2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-5-2008

Phillips v. Allegheny

Precedential or Non-Precedential: Precedential

Docket No. 06-2869

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 06-2869

___________

JEANNE PHILLIPS, Administratrix of the 

Estate of Mark Phillips, deceased,

 Appellant

v.

COUNTY OF ALLEGHENY; NORTHWEST REGIONAL

COMMUNICATIONS; ALLEGHENY COUNTY 9-1-1,

f/k/a NORTHWEST REGIONAL COMMUNICATIONS;

DANIEL NUSSBAUM; DANIELLE TUSH; BRIAN

CRAIG; LEONARD DEUTSCH; RYAN GING; SUSAN

ZURCHER; PHILLIP CESTRA

___________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 05-cv-1502)

District Judge: The Honorable Arthur J. Schwab

___________

ARGUED JUNE 26, 2007
2

BEFORE: FISHER, NYGAARD, 

and ROTH, Circuit Judges.

(Filed February 5, 2008)

___________

Philip A. Ignelzi, Esq.(Argued)

Michael A. Murphy, Esq.

Ogg, Cordes, Murphy & Ignelzi 

245 Fort Pitt Boulevard 

Pittsburgh, PA 15222

Counsel for Appellant

Scott G. Dunlop, Esq.

Stephen J. Poljak, Esq. (Argued) 

Alan E. Johnson, Esq.

Marshall, Dennehey, Warner, Coleman & Goggin 

600 Grant Street, 2900 U.S. Steel Tower 

Pittsburgh, PA 15219 

Counsel for Appellees Northwest Regional

Communications, Nussbaum, Tush, Craig, Deutsch,

Ging, Zurcher, and Cestra

Wendy Kobee, Esq.

Michael H. Wojcik, Esq.

Office of Allegheny County Law Department 

445 Fort Pitt Boulevard 
3

300 Fort Pitt Commons Building 

Pittsburgh, PA 15219 

Counsel for Appellees County of Allegheny and

 Allegheny County 911

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Jeanne Phillips (“Phillips”), individually and in her

capacity as administrator of the estate of her son, decedent Mark

Phillips, appeals the District Court’s dismissal of her claims

against various defendants for violations of 42 U.S.C. § 1983.

The District Court, in deciding a motion under FED.R.CIV.P.

12(b)(6), was required to accept as true all factual allegations in

the complaint and draw all inferences from the facts alleged in

the light most favorable to Phillips. Worldcom, Inc. v. Graphnet,

Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover, in the event

a complaint fails to state a claim, unless amendment would be

futile, the District Court must give a plaintiff the opportunity to

amend her complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d

Cir. 2000). Because the District Court did not follow these

dictates, we will reverse in part and remand.

I.

As is typical with state-created danger cases, the facts

here are inescapably tragic. Beginning in October of 2003,

Michael Michalski, who was employed by the Allegheny
4

County 911 Call Center as a dispatcher, used his position to

surreptitiously gain access to unauthorized information.

Specifically, Michalski ran multiple searches of the 911 Call

Center's computer network and databases in an attempt to locate

the whereabouts of his former girlfriend, Gretchen Ferderbar,

and her then-boyfriend, Mark Phillips. By October 19, 2003,

Daniel Nussbaum, who was Michalski's supervisor, became

aware of Michalski's actions and placed Michalski on a

one-week suspension, but allowed Michalski to remain on the

job for a week. The day before the suspension took effect,

Michalski again used the 911 Call Center's computer network

and databases without authorization to access personal

information regarding Mark Phillips. Michalski specifically

accessed Mark Phillips' motor vehicle and license plate

registrations in an effort to track and locate Mark Phillips'

whereabouts.

During the evening hours of October 28, 2003, and the

early morning hours of October 29, 2003, while on suspension,

Michalski made numerous telephone calls to the 911 Call Center

and spoke with Danielle Tush and Brian Craig. During those

telephone calls, Michalski requested information that would

assist him in locating Mark Phillips. Tush and Craig assisted

Michalski, aware that they were accessing unauthorized

personal information that had no relationship to their jobs as

dispatchers for the 911 Call Center.

Gretchen Ferderbar contacted Nussbaum to inform him

that Michalski had accessed the 911 Call Center's computer

system in his position as a dispatcher to obtain information

which enabled him to track and locate her and Mark Phillips at
5

Mark Phillips' residence. After confirming that Michalski had

improperly accessed information regarding Mark Phillips,

Nussbaum met with Michalski at the 911 Call Center and

confronted him about his repeated and unauthorized use of the

911 Call Center's computer system. Michalski admitted to

Nussbaum that he had used the 911 Call Center's computer

system to gain access to unauthorized information regarding

Mark Phillips, and Nussbaum terminated Michalski's

employment with the 911 Call Center.

