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. e du/thir dc ir c uit_1997/281Filed December 23, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-2134

JEROME P. MORSE, Individually and as Executor of th e Estate of Diane M. Morse, Deceased, and as Parent a nd Natural Guardian of JUREE N. MORSE, a Minor, Appellant

v.

LOWER MERION SCHOOL DISTRICT; DAYCARE ASSOCIATION OF MONTGOMERY COUNTY, INC., d/b/a

ARDMORE CHILD CARE CENTER; JAMISON CONTRACTORS, INC.; BUTTONWOOD COMPANY, INC.;

UNITED STATES ROOFING CORPORATION

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil Action No. 96-cv-04576)

Argued July 24, 1997

Before: SCIRICA and NYGAARD, Circuit Judges and DEBEVOISE, District Judge*

(Filed December 23, 1997)

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*The Honorable Dickinson R. Debevoise, United State s District Judge for the District of New Jersey, sitting by designation.PAUL J. DRUCKER, ESQUIRE

(ARGUED) Jablon, Epstein, Wolf & Drucker The Bellevue, Ninth Floor

Broad Street at Walnut Philadelphia, Pennsylvania 19102

WILLIAM F. JOSEPH, ESQUIRE 1831 Chestnut Street, Suite 1001 Philadelphia, Pennsylvania 19103

Attorneys for Appellant

DIANE C. BERNOFF, ESQUIRE (ARGUED)
JAY B. HARRIS, ESQUIRE

Fineman & Bach 1608 Walnut Street, 19th Floor Philadelphia, Pennsylvania 19103

Attorneys for Appellees, Lower Merion School District; Daycare Association of Montgomery County, Inc., d/b/a

Ardmore Child Care Center

JAMES J. GILLESPIE, JR.,
ESQUIRE Stolarski, Gillespie & Hendrzak 2005 Market Street, Suite 2030 Philadelphia, Pennsylvania 19103

Attorney for Appellee, Jamison Contractors, Inc.

OPINION OF THE COURT

SCIRICA, Circuit Judge.

This civil rights action raises the question of wha t a plaintiff must plead in order to state a viable cla im under the state-created danger theory of 42 U.S.C.A. S 19 83 (West 1994 & Supp. 1997). The district court granted defe ndants' motion to dismiss under Fed. R. Civ. P. 12(b)(6), f inding

2plaintiff failed to plead one of the elements of th e test set

forth by this court in Kneipp v. Tedder, 95 F.3d 11 99 (3d Cir. 1996) and thereby failed to state a claim upon which relief could be granted. Although we analyze the ap plicable law somewhat differently from the district court, w e will

affirm.1

I

Background and Procedural History

On July 28, 1994, Diane Morse, a teacher at the Ard more Child Care Center, was shot and killed in front of a classroom of children by Arcelia Truman ("Trudy") S tovall, a local resident with a history of mental illness. The Ardmore Child Care Center, which is owned and opera ted by the Daycare Association of Montgomery County, ha s operated out of a wing of Lower Merion High School for several years, under a lease between the Daycare

Association and the Lower Merion School District. S tovall, who was subsequently convicted of the murder of Dia ne Morse and incarcerated in a psychiatric hospital, w as able to enter the building through an unlocked rear entr ance.

In the weeks preceding the shooting, several contra ctors were working on construction projects at the high s chool, in the vicinity of the Ardmore Child Care Center locat ion. Jamison Contractors, Inc. was engaged in constructi on and repair activities in and around the school building

. Buttonwood Company, Inc. was painting a swimming po ol within the building, and United States Roofing Corp oration was repairing the roof in the area adjacent to the swimming pool. To accommodate their construction projects, t he

contractors made use of the back entrance to the bu ilding. Jamison employees would prop open the door to facil itate

the movement of materials in and out of the buildin g. As

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1. We may affirm the lower court's ruling on differ ent grounds, provided

the issue which forms the basis of our decision was before the lower court. See Mark v. Borough of Hatboro, 51 F.3d 1137 , 1139 n.1 (3d Cir. 1995), cert. denied, 116 S. Ct. 165 (1995); Neely v . Zimmerman, 858 F.2d 144, 149 (3d Cir. 1988).

3part of its work on the swimming pool, Buttonwood s et up

a compressor outside of the building, which was con nected to air-driven tools in the pool area by a series of two inch cables. In order to reach the tools in the pool are a, Buttonwood ran these cables through the back entran ce to the school. For their part, the employees of U.S. R oofing used the open door as a means of access to the rest rooms located within the building.

This action was brought under 42 U.S.C. S 1983 by Diane Morse's husband on his own behalf, as executo r of her estate, and in a representative capacity on beh alf of their daughter. The complaint alleges, inter alia, that the Lower Merion School District and the Daycare Associ ation deprived Diane Morse of her right to be free from p hysical harm, and deprived plaintiff and his daughter of th eir fundamental right of association with the decedent. 2 In particular, plaintiff claims the School District ha d a written policy which provided that all side and back entran ces to the school were to be kept locked at all times. The complaint alleges that, although aware of the unsec ured back entrance, the School District and the Daycare

Association made no effort to correct the condition , and in fact facilitated the workers' access by unlocking t he back entrance each day to assist the various contractors . In addition, the complaint alleges the School District and the Daycare Association were aware of other security br eaches prior to July 1994 that had allowed unauthorized pe rsons to gain access to the building. These previous inci dents had resulted in theft, vandalism, and, in at least one instance, assault. As a result, plaintiff asserts, the "envir onment created by [defendants] was dangerous, was known by them to be dangerous and created the opportunity fo r Trudy Stovall's attack on the decedent that would n ot
otherwise have existed."

Defendants filed a motion to dismiss under Rule 12( b)(6)

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2. The complaint also raised various state law clai ms against Jamison, Buttonwood and U.S. Roofing. The district court dis missed the state law claims for lack of supplemental jurisdiction. In or der to protect these claims, plaintiff subsequently filed an action in s tate court against the private defendants.

