.” According 

to the complaint, JBMS administrators knew that R.R. posed an especially 

serious risk to female students, whom he frequently taunted with obscene 

1 See 20 U.S.C. § 1414(d).

2 Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 

(2017) (citations omitted).

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remarks. Additionally, R.R. once told school staff that he “was going to be a 

rapist when he grows up.” R.R.’s sexual misconduct was not limited to verbal 

abuse. He repeatedly entered the girls’ restroom at school and on one 

occasion, groped a female classmate. Another incident involved R.R. pulling 

his pants down to expose his genitals and then urinating on the wall. R.R. was 

also subject to an IEP requiring him to be escorted and supervised at all 

times—not for his safety, but for that of the other students.

On September 4, 2019, notwithstanding the IEP requirements, M.F. 

and R.R. were “both allowed to wander . . . out of their respective classes” 

without supervision. R.R. and M.F. “ended up in the boys’ restroom, where 

R.R. forced M.F. to perform oral sex on him.” School employees learned of 

the incident when they found R.R. and M.F. coming out of the bathroom and 

questioned both students about what they were doing there. M.F. conveyed 

to the staff members that she had been sexually assaulted. Upon investigating 

her claim, FBISD confirmed from the security camera footage that both 

R.R. and M.F. were in the boys’ restroom at the time of the assault. As a 

result, the complaint alleges, FBISD and the other defendants were on 

notice that R.R. posed a specific threat to M.F.

Then it happened again.

On November 12, 2019, Jodi Moore and Amna Bilal once again 

“permitted M.F. to leave her classroom” and navigate the school hallways 

without supervision in violation of M.F.’s IEP. At the same time, “Moore 

and Bilal allowed R.R. to leave his classroom” and wander the hallways by 

himself in violation of his IEP. M.F. entered the girls’ bathroom, and R.R. 

followed her inside. R.R. climbed under the stall M.F. was using and sexually 

assaulted her again. After an investigation, FBISD confirmed that R.R. had 

sexually assaulted M.F. in the girls’ restroom. The Texas Education Agency 

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also investigated the November 12, 2019 assault and determined that FBISD

had violated both M.F.’s and R.R.’s IEPs.

B

In March 2021, Fisher filed suit on M.F.’s behalf in federal district 

court against FBISD and the individual school-official defendants, Jodi 

Moore, Amna Bilal, James Brian Shillingburg, Michael Yelvington, and 

Rebecca Kaminski. The complaint asserted (1) a claim against all defendants 

under 42 U.S.C. § 1983, on the theory that they had “created or increased 

the danger to M.F.” and “acted with deliberate indifference” in violation of 

the Due Process Clause of the Fourteenth Amendment; and (2) a claim 

against FBISD under 20 U.S.C. § 1681, better known as Title IX.

Relevant to this appeal, the individual defendants moved to dismiss

the § 1983 claim under Federal Rule of Civil Procedure 12(b)(6), contending 

they were entitled to qualified immunity. The district court denied the 

motion in a one-page order, stating only that “Defendants ha[d] not raised 

grounds sufficient to justify the partial dismissal requested.” The individual 

defendants then filed this interlocutory appeal.

II

We have jurisdiction over this interlocutory appeal from the district 

court’s denial of qualified immunity, and our review is de novo.3 “On appeal 

from a motion to dismiss, this court accepts all well-pleaded facts as true and 

views them in the light most favorable to the plaintiff.”4

3 See Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir. 2003).

4 De La Paz v. Coy, 786 F.3d 367, 371 (5th Cir. 2015).

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III

Appellants insist they are entitled to qualified immunity because the 

state-created danger theory of liability was not clearly established in this 

circuit when the underlying events occurred. Bound by our precedent, we 

agree.

“The doctrine of qualified immunity protects government officials 

‘from liability for civil damages insofar as their conduct does not violate 

clearly established statutory or constitutional rights of which a reasonable 

person would have known.’”5 “Qualified immunity shields federal and state 

officials from money damages unless a plaintiff pleads facts showing (1) that 

the official violated a statutory or constitutional right, and (2) that the right 

was ‘clearly established’ at the time of the challenged conduct.”6

Appellants contend that as of November 2019, when the events took 

place, it was not clearly established that plaintiffs have a right to be free from 

state-created dangers. Appellants are correct.