Recognizing Michalski's “volatile appearance” and

apparently concerned that Michalski might commit a violent act,

Nussbaum placed two telephone calls. Nussbaum left either a

voicemail message on Ferderbar's cellular telephone warning her

to be careful and to be on guard for Michalski or Nussbaum

warned her in person — the record is unclear. What is clear,

however, is that Nussbaum also contacted the McCandless

Township Police Department to notify them of Michalski's

volatile state. Nussbaum made no effort, however, to contact the

police departments of Shaler Township or the Borough of

Carnegie where Federbar and Phillips, respectively, lived.

Despite recognizing that Michalski had used the 911 Call

Center's computer system to track Mark Phillips, Nussbaum

made no effort to detain Michalski, to deter him from reaching

Mark Phillips or to warn Mark Phillips of Michalski’s

potentially violent behavior.

Later that same day, Michalski contacted dispatchers at

the 911 Call Center, including Tush, Craig, Leonard Deutsch,

Ryan Ging, Susan Zurcher and Phillip Cestra, to explain the

circumstances of his termination. Michalski indicated that he

“had nothing left to live for” and that Ferderbar and Mark
1. Rather than filing its own motion to dismiss, Allegheny

County filed a motion for stay of time to file a responsive

pleading pending resolution of the motion to dismiss. Phillips

did not oppose the motion to stay and the District Court granted

it. After consideration of the papers, the District Court granted

the motion to dismiss the complaint and in its final order lifted

the stay, granted the motion to dismiss in its entirety, and

entered judgment for all defendants. The District Court declined

to exercise supplemental jurisdiction over Plaintiff’s remaining

state law claims and transferred the case to the Court of

Common Pleas of Allegheny County. Appellee Allegheny

County 911 did not join in the motion to stay, and the District

(continued...)

6

Phillips were going to “pay for putting him in his present

situation.” Despite this contact by Michalski, none of the

dispatchers contacted either Ferderbar or Mark Phillips or the

police departments of the Township of Shaler or the Borough of

Carnegie. Later that afternoon, Michalski shot and killed Mark

Phillips with a handgun. Michalski also shot and killed

Ferderbar and her sister.

Jeanne Phillips, as Administratrix of her son’s estate,

sued numerous defendants, including Allegheny County,

Allegheny County 911, 911 Supervisor Nussbaum and 911

Dispatchers Tush, Craig, Deutsch, Ging, Zurcher and Cestra,

alleging violations of Mark Phillips’ civil rights under 42 U.S.C.

§ 1983 and alleging, through pendant jurisdiction, a wrongful

death action, and a survivorship action. In response, Appellees

moved to dismiss Phillips’ claims pursuant to Federal Rule

12(b)(6) and the district judge granted the motion.1
1.(...continued)

Court apparently never required it to file a responsive pleading,

most likely because the District Court considered Allegheny

County 911 to be part of or coextensive with either Northwest

(which filed a motion to dismiss) or Allegheny County (which

filed a motion to stay). Although the District Court closed the

case by entering judgment for all defendants on all counts, the

Court did not have before it a motion to dismiss from the County

or Allegheny County 911. The parties on appeal do not mention

this issue, presumably because it makes no difference in light of

the fact that the Supreme Court’s decision in Monell v. Dep't of

Social Services, 436 U.S. 658 (1978) bars § 1983 suits against

municipalities based on respondeat superior and Phillips failed

to allege facts supporting an official pattern or practice claim

giving rise to constitutional injury.

2. See In re Paoli R.R. Yard PCB Litigation, 221 F.3d

449, 461 (3d Cir. 2000) (“de novo means [that] . . . the court’s

(continued...)

7

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. The

standard of review for a dismissal under FED.R.CIV.P. 12(b)(6)

is de novo. Omnipoint Communications Enters., L.P. v.

Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000). Because

this standard requires us to review the District Court’s order

anew and without any deference, we pause here to re-evaluate

our de novo standard of review in light of the Supreme Court’s

recent decision in Bell Atlantic Corp. v. Twombly, — U.S. —,

127 S. Ct. 1955 (2007).2

 
2.(...continued)

inquiry is not limited to or constricted by the record . . . nor is

any deference due the . . . conclusions [under review]”).