4on two grounds. First, defendants contended that ne ither

the School District nor the Daycare Association was acting under color of state law, as required by Section 19 83.3 Second, defendants argued that Mr. Morse's complain t failed to meet the requirements for a state-created danger

claim. The district court declined to address defen dants' color of state law arguments, ruling only on the su fficiency of the state-created danger claim.4

The district court read plaintiff 's complaint to a llege three distinct theories.5 The first theory of liabi lity was that defendants breached their duty to maintain a safe w orking environment by leaving the back entrance unsecured. The second theory premised liability on defendants' all eged policy of refusing to institute and maintain safety procedures, thus demonstrating a deliberate indiffe rence to Ms. Morse's constitutional rights. The final theory alleged that the School District and the Daycare Associatio n were liable under the state-created danger theory ofS 19 83. Although the district court analyzed each theory an d found that plaintiff failed to state a claim under any of them, the only theory raised on appeal, and the only one revi ewed here, is plaintiff's state-created danger theory.

The district court began its analysis of plaintiff' s claim by examining our recent decision in Kneipp v. Tedder, in which we adopted the state-created danger theory of liabi lity under S 1983. 95 F.3d 1199, 1211 (1996). In particu lar, the district court looked to whether "liability based o n the

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3. With respect to this ground, defendants submitte d the lease agreement between the Daycare Association and the S chool District, as well as the affidavit of the Daycare Association's Executive Director, in support of their 12(b)(6) motion. The district cour t noted that it could have, at its discretion, converted the motion into a motion for summary judgment. It declined to do so, however, finding th ese documents

inconclusive on the color of state law issue. Morse v. Lower Merion Sch. Dist., 1996 WL 677514, *2 (E.D. Pa. Nov. 20, 1996).

4. Because we, too, find that plaintiff has failed to state a claim under the state-created danger theory, we need not addres s the question whether the School District or the Daycare Associat ion were acting

under color of state law at the time of Diane Morse 's death.

5. In his briefs on appeal, plaintiff denies this, and states that his complaint relied solely on the state-created danger theory of liability.

5state-created danger theory must be predicated on

affirmative acts by a state actor." Morse v. Lower Merion Sch. Dist., 1996 WL 677514, at *5 (E.D. Pa. Nov. 20 , 1996).6 The court noted that, unlike the facts in Kneipp, w hich involved affirmative acts by the police that create d an inherently dangerous situation for the plaintiff, t he complaint here attempted to establish liability bas ed primarily on defendants' failure to act. Because su ch failures to act "have consistently been held non-ac tionable under Section 1983,"7 the district court concluded that plaintiff could not support his S 1983 claim by rel ying on allegations that defendants failed to prevent the c ontractors from propping open the back door (Complaint PP 26, 28, 30), failed to detain Ms. Stovall prior to the day of the murder (Complaint P 31), and refused to institute a nd maintain security (Complaint P 42). The district co urt held the only allegation in the complaint which could su pport plaintiff 's state-created danger theory was that d efendants

themselves unlocked the back entrance to the school to

facilitate the work of the various contractors. But the

district court declined to examine whether this con stituted an affirmative act, and instead based its decision on a different element of the Kneipp analysis.

The district court premised its decision on Kneipp' s holding that a state actor can only be held liable if "a relationship [existed] between the state and the pe rson injured . . . during which the state places the vic tim in danger of a foreseeable injury." Kneipp, 95 F.3d at 1209 (citations omitted). Because there was no dispute w hether this relationship existed between the police and th e plaintiff

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6. The district court acknowledged that "the line b etween action and omission is not always clear." The affirmative act requirement is discussed in greater detail, infra.

7. Morse, 1996 WL 677514, at *6 (citing DeShaney v. Winnebago County Dept. of Social Serv., 489 U.S. 189 (1989); D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert. denied, 506 U.S. 1079 (1993); Searles v. Southeaste rn Pennsylvania Transp. Auth., 990 F.2d 789 (3d Cir. 1993); Brown v . Grabowski, 922 F.2d 1097 (3d Cir. 1990), cert. denied, 501 U.S. 12 18 (1991); Huston v. Montgomery County, No. Civ. A. 95-4209, 1995 WL 766 308 (E.D. Pa. Dec. 28, 1995)).

6in Kneipp, the district court looked to pre-Kneipp decisions

to analyze the parameters of this requirement. The district court examined Doe v. Methacton Sch. Dist., 880 F. Supp. 380, 386 (E.D. Pa. 1995), aff'd, 124 F.3d 185 (3d C ir. 1997), which held that the state-created danger the ory would only affix liability if the victim of the res ulting harm is "known and identified," and not "simply a member of the greater public," and Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 (3d Cir. 1995), cert. denied, 116 S. Ct. 165 (1995), where we held that "cases where the state-c reated danger theory was applied were based on discrete, g rossly reckless acts committed by the state or state actor s. . . leaving a discrete plaintiff vulnerable to foreseea ble injury." Based on its reading of these two cases, as well as Martinez v. California, 444 U.S. 277 (1980) and Commonwealth Bank & Trust Co., N.A. v. Russell, 825 F.2d 12 (3d Cir. 1987), the district court concluded that, "to make out a state -created danger claim, a plaintiff must allege facts indicat ing that there was a particular danger to the victim of the resulting harm." Morse, 1996 WL 677514, at *8. Because plaint iff failed to allege that "Diane Morse faced a particul ar danger distinct from that faced by the population of perso ns inside the school" as a result of the back entrance being left unlocked, the district court granted defendants' mo tion to

dismiss. Id.