The Due Process Clause of the Fourteenth Amendment provides that 

“[n]o State shall . . . deprive any person of life, liberty, or property, without 

due process of law.”7 “The Due Process Clause . . . does not, as a general 

matter, require the government to protect its citizens from the acts of private 

actors.”8 We have recognized just one exception to this general rule: “when 

[a] ‘special relationship’ between the individual and the state imposes upon 

5 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 818 (1982)).

6 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).

7 U.S. Const. amend. XIV, § 1.

8 McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002) (citing 

DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989)).

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the state a constitutional duty to protect that individual from known threats 

of harm by private actors.”9 However, “a number of our sister circuits have 

adopted a ‘state-created danger’ exception to the general rule, under which 

a state actor who knowingly places a citizen in danger may be accountable for 

the foreseeable injuries that result.”10 M.F. brings her due process claim 

against Appellants only under the second exception, the state-created danger 

theory.

The problem for M.F. is that “the Fifth Circuit has never recognized 

th[e] ‘state-created-danger’ exception.”11 In our published, and thus 

binding, caselaw, “[w]e have repeatedly declined to recognize the statecreated danger doctrine.”12 For this reason, M.F. “ha[s] not demonstrated a 

clearly established substantive due process right on the facts [she] 

allege[s].”13 The district court thus erred in denying qualified immunity to 

Appellants.

9 Id. at 313.

10 Id.

11 Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020).

12 Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020); see also, e.g., Shumpert 

v. City of Tupelo, 905 F.3d 310, 324 n.60 (5th Cir. 2018) (“[T]he theory of state-created 

danger is not clearly established law.” (listing cases)); Kovacic v. Villarreal, 628 F.3d 209, 

214 (5th Cir. 2010) (“The Fifth Circuit has not adopted the ‘state-created danger’ theory 

of liability.”); Bustos v. Martini Club Inc., 599 F.3d 458, 466 (5th Cir. 2010) (“But this 

circuit has not adopted the state-created danger theory.”); Rios v. City of Del Rio, 444 F.3d 

417, 422 (5th Cir. 2006) (“[N]either the Supreme Court nor this court has ever either 

adopted the state-created danger theory or sustained a recovery on the basis thereof.”); 

Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004) (“This court has consistently 

refused to recognize a ‘state-created danger’ theory of § 1983 liability even where the 

question of the theory’s viability has been squarely presented.”).

13 Keller, 952 F.3d at 227.

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Even though we repeat today that the state-created danger doctrine is 

not clearly established in our circuit, to our knowledge we have not 

categorically ruled out the doctrine either; we have merely declined to adopt

this particular theory of liability. To be sure, we have suggested what 

elements any such theory would include—should we ever adopt it, of course.

For example, on one occasion, we indicated that a state-created danger 

theory would require “a plaintiff [to] show [1] the defendants used their 

authority to create a dangerous environment for the plaintiff and [2] that the 

defendants acted with deliberate indifference to the plight of the plaintiff.”14

We also stated that the defendant “‘must have used their authority to create 

an opportunity that would not otherwise have existed for the third party’s 

crime to occur.’”15 Nonetheless, as we have held time and again, the right to 

be free from state-created danger is not clearly established in this circuit.16

We acknowledge that, as of November 2019, a majority of our sister 

circuits had adopted the state-created danger theory of liability in one form 

or another.17 And, as M.F. points out, sometimes a “robust ‘consensus of 

persuasive authority’” may suffice to clearly establish a constitutional 

14 Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th 

Cir. 2012) (en banc) (quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537–38 (5th Cir. 

2003) (alterations in original)).

15 Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001)); 

accord Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1002 (5th Cir. 2014).

16 See, e.g., Keller, 952 F.3d at 227.

17 See Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001); Okin v. Vill. 

of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 428 (2d Cir. 2009); Kneipp v. Tedder, 95 

F.3d 1199, 1211 (3d Cir. 1996); Doe v. Rosa, 795 F.3d 429, 438–39 (4th Cir. 2015); Kallstrom 

v. City of Columbus, 136 F.3d 1055, 1066–67 (6th Cir. 1998); King v. E. St. Louis Sch. Dist. 

189, 496 F.3d 812, 817 (7th Cir. 2007); Carlton v. Cleburne Cnty., 93 F.3d 505, 508 (8th Cir. 