8

After oral argument, we asked the parties to brief the

Twombly decision’s impact on pleading standards generally and

on this appeal specifically. Few issues in civil procedure

jurisprudence are more significant than pleading standards,

which are the key that opens access to courts. In Twombly, the

Supreme Court held that the plaintiffs failed to state a claim

under § 1 of the Sherman Antitrust Act. The plaintiffs had

alleged that defendants had engaged in parallel conduct, but had

pleaded no set of facts making it plausible that such conduct was

the product of a conspiracy. In reaching this decision, the

Supreme Court rejected language that long had formed part of

the Rule 12(b)(6) standard, namely the statement in Conley v.

Gibson, 355 U.S. 41 (1957), that a complaint may not be

dismissed “unless it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim which would entitle

him to relief.” Id. at 45-46. 

What makes Twombly’s impact on the Rule 12(b)(6)

standard initially so confusing is that it introduces a new

“plausibility” paradigm for evaluating the sufficiency of

complaints. At the same time, however, the Supreme Court

never said that it intended a drastic change in the law, and

indeed strove to convey the opposite impression; even in

rejecting Conley’s “no set of facts” language, the Court does not

appear to have believed that it was really changing the Rule 8 or

Rule 12(b)(6) framework. Therefore, our review of how

Twombly altered review of Rule 12(b)(6) cases must begin by
9

recognizing the § 1 antitrust context in which it was decided.

See e.g., Twombly, 127 S. Ct. at 1963 (“We granted certiorari to

address the proper standard for pleading an antitrust conspiracy

through allegations of parallel conduct.”). Outside the § 1

antitrust context, however, the critical question is whether and

to what extent the Supreme Court altered the general Rule

12(b)(6) standard.

Before Twombly, that standard had been well-established

for decades. Our typical statement of the standard has instructed

that:

The applicable inquiry under Rule 12(b)(6) is

well-settled. Courts are required to accept all

well-pleaded allegations in the complaint as true

and to draw all reasonable inferences in favor of

the non-moving party. The inquiry is not whether

plaintiffs will ultimately prevail in a trial on the

merits, but whether they should be afforded an

opportunity to offer evidence in support of their

claims. Dismissal under Rule 12(b)(6) is not

appropriate unless it appears beyond doubt that

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. 

In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215-

16 (3d Cir. 2002) (internal citations omitted). Another common

formulation of the standard, which does not include the “no set

of facts” language, reads: 
10

In evaluating the propriety of the dismissal, we

accept all factual allegations as true, construe the

complaint in the light most favorable to the

plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff

may be entitled to relief.

Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.

2002). 

In determining how Twombly has changed this standard,

we start with what Twombly expressly leaves intact. The

Supreme Court reaffirmed that FED.R.CIV.P. 8 “‘requires only

a short and plain statement of the claim showing that the pleader

is entitled to relief,’ in order to ‘give the defendant fair notice of

what the . . . claim is and the grounds upon which it rests,’” and

that this standard does not require “detailed factual allegations.”

Twombly, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47).

The Supreme Court also reaffirmed that, on a Rule 12(b)(6)

motion, the facts alleged must be taken as true and a complaint

may not be dismissed merely because it appears unlikely that the

plaintiff can prove those facts or will ultimately prevail on the

merits. See id. at 1964-65, 1969 n.8. The Supreme Court did

not address the point about drawing reasonable inferences in

favor of the plaintiff, but we do not read its decision to

undermine that principle.

We find two new concepts in Twombly. First, in its

general discussion of Rules 8 and 12(b)(6), the Supreme Court

used certain language that it does not appear to have used

before. The Court explained that “[w]hile a complaint attacked

by a Rule 12(b)(6) motion to dismiss does not need detailed
11

factual allegations, a plaintiff’s [Rule 8] obligation to provide

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than

labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do.” Twombly, 127 S. Ct.

at 1964-65 (alteration in original) (internal citations omitted).

The Court explained that Rule 8 “requires a ‘showing,’ rather

than a blanket assertion, of entitlement to relief.” Id. at 1965 n.3.

Later, the Court referred to “the threshold requirement of Rule

8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w]

that the pleader is entitled to relief.’” Id. at 1966. The Court

further explained that a complaint’s “[f]actual allegations must

be enough to raise a right to relief above the speculative level.”

Id. at 1965 & n.3.

