NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_____________ 

No. 16-3735 

_____________ 

FRANCES LAGUARDIA, individually and as Executrix 

of the Estate of James Vincent LaGuardia, deceased, 

 Appellant 

v. 

ROSS TOWNSHIP; HOWARD BEERS, JR.; 

RUSSELL A. KRESGE, JR.; TINA DRAKE; 

*TODD MARTIN; JOHN DUNN 

 

(*Dismissed Pursuant to Clerk’s Order entered 2/28/17.) 

______________ 

No. 16-3736 

_____________ 

PATRICIA A. BAUER; RICHARD E. BAUER, 

 Appellants 

v. 

ROSS TOWNSHIP; HOWARD BEERS, JR., individually 

and in his official capacity as Ross Township Supervisor; 

RUSSELL A. KRESGE, JR., individually and in his official 

capacity as Ross Township Supervisor; TINA DRAKE, 

individually and in her official capacity as Ross Township 

Supervisor; *TODD MARTIN, in his individual capacity and 

as Sheriff of Monroe County; JOHN DUNN, in his official 

capacity as Ross Township Solicitor 

 (*Dismissed Pursuant to Clerk’s Order entered 2/28/17.) 
2 

___________ 

No. 16-3737 

_____________ 

LINDA A. GOSS-KOZIC, individually and as 

Administratrix of the Estate of Gerard J. Kozic, deceased, 

 Appellant 

v. 

ROSS TOWNSHIP; HOWARD A. BEERS, JR., individually 

and in his official capacity as Ross Township Supervisor; 

RUSSELL A. KRESGE, JR., individually and in his official 

capacity as Ross Township Supervisor; TINA DRAKE, 

individually and in her official capacity as Ross Township 

Supervisor; *TODD MARTIN, in his individual capacity as 

Sherrif of Monroe Capacity; JOHN DUNN, individually and 

in his official capacity as Ross Township Solicitor 

 (*Dismissed Pursuant to Clerk’s Order entered 2/28/17.) 

______________ 

On Appeal from the United States District Court 

for the Middle District of Pennsylvania 

(District Court Nos. 3-15-cv-01475, 3-15-cv-01523, 3-15-cv-01479) 

District Judge: The Honorable Malachy E. Mannion 

______________ 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 

April 27, 2017 

______________ 

Before: McKEE, VANASKIE, and RENDELL, Circuit Judges. 

(Filed: August 3, 2017) 
3 

_______________________ 

OPINION*

_______________________ 

McKEE, Circuit Judge.

 Plaintiff-Appellants Frances LaGuardia, Patricia and Richard Bauer, and Linda 

Goss-Kozic appeal the District Court’s dismissal of their Section 1983 claims against 

Defendants Ross Township, the Ross Township Supervisors, Solicitor Dunn, and Sherriff 

Martin for damages sustained when township resident Rockne Newell opened fire at a 

township meeting, killing or injuring the Plaintiffs or their decedents. Even accepting all 

Plaintiffs’ allegations as true, we conclude that Plaintiffs have not stated a plausible claim 

for relief. Accordingly, we affirm the District Court’s orders dismissing the actions and 

denying leave to amend the complaints. 

I

1

 Plaintiffs’ claims are based on the theory that Newell’s shooting was in response 

to Defendants’ twenty-plus-year “multi-faceted campaign” against Newell, motivated 

primarily by the Supervisors’ desire to acquire Newell’s property.2

 Plaintiffs allege that 

the Defendants disproportionately enforced zoning, environmental, and nuisance 

                                                            

*

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

constitute binding precedent. 

1

 Because we write primarily for the parties who are familiar with this case, we set forth 

only those facts necessary to our conclusion. 

2 See Appellant’s Br. 8; J.A. 14, 25. 
4 

ordinances against Newell to obtain a judgment against him and force him off his land.3

Plaintiffs also claim that Defendants knew of Newell’s dangerous propensities and failed 

to adequately protect meeting attendees despite the known threat. In their complaints and 

motions to amend, Plaintiffs cite to instances where Newell was threatening or violent to 

Defendants and other township officials, particularly when he felt the ownership of his 

property was being threatened.4

 

 The District Court dismissed the actions for failure to state a claim and denied 

Plaintiffs’ motions to amend their complaints as futile.5

 Plaintiffs appeal. 

                                                            

3

 The Township assessed fees against Newell for multiple ordinance violations including 

(1) storing fecal matter on his property without a permit, (2) building a residential 

structure on the property without a permit, (3) building a culvert under his driveway to 

direct storm water without a permit. 

4

 Specifically, Plaintiffs allege in their complaint and motion to amend that: (1) At some 

point in the past, Newell told Solicitor Dunn after a court hearing that Newell “would 

have shot [him] that night,” had Newell been deprived of his property by the court; (2) 

Attorney Michael Kaspszyk notified Solicitor Dunn “well in advance” of the shooting 

that Newell had displayed “disturbing” and “alarm[ing]” behavior; (3) At some point, 

Newell spoke to Supervisor Kresge at a diner and said, “You keep this up, and we’re 

going to meet somewhere, me and you. When we’re done, it will only be me;” (4) 

Sometime in the past, Newell threatened Sheriff Martin that if Martin were to come to 

Newell’s property and take it, Martin should shoot Newell because Newell did not want 

to have to shoot Martin; (5) Newell “threatened physical violence” to Solicitor Dunn and 

Supervisor Kresge at some point in the past. J.A. 91–92, 94, 310–12, 487–89. Rockne 

Newell’s father also told deputies serving the sale documents that Newell was upset 

about the sale and warned them that “people are going to die over this.” J.A. 93–94, 312, 

489. 

