NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________

No. 16-3735

_____________ FRANCES LAGUARDIA, indivi dually and as Executrix of the Estate of James Vi ncent LaGuardia, deceased, Appellant

v. ROSS TOWNSHIP; HOWA RD BEERS, JR.; RUSSELL A. KRESGE, JR.; TINA DRAKE; *TODD MARTIN; JOHN DUNN (*Dismissed Pursuant to Cler k’s Order entered 2/28/17.)

______________ No. 16-3736

_____________ PATRICIA A. BAUER; RICHARD E. BAUER, Appellants

v. ROSS TOWNSHIP; HOWA RD BEERS, JR., individually and in his official capacity as Ross Township Supervisor; RUSSELL A. KRESGE, JR., individu ally and in his official capacity as Ross To wnship Supervisor; TINA DRAKE, individually and in her official capacity as Ross Township Supervisor; *TODD MARTIN, in hi s individual capacity and

as Sheriff of Monroe County; JOHN DUNN, in his official capacity as Ross To wnship 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; HOWA RD A. BEERS, JR., individually and in his official capacity as Ross Township Supervisor; RUSSELL A. KRESGE, JR., individu ally and in his official capacity as Ross To wnship 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 Distri ct of Pennsylvania (District Court Nos. 3-15-cv-01475, 3-15-cv-01523, 3-15-cv-01479) District Judge: The Honorab le Malachy E. Mannion

______________ Submitted Pursuant to Thir d 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 Richar d Bauer, and Linda Goss-Kozic appeal the District Court’s dism issal of their Secti on 1983 claims against Defendants Ross Township, the Ross Township Supervisors, Solicitor Dunn, and Sherriff Martin for damages sustained when township resident Rockne Ne well opened fire at a township meeting, killing or in juring the Plaintiffs or thei r decedents. Even accepting all Plaintiffs’ allegations as true, we conclude that Plaintiffs have not stated a plausible claim for relief. Accordingly, we affirm the Distri ct Court’s orders dismissing the actions and denying leave to ame nd the complaints.
I 1
Plaintiffs’ claims are based on the th eory that Newell’s sh ooting was in response to Defendants’ twenty-plus- year “multi-faceted campaign” against Newell, motivated primarily by the Supervisors’ desi re 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 wh o 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 judgme nt 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 instan ces where Newell was threatening or violent to Defendants and other township officials, part icularly 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 w ithout a permit, (2) building a residential structure on the property with out a permit, (3) building a cu lvert under his driveway to direct storm water without a permit. 4 Specifically, Plaintiffs allege in their comp laint 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 no tified Solicitor Dunn “well in advance” of the shooting that Newell had displayed “dis turbing” and “alarm[ing]” behavior; (3) At some point, Newell spoke to Supervisor Kresge at a dine r and said, “You keep this up, and we’re going to meet somewhere, me and you. Wh en we’re done, it will only be me;” (4) Sometime in the past, Newell thr eatened 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 “threate ned physical violence” to Solicitor Dunn and Supervisor Kresge at some point in the pa st. J.A. 91–92, 94, 3 10–12, 487–89. Rockne Newell’s father also told de puties 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 4502 448 (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 II 6 “Under Section 1983, a plaintiff must pl ead a deprivation of a constitutional right and that the constitutional deprivation was ca used by a person acting under the color of state law.” 7 Here, the Plaintiffs claim that Defenda nts’ actions violated their Fourteenth Amendment substantive due process rights. Th e Due Process Clause of the Fourteenth Amendment provides that “[n]o State shall . . . deprive any pe rson 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 pr otect 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 stat e-created danger theory requires the plaintiff to show the following: (1) the harm ultimately caused was fore seeable and fairly direct; (2) the state actor acted in willful disregard for the safety of the pl aintiff; (3) there existed some relationship between the state and the plaintiff; [and] (4) the state actors used their authority to create an op portunity 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 review ing an order granting a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), ou r review of the district court is plenary. Mariotti v. Mario tti Bldg. Prod., Inc ., 714 F.3d 761, 765 (3d Cir. 2013). “To survive a motion to dismiss, a co mplaint must contain sufficient fa ctual 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). Fi nally, leave to amend pleadings should be freely granted unless the curative amendment wo uld 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 proce ss claims fail the fi rst 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] le vel of actual knowledge or an awareness of risk that is sufficiently conc rete to put the actors on notice of the harm.” 12 Here, even if Defendants were aware th at 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 threat ening behavior displa yed 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 incide nt 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, 12 08 (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 Roc kne 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 th at the harm was not a “fairly direct” result of Defendants’ conduct. 17 We have held that “a distinc tion exists between harm that occurs to an identifiable or discrete indi vidual under the circumstances and harm that occurs to a random individu al 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 th e 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 plau sibly plead state-created danger claims.
III In denying Plaintiffs’ clai ms and affirming the Distri ct 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 ex traordinary 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 (inter nal 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 municipa l 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’ moti ons to amend the comp laints as futile.