1996); Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989); Uhlrig v. Harder, 64 F.3d 

567, 572 (10th Cir. 1995).

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right.18 But even putting aside our binding precedent that the doctrine is not 

clearly established in our circuit, our cases foreclose this specific line of 

reasoning as well. As we have held, “the mere fact that a large number of 

courts had recognized the existence of a right to be free from state-created 

danger in some circumstances . . . is insufficient to clearly establish” the 

theory of liability in our circuit.19 “We reasoned that, despite widespread 

acceptance of the [state-created danger] doctrine [in other circuits], the 

circuits were not unanimous in [the doctrine’s] ‘contours’ or its 

application.”20 We therefore reject M.F.’s argument that out-of-circuit 

precedent clearly established her substantive due process right to be free 

from state-created danger.21

Finally, M.F. suggests that “[t]his is the case the Court has been 

waiting for,” and she invites us to—finally—adopt the state-created danger 

theory of § 1983 liability. We decline to do so.22

First, M.F. has not briefed the issue or explained how the doctrine 

would work in this case. She asserts only that her appeal “presents the right 

set of facts which, if believed, would trigger the application of the statecreated danger theory.” We think it “especially unwise” to fashion a new 

cause of action without the benefit of rigorous briefing.

23 We are particularly 

hesitant to expand the substantive due process doctrine under these 

18 See Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (quoting al-Kidd, 

563 U.S. at 742).

19 McClendon v. City of Columbia, 305 F.3d 314, 330 (5th Cir. 2002).

20 Morrow v. Meachum, 917 F.3d 870, 879 (5th Cir. 2019).

21 See McClendon, 305 F.3d at 330.

22 See Pearson, 555 U.S. at 236 (federal courts may choose which of the two prongs

of qualified-immunity analysis to address first).

23 Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir. 2002).

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circumstances—not merely because we have “repeatedly” declined to do so 

on this exact issue,24 but also because the Supreme Court has expressed a 

strong reluctance to do so more generally in this area of constitutional law.

25

When adopting the state-created danger doctrine, our sister circuits tend to 

reason along the lines of (1) the Supreme Court left open the question in 

DeShaney,26 and (2) other courts have adopted the doctrine.27 More recently, 

however, the Court has reiterated—forcefully—that rights protected by 

substantive due process “must be ‘deeply rooted in this Nation’s history and 

tradition’ and ‘implicit in the concept of ordered liberty.’”28 Without 

briefing on how the state-created danger doctrine meets the reinvigorated 

test, we are content to leave the question of adopting the doctrine for another 

day.

Second, in light of caselaw from some of our sister circuits which have

adopted the doctrine, we have some doubts as to whether the facts alleged in 

the complaint here state a plausible claim against school officials for student24 Estate of Lance, 743 F.3d at 1002 (listing cases).

25 E.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2247–48 (2022) 

(“As the Court cautioned in Glucksberg, ‘[w]e must . . . exercise the utmost care whenever 

we are asked to break new ground in this field, lest the liberty protected by the Due Process 

Clause be subtly transformed into the policy preferences of [judges].’” (quoting 

Washington v. Glucksberg, 521 U.S. 702, 720 (1997))); Collins v. Harker Heights, 503 U.S. 

115, 125 (2009) (“As a general matter, the Court has always been reluctant to expand the 

concept of substantive due process because guideposts for responsible decisionmaking in 

this unchart[ed] area are scarce and open-ended.”).

26 489 U.S. 189 (1989).

27 E.g., Irish v. Fowler, 979 F.3d 65, 73–74 (1st Cir. 2020); see also, e.g., Kneipp, 95 

F.3d at 1205 (“In DeShaney, the Supreme Court left open the possibility” of a state-created

danger claim, and “[s]everal of our sister courts of appeals have cited this comment by the 

Court as support for utilizing a state-created danger theory to establish a constitutional 

claim under 42 U.S.C. § 1983.”).

28 Dobbs, 142 S. Ct. at 2242 (quoting Glucksberg, 521 U.S. at 721).

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on-student violence.