II

We have jurisdiction under 28 U.S.C. S 1291, and ou r review of the grant of a motion to dismiss is plena ry. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250 (3d Cir. 1994). When considering a Rule 12(b)(6) motion, we are required to accept as true all of the allegations i n the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorabl e to the plaintiff. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989); D.P. Enter. Inc. v. Bucks County Co mmunity College, 725 F.2d 943, 944 (3d Cir. 1984). A Rule 1 2(b)(6) motion should be granted "if it appears to a certai nty that no relief could be granted under any set of facts w hich could be proved." D.P. Enter. Inc., 725 F.2d at 944 ; Richardson v. Pennsylvania Dep't of Health, 561 F.2 d 489,

7492 (3d Cir. 1977). But a court need not credit a

complaint's "bald assertions" or "legal conclusions " when deciding a motion to dismiss. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d C ir. 1997)(quoting Glassman v. Computervision Corp., 90 F.3d 617, 628(1st Cir. 1996)).8 Mitchell v. Duvall Count y Sch. Bd., 107 F.3d 837, 839-40 (11th Cir. 1997)(affirming dis missal of state-created danger claim where it was "beyond doubt that appellant cannot prove a set of facts" which s upport his claim); Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994), cert. denied, 514 U.S. 1017 (1995) (same).

III

Discussion

Plaintiff brought this civil rights action under 42 U.S.C. S 1983.9 By itself, Section 1983 does not create an y rights, but provides a remedy for violations of those right s created by the Constitution or federal law. Baker v. McColl an, 443

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8. See also Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure S 1357 (2d ed. 1997) (noting that courts, when examining 12(b)(6) motions, have rejected "legal conclusions, " "unsupported conclusions," "unwarranted inferences," "unwarrante d deductions," "footless conclusions of law," or "sweeping legal c onclusions cast in the form of factual allegations"); Leeds v. Meltz, 85 F .3d 51, 53 (2d Cir. 1996)(affirming dismissal of S 1983 action and noti ng that "[w]hile the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice."); Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) ("[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffic e to prevent a motion to dismiss.").

9. Section 1983 provides:

Every person who, under color of any statute , ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjecte d, any citizen of the United States or other person within the jur isdiction thereof to

the deprivation of any rights, privileges, or im munities secured by the Constitution and laws, shall be liable to th e party injured in an action at law, suit in equity, or other prop er proceeding for

redress.

42 U.S.C.A. S 1983.

8U.S. 137, 144 n.3 (1979); Kneipp, 95 F.3d at 1204. In order

to state a claim, plaintiff must show that defendan ts, acting under color of state law, deprived him of a right s ecured by

the Constitution or the laws of the United States. See Parratt v. Taylor, 451 U.S. 527, 535 (1981), overru led on other grounds, Daniels v. Williams, 474 U.S. 327 (1 986).

As noted, plaintiff alleged defendants subjected Di ane Morse to a dangerous and ultimately fatal situation , in violation of her Fourteenth Amendment right to subs tantive due process, by allowing a mentally deranged and homicidal third party to have access to the day car e center where Diane Morse worked. Although the general rule is that the state has no affirmative obligation to pro tect its citizens from the violent acts of private individua ls, courts have recognized two exceptions to this rule. See, e .g., D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2 d 1364, 1369-73 (3d Cir. 1992) (en banc), cert. denied, 506 U.S. 1079 (1993); Uhlrig v. Harder, 64 F.3d 567, 572 (10 th Cir. 1995), cert. denied, ___ U.S. #6D6D 6D#, 116 S. Ct. 924 (1996). The first of these is commonly known as the "special relationship" exception, and allows a plaintiff to recover "when the state enters into a special relationship with a particular citizen . . . [and] fails, under suffici ently culpable circumstances, to protect the health and safety of the citizen to whom it owes an affirmative duty." D.R., 972 F.2d at 1369; see also Black v. Indiana Area Sch. Dist., 985 F.2d 707, 713 (3d Cir. 1993). The second exception is th e"statecreated danger" theory of liability.

The state-created danger theory had it origins in t he Supreme Court's decision in DeShaney v. Winnebago County Dep't of Social Serv., 489 U.S. 189 (1989). The petitioner in that case was a young boy who was chronically abused by his father. The county depart ment of social services, after receiving many complaints ab out the boy's mistreatment, took several steps to ensure hi s safety. But despite these efforts, the boy remained in his father's custody, and was eventually beaten so savagely that he suffered severe brain damage. The boy and his mothe r sued the department of social services under the "specia l relationship" theory of 42 U.S.C. S 1983 for their failure to protect the boy from his father. Although the Court

9ultimately rejected plaintiff's claim, 489 U.S. at 195-96, it

went on to explain that, "[w]hile the State may hav e been aware of the dangers that Joshua faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them." 495 U.S. a t 201. Based on that language, several courts of appeals h ave allowed claims under Section 1983 on the "state-cre ated danger" theory. See, e.g., Dwares v. City of New Yo rk, 985 F.2d 94, 99 (2d Cir. 1993); Reed v. Gardner, 986 F. 2d 1122, 1125 (7th Cir. 1993), cert. denied, 510 U.S. 947 (1993); Freeman v. Ferguson, 911 F.2d 52, 55 (8th C ir. 1990); Cornelius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989), cert. denied, 494 U.S. 1066 (1990 ); Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. d enied, 498 U.S. 938 (1990).

We adopted the "state-created danger" theory in Kne ipp v. Tedder. The plaintiffs there were the parents and l egal guardians of Samantha Kneipp. Samantha and her husband, Joseph, were stopped by police while retur ning home on foot on a cold night in January. The police stopped the Kneipps a short distance from their hom e for allegedly causing a disturbance. According to the p olice, Samantha was visibly intoxicated - she had difficul ty walking, and smelled of alcohol and urine. During t he course of their discussion Joseph Kniepp expressed the need to relieve the Kneipps' babysitter, and asked the police if he could return home. Joseph testified that the police informed him he could leave, and he left assuming t hat they would either take Samantha to a hospital or th e police station. But the police sent Samantha home alone sh ortly thereafter. Approximately two hours later, Samantha was found lying at the bottom of an embankment across t he street from the Kneipps' home. As a result of her e xposure to the cold, Samantha suffered permanent brain dama ge. Plaintiffs brought suit, alleging the police office rs' actions deprived Samantha of her right to substantive due p rocess and her liberty interest in personal security. The district court granted summary judgment in favor of the defendants. We reversed, holding that the "state-cr eated danger theory is a viable mechanism for establishin g a constitutional claim under 42 U.S.C. S 1983," and t hat

10plaintiffs had raised a triable issue of fact under that

theory. Kneipp, 95 F.3d at 1211.