Second, the Supreme Court disavowed certain language

that it had used many times before – the “no set of facts”

language from Conley. See id. at 1968. It is clear that the “no

set of facts” language may no longer be used as part of the Rule

12(b)(6) standard. As the Court instructed, “[t]his phrase is best

forgotten as an incomplete, negative gloss on an accepted

pleading standard: once a claim has been stated adequately, it

may be supported by showing any set of facts consistent with

the allegations in the complaint.” Twombly, 127 S. Ct. at 1969.

We find that these two aspects of the decision are intended to

apply to the Rule 12(b)(6) standard in general. See Iqbal v.

Hasty, 409 F.3d 143, 157 n.7 (2d Cir. 2007) (“[I]t would be

cavalier to believe that the Court’s rejection of the ‘no set of

facts’ language from Conley . . . applies only to section 1

antitrust claims.”). 

A.
12

While the Supreme Court’s emphasis on Rule 8’s

requirement of a “showing” is new, the Court also expressly

reaffirmed that Rule 8 requires only a short and plain statement

of the claim and its grounds. Twombly, 127 S. Ct. at 1964, 1965

n.3 (citing Conley, 355 U.S. at 47). Even the dissent in

Twombly did not believe that the requirement of a Rule 8

“showing,” by itself, had any other meaning. See Twombly, 127

S. Ct. at 1979 n.6 (Stevens, J., dissenting) (“The majority is

correct to say that what the Federal Rules require is a ‘showing’

of entitlement to relief. Whether and to what extent that

‘showing’ requires allegations of fact will depend on the

particulars of the claim.”). However, the Twombly decision

focuses our attention on the “context” of the required short,

plain statement. Context matters in notice pleading. Fair notice

under Rule 8(a)(2) depends on the type of case — some

complaints will require at least some factual allegations to make

out a “showing that the pleader is entitled to relief, in order to

give the defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Twombly, 127 S.Ct. at 1964.

Indeed, taking Twombly and the Court’s contemporaneous

opinion in Erickson v. Pardus, 127 S. Ct. 2197 (2007), 

together, we understand the Court to instruct that a situation may

arise where, at some point, the factual detail in a complaint is so

undeveloped that it does not provide a defendant the type of

notice of claim which is contemplated by Rule 8. See Airborne

Beepers & Video, Inc., v. AT&T Mobility L.L.C., 499 F.3d 663,

667 (7th Cir. 2007). Put another way, in light of Twombly, Rule

8(a)(2) requires a “showing” rather than a blanket assertion of

an entitlement to relief. We caution that without some factual

allegation in the complaint, a claimant cannot satisfy the

requirement that he or she provide not only “fair notice,” but
13

also the “grounds” on which the claim rests. See Twombly, 127

S.Ct. at 1965 n.3. 

B.

The second important concept we take from the Twombly

opinion is the rejection of Conley’s “no set of facts” language.

The Conley language was problematic because, for example, it

could be viewed as requiring judges to speculate about

undisclosed facts. “This famous observation,” the Court held,

“has earned its retirement. The [‘no set of facts'] phrase [in

Conley] is best forgotten as an incomplete, negative gloss on an

accepted pleading standard: Once a claim has been stated

adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.” Twombly , 127

S. Ct at 1969 n.8. After Twombly, it is no longer sufficient to

allege mere elements of a cause of action; instead “a complaint

must allege facts suggestive of [the proscribed] conduct.” Id.

The Supreme Court appears to have rejected a “hyper-literal”

understanding of Conley’s “no set of facts” language. As the

Supreme Court explained, 

[t]his “no set of facts” language can be read in

isolation as saying that any statement revealing

the theory of the claim will suffice unless its

factual impossibility may be shown from the face

of the pleadings. . . . On such a focused and

literal reading of Conley’s no set of facts, a

wholly conclusory statement of claim would

survive a motion to dismiss whenever the

pleading left open the possibility that a plaintiff
3. Recent cases in which we recited the Conley language

but did not apply it in the hyper-literal sense which Twombly

rejects include (in addition to those cited above), Leuthner v.

Blue Cross and Blue Shield of Ne. Pa., 454 F.3d 120, 129-131

(3d Cir. 2006) (compare majority opinion and dissent), Pryor,

288 F.3d at 564-65, and Levy v. Sterling Holding Co., 314 F.3d

106, 119 (3d Cir. 2002).

14

might later establish some set of [undisclosed]

facts to support recovery. 

Twombly, 127 S. Ct. at 1968 (alteration in original). See also

Geoffrey C. Hazard, From Whom No Secrets Are Hid, 76 Tex.