29 Ordinarily, we would expect a party encouraging us to 

adopt a new cause of action to distinguish adverse authorities. Given these 

uncertainties and the parties’ decision not to brief the subject, “[w]e decline 

to use this . . . opportunity to adopt the state-created danger theory in this 

case because the allegations would not support such a theory.”30

Our holding today should not be misunderstood to say M.F.—or any 

future plaintiff—lacks any federal redress whatsoever. To the contrary, we 

have recognized that Title IX provides a cause of action for “student-onstudent harassment” under certain circumstances.31 We observe that M.F. 

asserted a Title IX claim in her complaint, and that proceedings on that claim 

have been stayed pending this interlocutory appeal. We express no view on 

the merits of that claim on remand and mention it here only to support our 

conclusion that expanding substantive due process in this case would not be 

appropriate in light of our settled precedent.

IV

The facts giving rise to this lawsuit are unquestionably horrific. And 

Title IX may well provide M.F. a remedy. But § 1983 does not, as the 

29 See, e.g., Morgan v. Town of Lexington, 823 F.3d 737, 744 (1st Cir. 2016) (“An 

alleged failure of the school to be effective in stopping bullying by other students is not 

action by the state to create or increase the danger.”); Stevens v. Umsted, 131 F.3d 697, 705–

06 (7th Cir. 1997) (holding that a school superintendent’s failure to remove students who 

sexually assaulted the disabled plaintiff, and his failure to place the plaintiff in a safer 

environment, nonetheless did not give rise to liability under the state-created danger 

doctrine); Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994) (holding 

that school officials “did not create a hazardous situation by placing the aggressor and 

victim [students] in the same location . . . [n]otwithstanding defendants’ specific 

knowledge of the propensities of the aggressors”).

30 Magee, 675 F.3d at 865.

31 I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 372 (5th Cir. 2019) (listing 

elements of a Title IX claim involving alleged student-on-student harassment).

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Supreme Court’s qualified-immunity doctrine “protects government 

officials ‘from liability for civil damages insofar as their conduct does not 

violate clearly established statutory or constitutional rights of which a 

reasonable person would have known.’”32 We are bound by our precedent, 

which has repeatedly declined to adopt the state-created danger doctrine. 

And a right never established cannot be one clearly established. As we 

recently put it, “A claim that we have expressly not recognized is the 

antithesis of a clearly established one.”33

Controlling precedent requires us to REVERSE the district court 

and REMAND with instructions to enter judgment in Appellants’ favor on 

M.F.’s § 1983 claim.

32 Pearson, 555 U.S. at 231 (citation omitted).

33 Watts v. Northside Indep. Sch. Dist., 37 F.4th 1094, 1096 (5th Cir. 2022).

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Jacques L. Wiener, Jr., Circuit Judge, concurring:

I concur in the well-written and well-reasoned opinion written by my 

colleague, Judge Willett, joined by Chief Judge Richman. Although we are 

bound by this court’s precedent, I disagree with its refusal to join the nine 

other circuits that have adopted the state-created danger cause of action 

under 42 U.S.C. § 1983 to permit individuals to sue state actors for damages 

resulting from their acts or failures to act. I am convinced that it is well past 

time for this circuit to be dragged screaming into the 21st century by joining 

all of the other circuits that have now recognized the state-created danger 

cause of action. I acknowledge that we can only do so by taking this case en 

banc. 

The extreme and uncontested facts of this case present an excellent 

opportunity for us to do so. As a senior judge, I could participate on the threejudge panel that heard and is deciding this case. And as a senior judge, I shall 

participate as a voting member of the en banc court if this case is re-heard en 

banc. But, as a senior judge, I cannot call for an en banc poll or even vote in 

such a poll if one is called for by an active judge of this court. I therefore write 

this dissent in the hope that one of my active colleagues will call for an en 

banc poll in an effort to have this circuit join the other nine that have 

previously recognized the state-created danger cause of action. The horrific 

facts of this case, as reported by Judge Willett in his majority opinion for this 

panel, present an ideal vehicle for this circuit’s consideration of my proposal 

that we join the supermajority of other circuits that have unanimously 

recognized the state-created danger cause of action. If we do rehear this case 

en banc, the parties will have an ample opportunity to brief whether the facts 

alleged in the instant complaint state a plausible claim against school officials 

for student-on-student violence, and to distinguish the adverse authorities. I 

see this case as the perfect vehicle for our circuit to join every other circuit 

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that has recognized the state-created danger cause of action in § 1983 claims 

against state actors. This is why I respectfully concur.

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