In reaching this conclusion, we applied the four-pa rt test articulated in Mark v. Hatboro, which holds a state actor
liable if:

(1) the harm ultimately caused was foreseeab le and fairly direct; (2) the state actor acted in willful disregard for the safety of the plaintiff; ( 3) there existed some relationship between the state and the plaintiff; (4) the state actors used their authority to create an opportunity that otherwise would not have ex isted for the third party's crime to occur.

Kneipp, 95 F.3d at 1208 (quoting Mark, 51 F.3d at 1 152). We also noted that "[t]hose courts which have recog nized the state-created danger theory have employed a del iberate indifference standard." Id. at 1208 (citations omit ted). When this test is applied to the facts of this case, it becomes clear that plaintiff has not set forth a claim under S 19 83 upon which relief can be granted.

A. Foreseeable and Fairly Direct Harm

The first element of the Kneipp test requires that the harm ultimately caused was a foreseeable and a fair ly direct result of the state's actions. Although the plaintiff asserted this conclusion in his complaint, this is not necessarily sufficient to overcome defendants motio n to dismiss. As we have noted, we need not accept "bald assertions" or "legal conclusions" contained in the complaint. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)(q uoting Glassman v. Computervision Corp., 90 F.3d 617, 628 (1st Cir. 1996)). We hold that defendants, as a matter o f law, could not have foreseen that allowing construction workers

to use an unlocked back entrance for access to the school building would result in the murderous act of a men tally unstable third party, and that the tragic harm whic h ultimately befell Diane Morse was too attenuated fr om defendants' actions to support liability.

First, the complaint did not allege that defendants were aware of Stovall's violent propensities. There are no

11allegations that Stovall had made threats against D iane

Morse or any other persons at the Lower Merion High School, or even that she had a history of violent b ehavior. The only allegation in the complaint that addresses whether defendants should have foreseen the danger posed by Stovall that day was that, during the week precedin g the murder, she had been seen "loitering in the school and the school area." (Complaint P 31). Assuming that defen dants were aware of this fact, as we must when reviewing the grant of a motion to dismiss, this is insufficient as a matter of law to put defendants on notice that Stovall wou ld return in a few days with a .38 revolver and a homicidal i ntent.

Second, there is no allegation that defendants were aware of anyone posing a credible threat of violence to p ersons inside the school building. Although the complaint alleges that defendants were aware of previous "security br eaches" by unnamed persons, it does not allege that Stovall , or any other mentally deranged person, had entered the sch ool building previously. In addition, the complaint con tains no allegation, and plaintiff cannot prove any set of f acts, that

would demonstrate that defendants were aware of the likelihood that a mentally deranged person would en ter the

school in search of a victim.

Third, Stovall's attack was not a "fairly direct" r esult of defendants' actions. We recognize that plaintiff ha s alleged

that the harm which befell Ms. Morse was "a direct result of defendants' acts." But we are not bound to accep t a conclusory statement, and as a matter of law this c annot be true. Plaintiff's allegation that, as a result o f defendants'

decision to allow construction workers to have acce ss to the school through an unlocked rear entrance, Stovall w as able to enter the building and murder Diane Morse is insufficient to support liability. While we must ac cept the allegation that Stovall gained access to the buildi ng through the unlocked rear entrance, this does not m ean the

attack on Diane Morse occurred as a direct result o f defendants allowing the construction crews to prop open the door. The causation, if any, is too attenuated. Plaintiff can prove no set of facts which will provide the di rect causal connection between Stovall's deadly attack a nd any of defendants' allegedly improper acts.

12The cases which have found liability under the stat ecreated danger theory do not stretch the concepts o f foreseeability and causation this far. Kneipp itsel f involved a visibly inebriated and incapacitated woman who wa s left alone on the road by police. Consequently we conclu ded that "a reasonable jury could find that the harm li kely to befall Samantha if separated from [her husband] whi le in a highly intoxicated state in cold weather was indeed foreseeable" and could have led directly to her inj uries. 95

F.3d at 1208.

Similarly, the decisions to hold the state actors l iable under the state-created danger theory in Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), and Cornel ius v. Town of Highland Lake, 880 F.2d 348 (11th Cir. 1989 ), were premised on facts in which the harm visited on the plaintiffs was more foreseeable than the random att ack perpetrated by Stovall here. The plaintiff in Wood was the female passenger of a drunk driver who was pulled o ver late one evening by police. The driver was arrested and the car impounded, leaving Ms. Wood stranded on the road in a notoriously high crime area. After beginning thefiv e mile walk to her home, Ms. Wood accepted a ride from an unknown man who subsequently took her to a secluded area and raped her. Addressing the issue of foresee able harm, the court noted that the "inherent danger fac ing a woman left alone at night in an unsafe area is a ma tter of common sense." 879 F.2d at 590 (citations omitted).

In Cornelius, the United States Court of Appeals fo r the Eleventh Circuit found that prison and town officia ls could be liable to the plaintiff, who was abducted and he ld hostage for several days by prison inmates assigned to a community work program in the town hall where she w as employed. Reversing the lower court's grant of summ ary judgment, the court of appeals found that genuine i ssues of fact existed which related to the "special danger" created by the work squad's presence in the town hall. The cou rt
noted that the defendants in Cornelius knew of the dangerous propensities of the prison inmates assign ed to the work program, as well as the lack of supervisio n over those inmates, and thus "were aware of the danger p resent from the community work squad inmates." 880 F.2d at

13358. The ultimate manifestation of that danger was

therefore foreseeable. By contrast, there is no all egation in the complaint here that defendants knew that Stoval l posed a threat to anyone at Lower Merion High School, let alone

Diane Morse.