5 LaGuardia v. Ross Twp., No. CV 3:15-1475, 2016 WL 4502443 (M.D. Pa. Aug. 29, 

2016); Bauer v. Twp., No. CV 3:15-1523, 2016 WL 4502448 (M.D. Pa. Aug. 29, 2016); 

Goss-Kozic v. Ross Twp., No. CV 3:15-1479, 2016 WL 4502445 (M.D. Pa. Aug. 29, 

2016). 
5 

II6

 “Under Section 1983, a plaintiff must plead a deprivation of a constitutional right 

and that the constitutional deprivation was caused by a person acting under the color of 

state law.”7

 Here, the Plaintiffs claim that Defendants’ actions violated their Fourteenth 

Amendment substantive due process rights. 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.”8

 However, “nothing in the language of the Due 

Process Clause itself requires the State to protect the life, liberty, and property of its 

citizens against invasion by private actors.”9

 Even given this general rule, a plaintiff may 

nevertheless recover if the harm suffered was a result of a “state-created danger.”10 We 

have articulated that recovery under the state-created danger theory requires the plaintiff 

to show the following: 

(1) the harm ultimately caused was foreseeable 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; [and] (4) the 

state actors used their authority to create an opportunity that otherwise 

                                                            

6

 The District Court had jurisdiction under 28 U.S.C. § 1331. This Court has jurisdiction 

pursuant to 28 U.S.C. § 1291. When reviewing an order granting a motion to dismiss 

under Federal Rule of Civil Procedure 12(b)(6), our review of the district court is plenary. 

Mariotti v. Mariotti Bldg. Prod., Inc., 714 F.3d 761, 765 (3d Cir. 2013). “To survive a 

motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009) (internal quotation marks omitted). Finally, leave to amend pleadings should be 

freely granted unless the curative amendment would be “inequitable, futile, or untimely.” 

Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004). 

7 Phillips v. Cty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008). 

8

 U.S. Const. amend. XIV, § 1. 

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

10 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997). 
6 

would not have existed for the third party’s crime to occur.11

 Here, Plaintiffs’ substantive due process claims fail the first requirement: The 

harm here was not a “foreseeable” or “fairly direct” consequence of Defendants’ actions. 

To adequately plead foreseeability, “we require a plaintiff to allege an awareness on the 

part of the state [or municipal] actors that rises to [the] level of actual knowledge or an 

awareness of risk that is sufficiently concrete to put the actors on notice of the harm.”12 

 Here, even if Defendants were aware that Newell was erratic and threatening at 

times over the course of twenty-plus years,13 we cannot conclude that Newell’s act of 

murdering township residents at a public mass shooting was a direct or foreseeable 

consequence of enforcing zoning ordinances and satisfying a judgment. Plaintiffs do not 

allege that the Supervisors were aware of any specific threats made by Newell near the 

time of the sale. Generally erratic or threatening behavior displayed over twenty years 

does not translate to “sufficiently concrete” notice that Newell would choose to commit a 

public mass shooting on that day.14 The only warning alleged to have occurred within 

fairly close proximity to the sale or meeting was an incident involving Newell’s father 

(not Rocke Newell himself) telling the sheriff’s deputies (not any of the Defendants) that 

Newell was upset over the sale and that “people are going to die over this.”15 This threat 

is insufficient as a matter of law to conclude that Defendants had “actual knowledge or an 

                                                            

11 Id. at 908 (quoting Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996)). 

12 Phillips, 515 F.3d at 238. 

13 See J.A. 91–92, 94, 310–12, 487–89. 

14 Phillips, 515 F.3d at 238. 

15 J.A. 93–94, 312, 489. 
7 

awareness of” the “concrete” risk that Rockne Newell would arrive at the township 

meeting on that day with an arsenal in tow and begin to fire at attendees.16

 We also agree with the District Court that the harm was not a “fairly direct” result 

of Defendants’ conduct.17 We have held that “a distinction exists between harm that 

occurs to an identifiable or discrete individual under the circumstances and harm that 

occurs to a random individual with no connection to the harm-causing party” who 

“happened to be in the path of danger.”18 That is, “the harm visited on the plaintiffs [must 

be] more foreseeable than the random attack.”19 Here, Plaintiffs, as attendees of the 

township meeting open to the public, are more akin to “random individual[s]” who 

“happened to be in the path of danger.”20 Plaintiffs’ harm was a direct result of only the 

actions of Rockne Newell, not the Defendants. Accordingly, Plaintiffs have failed to 

plead as a matter of law that the harm suffered was a foreseeable consequence of 

Defendants’ actions and therefore cannot plausibly plead state-created danger claims. 

III 

 In denying Plaintiffs’ claims and affirming the District Court, we by no means 

wish to diminish the devastation wreaked by this unspeakably horrifying, senseless, and 

tragic act of violence. Furthermore, we are not insensitive to the extraordinary disruption 

that Newell’s actions caused everyone in the community. However, binding precedent of 

                                                            

16 See Phillips, 515 F.3d at 238.

17 LaGuardia, 2016 WL 4502443, at *7; Bauer, 2016 WL 4502448, at *8; Goss-Kozic, 

2016 WL 4502445, at *8. 

18 Phillips, 515 F.3d at 239 (internal quotation marks omitted). 

19 Id. (quoting Morse, 132 F.3d at 909). 

20 Id. at 240 (internal quotation marks omitted). 
8 

our own court and the Supreme Court of the United States limits the extent to which 

liability can be imposed on state or municipal actors based on the criminal actions of 

third parties. For the reasons set forth above, we affirm the District Court’s dismissal of 

the actions and denial of Plaintiffs’ motions to amend the complaints as futile.