In this respect the case before us is more analogou s to the facts in Gregory v. City of Rogers, 974 F.2d 10 06 (8th Cir. 1992), cert. denied, 507 U.S. 913 (1993). In G regory, three friends were returning home from an evening o f drinking, with one of them, Stanley Turner, serving as designated driver. The police stopped their vehicle for running a red light, and in the process of making a routine warrant check, discovered an outstanding warrant fo r Turner's arrest. At his request, the police allowed Turner to drive to the station in order to clear up the matte r. After arriving at the station, Turner parked and went ins ide, leaving behind his two intoxicated passengers, and leaving the keys in the ignition. After waiting for thirty minutes, the passengers drove off, and were involved in a single car accident which killed the driver and injured the ot her passenger. Plaintiffs - the surviving passenger and the wife, son and estate of the decedent - brought a claim ag ainst the police under the state-created danger theory. T he district court granted the defendants' motion for s ummary judgment, and the United States Court of Appeals fo r the Eighth Circuit, sitting en banc, affirmed. The cour t concluded that even if the police were aware that b oth passengers were intoxicated, a reasonable trier of fact could not find that the police placed them in a dangerous situation by merely leaving them alone in the car. Id. at 1011 (contrasting the facts there with the facts in Wood). "Simply put, it was not unsafe for the intoxicated [passengers] to wait for Turner inside the car wher e it was parked until Turner inexplicably left the keys with them."

Id. at 1012. The court ruled that because Turner's unforeseeable act was the catalyst for the injury w hich plaintiffs suffered, the police could not be held l iable. Id.

The same can be said in the case before us. Here, i t was
not defendants' decision to allow the rear entrance to the school to remain open that precipitated or was the catalyst for the attack on Ms. Morse. Furthermore, we believ e that

14the harm allegedly created by the defendants in Gre gory

was more foreseeable than the harm allegedly create d here. Unlike the situation in Gregory, where the defendan ts were aware that intoxicated passengers were left behind in the car, the defendants here were unaware that any ment ally deranged person, let alone Stovall, was waiting out side the building for an opportunity to cause harm. Based on a review of the complaint, we find that plaintiff can prove no set of facts which will entitle him to relief. Defe ndants could not have foreseen the danger to Diane Morse, nor, a s a matter of law, can their actions be said to have di rectly caused the attack. Consequently, plaintiff has fail ed to plead adequately the foreseeable injury element of the Kneipp test.

B. Willful Disregard for Plaintiff's Safety

The second prong of the Kneipp test asks whether th e state actor acted with willful disregard for or del iberate indifference to plaintiff's safety. Kneipp , 95 F.3 d at 1208 & n.21. "[T]he environment created by the state actor s must be dangerous; they must know it to be dangerous; an d . . . [they] must have been at least deliberately indiffe rent." Johnson v. Dallas Indep. Sch. Dist., 38 F.3d 198, 2 01 (5th Cir. 1994), cert. denied, 514 U.S. 1017 (1995). See also Leffal v. Dallas Indep. Sch. Dist., 28 F.3d 521, 53 1 (5th Cir. 1994) ("[I]t is not enough to show that the state i ncreased the danger of harm from third persons; the [S] 1983 plaintiff must also show that the state acted with the requisite degree of culpability in failing to prote ct the plaintiff."). In other words, the state's actions m ust evince a willingness to ignore a foreseeable danger or ris k. Of course, the notion of deliberate indifference conte mplates a danger that must at least be foreseeable. In Kneipp , we focused on the police officers' decision to send Sa mantha Kneipp home alone, despite their awareness of her intoxicated and incapacitated state, as evidence of their deliberate indifference. In Cornelius, the court he ld the defendants could be liable based on their knowledge of the risk created by the presence of the community work squad inmates. 880 F.2d at 358. These factors are not pre sent

here. Defendants could not have been aware of the d anger posed by Stovall, nor could they have foreseen it. As a

15matter of law they cannot have acted with willful d isregard

for Diane Morse's safety.10

Our decision in Mark v. Borough of Hatboro is instr uctive. The plaintiff owned an auto repair business that wa s destroyed in a fire set by a volunteer firefighter. The plaintiff filed a S 1983 action against the borough and the

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10. The Kneipp court noted that "we have declined t o distinguish such terms as "deliberate indifference," "reckless indif ference," "gross negligence," or "reckless disregard" in the context of a violation of substantive due process under the Fourteenth Amendm ent." 95 F.3d at 1208 n.21 (citing Williams v. Borough of West Chest er, 891 F.2d 458, 464 n. 10 (3d Cir. 1989)). The concept of "willful disregard" fits within this same ill-defined category of mens rea. "Willfu l disregard" and "reckless indifference" appear to fall somewhere be tween intent, which "includes proceeding with knowledge that the harm i s substantially certain to occur" and negligence, which involves"th e mere unreasonable risk of harm to another." W. Page Keeton et al, Pro sser & Keeton on Torts S 34 at 212 (5th ed. 1984). Thus the term "wi llful" indifference is somewhat misleading, requiring not an intent to har m, but a failure to act appropriately in light of a known or obvious ri sk. Id. at 213-14 ("The `willful' requirement, therefore, breaks down and r eceives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a rea sonable person in his position.").

The Restatement (Second) on Torts S 500 reiterates this standard:

The actor's conduct is in reckless disregard of the safety of

another if he does an act or intentionally fails to do an act which it is

his duty to the other to do, knowing or having r eason to know of facts

which would lead a reasonable man to realize , not only that his conduct creates an unreasonable risk of phys ical harm to another, but also that such risk is substantially gre ater than that which is necessary to make his conduct negligent.

The Restatement underscores that the test of willfu l indifference does not require that the state actor "recognize [his conduc t] as being extremely dangerous . . . [but that] he knows or has reason t o know of circumstances which would bring home to the realiza tion of the ordinary, reasonable man the highly dangerous chara cter of his conduct." Id., comment c. The element of willfulnes s, however, is not entirely disregarded, and thus "[c]onduct cannot be in reckless disregard of the safety of others unless the act or omission is itself intended." Id.,

comment b.16fire company, claiming their failure to properly sc reen

volunteer firefighters resulted in the damage to hi s property. Affirming the district court's grant of s ummary judgment, we rejected plaintiff's claim that "the d anger of volunteer firefighters committing arson is so grave and so obvious that the defendants failure [to screen volu nteers] evinced willful disregard for the rights of individ uals with whom the firefighters came in contact." Mark, 51 F. 3d at 1140. A similar analysis can be applied to the alle gations

here. As contrasted with the risk that an intoxicat ed woman left alone on the road during inclement weath er might be injured, the risk that unlocking a school entrance would invite the actions of a deranged third person is no

more a foreseeable risk than the risk that a firefi ghter will have a proclivity for arson. Consequently, defendan ts here cannot have acted with the requisite culpability to be liable under the state-created danger theory.

Also instructive is the decision of the United Stat es Court of Appeals for the Fifth Circuit in Johnson v. Dall as Indep. Sch. Dist., 38 F.3d 198 (5th Cir. 1994), cert. deni ed, 514 U.S. 1017 (1995). In that case, a student at a Dall as high school was killed by a stray bullet fired by a non- student during an argument in a school hallway. The ruckus was instigated by the non-student, who was able to ente r the school carrying a concealed weapon because the scho ol's

metal detectors were not in use. The decedent's fat her filed suit under S 1983, claiming, inter alia, that the s chool district was responsible for his son's death under the statecreated danger theory. The district court granted defendants' motion to dismiss, and the court of app eals affirmed. According to the court,

[a]ctual knowledge of a serious risk of phys ical danger to the plaintiff has been a common feature o f the state- created danger cases. From the pleadings in this case, no legitimate inference can be drawn that th e school officials might have been actually aware of a high risk

that an armed non student invader would ente r the campus and fire a pistol randomly during sch ool

hours.

38 F.3d at 201-202. The court of appeals found that "the most that may be said of defendants' ultimately ine ffective

17attempts to secure the environment is that they wer e

negligent, but not that they were deliberately indi fferent."

Id. at 202.

The same is true in the case before us. Stovall's a ttack on Diane Morse was not a foreseeable risk, and there i s no allegation in the complaint that defendants knew of the threat she posed. Defendants, by allowing construct ion workers to keep the rear entrance to the school unl ocked, did not willfully or deliberately disregard a fores eeable danger. Assuming their actions rose to the level of negligence, merely negligent acts cannot support a claim under the state-created danger theory of S 1983. Kn eipp, 95 F.3d at 1208; Johnson, 38 F.3d at 202. Much like th e decedent in Johnson, Morse was "the tragic victim o f

random criminal conduct rather than of school offic ials' deliberate, callous decisions," and plaintiff's com plaint cannot be read to allege otherwise. Consequently, p laintiff has not met his pleading burden under the second pr ong of the Kneipp test.

C. Relationship Between State and Plaintiff - Fores eeable

Plaintiff.

The third element of the Kneipp test asks whether " there existed some relationship between the state and the plaintiff." In Mark, when we initially identified t his as an element of the state-created danger theory, we expl ained that the cases which had found liability were based on facts where the state acted in such a way as to leave "a discrete plaintiff vulnerable to a foreseeable injury." 51 F .3d at 1153. In Kneipp we found there was "a relationship between the state and [Ms. Kneipp] . . . during whi ch the state place[d] the victim in danger of a foreseeabl e injury." We then distinguished this "relationship" element o f the state-created danger theory from that required unde r the "special relationship" theory of DeShaney, noting t hat "the relationship requirement under the state-created da nger theory contemplates some contact such that the plai ntiff

was a foreseeable victim of the defendant's acts in a tort

sense." 95 F.3d at 1209 n.22.

The district court here interpreted the "foreseeabl e plaintiff" element11 ofKneipp and Mark to require t hat "a plaintiff must allege facts indicating that there w as a

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11. Although the district court referred to this el ement as the "discrete plaintiff " requirement, we use the term "foreseeab le plaintiff" to

describe

this element of the Mark test.18particular danger to the victim of the resulting ha rm."

Morse, 1996 WL 677514, at *2. The district court tr aced the progression of the "foreseeable plaintiff" requirem ent from its origins in Martinez v. California, 444 U.S. 277 (1980). Martinez involved a S 1983 action brought by the pa rents of a young girl who was murdered by a parolee five mon ths after his release from prison. Plaintiffs alleged t hat the officials responsible for granting parole were liab le for their daughter's death. In rejecting plaintiffs' claims, the Supreme Court stated that "the parole board was not aware that appellant's decedent, as distinguished from th e public at large, faced any special danger." 444 U.S. at 28 5. The district court read this language to require that t he state actor be aware that it is creating a risk of harm t o a particular plaintiff.

Our decision in Commonwealth Bank & Trust Co. v. Russell, 825 F.2d 12 (3d Cir. 1987) also addressed the issue of who qualifies as a "foreseeable plaintiff. " In that instance a suit was filed on behalf of a couple mur dered by an escaped inmate, alleging that breaches in the pr ison's security resulted in the prisoner's escape and, ult imately, the couple's death. We held that prison officials w ere not liable on the grounds that, inter alia, they could not have known that decedents faced any particular threat gr eater than that faced by the "public at large." Id. at 16 . Once again, the district court here read this case as re quiring plaintiffs employing the state-created danger theor y to allege they faced a particular threat of harm which set them apart from the general public.

The district court next examined our decision in Ma rk v. Borough of Hatboro. As we have noted, the actor in that case was a volunteer firefighter who set fire to an d destroyed the plaintiff's auto repair business. The plaintiff contended the municipality was liable to him for ar son damage under the state-created danger theory. We de clined to address the viability of the theory at that time , ruling that in any event a constitutional violation could not be

made out under the facts of the case. As we stated:

When the alleged unlawful act is a policy di rected at the public at large - namely a failure to pr otect the public by failing adequately to screen appli cants for

19membership in a volunteer fire company, the rationale

behind the rule disappears - there can be no specific knowledge of the particular plaintiff's cond ition, and there is no relationship between the defenda nt and the plaintiff.

51 F.3d at 1153. Focusing on this language, the dis trict court interpreted the third prong of the Kneipp tes t to require an allegation that the state actor was awar e of a danger to a specific individual. Because the compla int did not allege this, the district court held that plain tiff failed to state a claim under the state-created danger theory .12

We analyze the foreseeable plaintiff prong somewhat differently than the district court. It seems evide nt that the Supreme Court's "public at large" language in Marti nez, as well as our statements in Commonwealth and Marks, exclude from the reach of the state-created danger theory those instances where the state actor creates only a threat

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12. There appears to be some question whether Mark and Kneipp require the state actor have "specific knowledge" of the pl aintiff, or merely that the plaintiff was a "foreseeable" victim. But any t ension, we believe, can be explained by a review of the facts of each case. Discussing whether the creation of a danger to the "public at large" c ould lead to liability under the state-created danger theory, the Mark cou rt noted that "when the alleged unlawful act is a policy directed at th e public at large . . . there can be no specific knowledge of the particula r plaintiff's

condition"

and thus the third element of the Mark test is not met. 51 F.3d at 1153. The Kneipp court, on the other hand, stated that th e relationship element of the state-created danger theory "contemp lates some contact such that the plaintiff was a foreseeable victim of a defendant's acts in a tort sense." 95 F.3d at 1209 n.22. The distinguis hing characteristic here is the allegedly unlawful act. Mark involved a claim in which the alleged "act" was a policy directed at the public a t large, whereas the acts of the police officer in Kneipp were directed at a particular individual. Where the state actor has allegedly cre ated a danger towards the public generally, rather than an individual or group of individuals, holding a state actor liable for the injuries of fo reseeable plaintiffs

would expand the scope of the state-created danger theory beyond its useful and intended limits. Where, as here, the allegedly unlawful acts of the state actor affect only a limited group of potentia l plaintiffs, the potentially broad reach of the state-created danger theory is constrained by examining whether the plaintiff or plaintiffs we re "foreseeable"

victims.

20to the general population. This is in keeping with the

Court's decision in DeShaney, and the general rule that the state is not obligated to protect its citizens from the random, violent acts of private persons. But it doe s not appear this limitation necessarily restricts the sc ope of S 1983 to those instances where a specific individu al is placed in danger. Another view of these cases would allow a plaintiff, in certain situations, to bring a stat e-created danger claim if the plaintiff was a member of a dis crete class of persons subjected to the potential harm br ought about by the state's actions. Stated differently, d epending on the facts of a particular case, a "discrete plai ntiff" may mean a specific person or a specific class of perso ns. The primary focus when making this determination is foreseeability.

Some of the cases that have applied the state-creat ed danger theory have held state actors liable for cre ating a risk to a definable class of persons. The decision of the United States Court of Appeals for the Seventh Circ uit in Reed v. Gardner, 986 F.2d 1122 (7th Cir. 1993), is illustrative. In that case, police officers arreste d the driver of a vehicle, Cathy Irby, and left behind her intox icated passenger, Larry Rice, with the keys to the car. A few hours later Rice, while driving Irby's car, collided head on with plaintiff 's vehicle, killing plaintiff 's wife and pre-natal son, and injuring the plaintiff, his two daughters and h is inlaws. The court of appeals reversed the lower court 's dismissal of plaintiff 's state-created danger clai m, noting that "it was the police action in removing Irby, co mbined with their knowledge of Rice's intoxication, which creates their liability for the subsequent accident."13 Cle arly the act of placing a drunk driver at the wheel of the car d id not create a danger to the Reed family specifically. Th e court of appeals found that the act "rendered the Reeds and the other motorists on Route 130 vulnerable to a danger ous driver." Id. at 1127 ("When the police create a spe cific

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13. The Reed court assumed, based on its reading of the complaint, that Irby was sober at the time of the arrest. It noted, however, that if she had in fact been intoxicated, the state could not b e liable "for exchanging

one drunk driver for another" because even "without state intervention, the same danger would exist." 986 F.2d at 1125.

21danger, they need not know who in particular will b e hurt.

Some dangers are so evident, while their victims ar e so random, that state actors can be held accountable b y any injured party.").

It is evident that the case law in this area is not uniform on the necessity to allege a specific plaintiff as opposed to a specific class of plaintiffs. What is clear is th at a member of the general public may not qualify. Of course, D eShaney involved a discrete, individual plaintiff, and as t he source of the state-created danger theory, can be read to res trict who may sue under this theory. But in other situations, requiring the plaintiff to be part of an identifiab le and discrete class of persons subject to the harm the s tate allegedly has created also fits within the purposes of the state-created danger theory.

For this reason, it would not appear that the state created danger theory of liability under S 1983 alw ays requires knowledge that a specific individual has b een placed in harm's way. Although it is appropriate to draw lines here, there would appear to be no principled distinction between a discrete plaintiff and a disc rete class of plaintiffs. The ultimate test is one of foreseea bility.

The issue here is whether Diane Morse, and all thos e present in Lower Merion High School, were a suffici ently discrete group of persons who could have been fores eeable victims of an armed and dangerous intruder. This is by no means an easy question, for the reasons we have expressed. But we need not decide this issue here b ecause we hold that plaintiff cannot satisfy the other thr ee prongs of the Kniepp test.

D. Creating the Opportunity for Harm

The final element of the Kneipp test is whether the state actor used its authority to create an opportunity w hich otherwise would not have existed for the specific h arm to occur. The district court read this requirement to contemplate that a state actor must affirmatively a ct to create the risk which results in harm to the plaint iff. Under the allegations presented here, the district court concluded that the only affirmative act attributable to the d efendants was the assertion they unlocked the door to facilit ate the

22work of the various contractors at the high school. The

district court declined to address whether the act of unlocking the door rose "to the level required to i mpose liability under the state-created danger theory," M orse, 1996 WL 677514, at *6 (quoting Kneipp, 95 F.3d at 1 207), relying instead on plaintiff's failure to satisfy t he "foreseeable plaintiff " requirement under Kneipp.

The case law addressing the question whether an affirmative act is required under the state-created danger theory, and if so what constitutes an affirmative a ct for purposes of liability, is less than clear. Conduct that has

been held to be an affirmative act under one set of facts has not met that standard in a similar setting. For exa mple, we held in Kneipp that the police officer's act of "in terven[ing] to cut off Samantha's private source of protection by giving Joseph permission to go home alone" constituted an affirmative act for purposes of S 1983 liability.14 95 F.3d at 1210; see also Wood v. Ostrander, 879 F.2d 583 (9th Cir. 1989), cert. denied, 498 U.S. 938 (1990) (trooper l iable for arresting driver of vehicle and leaving female pass enger alone in a high crime area); White v. Rochford, 592 F.2d 381 (7th Cir. 1979) (arresting driver and leaving m inor passengers behind in vehicle on side of highway gav e rise to constitutional claim).

By comparison, the opinion in Gregory v. City of Ro gers, 974 F.2d 1006 (8th Cir. 1992), draws a different co nclusion from a similar act. In that instance, the police re moved the designated driver of a vehicle because of an outsta nding arrest warrant, and left behind two intoxicated per sons who subsequently drove off and were involved in an acci dent. The United States Court of Appeals for the Eighth C ircuit held the police officer could not be held to have affirmatively placed the intoxicated passengers in danger.

Courts that have addressed this issue have pointed out
that the line between an affirmative act and an omi ssion is difficult to draw. As the United States Court of Ap peals for

the Seventh Circuit said:

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14. Whether the officers's actions in Kneipp consti tuted an affirmative

act or an act of omission is a close question.

23We do not want to pretend that the line betw een action

and inaction, between inflicting and failing to prevent the infliction of harm, is clearer than it i s. If the state puts a man in a position of danger from priv ate persons and then fails to protect him, it wi ll not be heard to say that its role was merely passiv e; it is as

much an active tortfeasor as if it had throw n him into a snake pit.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982) The district court here noted this difficulty when it s aid that "[s]tate-created danger law does not address the qu estion of

when an act crosses the line and becomes an affirma tive act warranting Section 1983 liability." Morse at *6 n.11.

Whether an affirmative act rather than an act of om ission is required under the state-created danger theory a ppears to have been answered by Mark. As the Mark court no ted, one of the common factors in cases addressing the s tatecreated danger is that the state actors "used their authority to create an opportunity that otherwise would not h ave existed for the third party's crime to occur." Mark , 51 F.3d at 1152. Thus, the dispositive factor appears to be whether the state has in some way placed the plaintiff in a dangerous position that was foreseeable, and not wh ether the act was more appropriately characterized as an

affirmative act or an omission.

The following cases are illustrative of this princi ple. In Mitchell v. Duval County Sch. Bd., 107 F.3d 837 (11 th Cir. 1997), the court of appeals rejected a state-create d danger claim under facts analogous to the case before us. The decedent, Richard Mitchell, was a fourteen year-old student who was shot and killed one evening while waiting f or a ride home from a school function. Mitchell had atte mpted to telephone his father from inside the school administration office, but was denied entry. Instea d he used an outside pay phone, and, while waiting for h is father on a driveway adjacent to the school, was sh ot and killed during a robbery attempt. The court of appea ls rejected plaintiff's state-created danger theory on the grounds that he failed to "show that the state affi rmatively placed decedent in a position of danger." Id. at 83 9. According to the court, nothing the school did "req uired

24[decedent] to wait where he did." Indeed, the boy c ould have

waited inside the administration building or immedi ately outside, rather than waiting "a considerable distan ce away on the edge of the school's parking lot." Because t he plaintiffs could prove no set of facts which would demonstrate that either an act or omission on the p art of the state actors placed the decedent closer to the ultimate harm, the court of appeals affirmed the dismissal o f the complaint.

In a case before this Court, two high school studen ts filed a S 1983 claim alleging they were sexually molested by

fellow students in the bathroom and darkroom of the ir graphic arts class room. D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364 (3d Cir. 1992) (en banc), cert. denied, 506 U.S. 1079 (1993). Accordin g to their complaint, the high school's failure to adequ ately supervise the class or investigate the misconduct c reated the dangerous situation that resulted in their inju ries. We affirmed the dismissal of the complaint, holding th at the school was not liable because the plaintiffs did no t demonstrate that the state placed the plaintiffs in danger, increased their risk of harm, or made them more vul nerable to danger. "Plaintiffs did not suffer harm, however , from

that kind of foreseeable risk. . . . Plaintiff's ha rm came about solely through the acts of private persons wi thout the level of intermingling of state conduct with privat e violence that supported liability in Wood, Swader, and Corne lius."

972 F.2d at 1375.

In both cases, there was no direct causal connectio n between the acts or omissions of the state and the harm

which befell the victim. In neither case was it the act or omission of the state actor that directly placed th e victim in harm's way. The same can be said of the case before us. Plaintiff does not allege, nor can he prove, that d efendants placed Diane Morse in "a dangerous environment stri pped of means to defend [herself] and cut off from sourc es of aid." Johnson, 38 F.3d at 202. Nor does plaintiff a llege that defendants placed her in a "unique confrontational encounter" with Stovall. Cornelius, 880 F.2d at 359 . What plaintiff does allege is that defendants, by unlock ing the rear entrance of the school building, "increased th e risk to

25Diane Morse . . . and left Diane Morse vulnerable t o the

actions of her attacker." Complaint P 44. As we hav e already noted, however, Stovall's deadly attack was not a foreseeable and fairly direct result of defendants' behavior. Plaintiff, therefore, can prove no set of facts tha t will demonstrate that defendants placed Diane Morse in h arm's way, and consequently has not satisfied the fourth prong of the Kneipp test.

Conclusion

Based on the foregoing, we hold that plaintiff has not met the test set forth in Kneipp v. Tedder and has fail ed to state a claim under the state-created danger theory of 42 U.S.C.

S 1983.

We will affirm the judgment of the district court.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

26