L. Rev. 1665, 1685 (1998) (explaining that “literal compliance”

with Conley “could consist simply of giving the names of the

plaintiff and the defendant, and asking for judgment”) (cited for

related proposition in Twombly, 127 S. Ct. at 1969). We have

already recognized principles that preclude the hyper-literal

reading of Conley’s language rejected in Twombly.

3

In rejecting the Conley language, the Supreme Court was

careful to base its analysis in pre-existing principles. See id. at

1968-69 & n.8. The Court emphasized throughout its opinion

that it was neither demanding a heightened pleading of specifics

nor imposing a probability requirement. See id. at 1964, 1965,

1973 n.14, 1974. Indeed, the Court cited Twombly just days

later as authority for traditional Rule 8 and 12(b)(6) principles.

See Erickson, 127 S. Ct. at 2200. 

Thus, under our reading, the notice pleading standard of

Rule 8(a)(2) remains intact, and courts may generally state and
15

apply the Rule 12(b)(6) standard, attentive to context and an

showing that “the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Twombly, 127 S.Ct. at 1964. It remains an

acceptable statement of the standard, for example, that courts

“accept all factual allegations as true, construe the complaint in

the light most favorable to the plaintiff, and determine whether,

under any reasonable reading of the complaint, the plaintiff may

be entitled to relief.” Pinker, 292 F.3d at 374 n.7. See also

Twombly, 127 S. Ct. at 1969 n.8 (citing as consistent with its

rejection of the “no set of facts” language the statement that “if,

in view of what is alleged, it can reasonably be conceived that

the plaintiffs . . . could, upon a trial, establish a case which

would entitle them to . . . relief, the motion to dismiss should not

have been granted”) (citation omitted). 

C.

The more difficult question raised by Twombly is whether

the Supreme Court imposed a new “plausibility” requirement at

the pleading stage that materially alters the notice pleading

regime. See id. at 1988 (Stevens, J., dissenting) (“Whether the

Court’s actions will benefit only defendants in antitrust trebledamages cases, or whether its test for the sufficiency of a

complaint will inure to the benefit of all civil defendants, is a

question that the future will answer.”). The answer to this

question is difficult to divine. Numerous references to

“plausibility” in Twombly seem to counsel reliance on the

concept as a standard for notice pleading. The Court explained

that a plaintiff must “nudge [his or her] claims across the line

from conceivable to plausible” in order to survive a motion to
16

dismiss. 127 S.Ct. at 1974. Relying on this, the Court of Appeals

for the Tenth Circuit has held that 

the mere metaphysical possibility that some

plaintiff could prove some set of facts in support

of the pleaded claims is insufficient; the

complaint must give the court reason to believe

that this plaintiff has a reasonable likelihood of

mustering factual support for these claims.

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177

(10th Cir. 2007). Yet, the Twombly decision repeatedly

indicated that the Court was not adopting or applying a

“heightened pleading standard.” 127 S.Ct. at 1974 (“[W]e do

not require heightened fact pleading of specifics, but only

enough facts to state a claim to relief that is plausible on its

face.”). We are not alone in finding the opinion confusing. See

e.g. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (“These

conflicting signals create some uncertainty as to the intended

scope of the Court's decision.”).

The issues raised by Twombly are not easily resolved, and

likely will be a source of controversy for years to come.

Therefore, we decline at this point to read Twombly so narrowly

as to limit its holding on plausibility to the antitrust context.

Reading Twombly to impose a “plausibility” requirement outside

the § 1 context, however, leaves us with the question of what it

might mean. “Plausibility” is related to the requirement of a

Rule 8 “showing.” In its general discussion, the Supreme Court

explained that the concept of a “showing” requires only notice
17

of a claim and its grounds, and distinguished such a showing

from “a pleader’s ‘bare averment that he wants relief and is

entitled to it.’” Twombly, 127 S. Ct. at 1965 n.3. While Rule

12(b)(6) does not permit dismissal of a well-pleaded complaint

simply because “it strikes a savvy judge that actual proof of

those facts is improbable,” the “[f]actual allegations must be

enough to raise a right to relief above the speculative level.” Id

at 1965. 

The Supreme Court's Twombly formulation of the

pleading standard can be summed up thus: “stating . . . a claim

requires a complaint with enough factual matter (taken as true)

to suggest” the required element. Id. This “does not impose a

probability requirement at the pleading stage,” but instead

“simply calls for enough facts to raise a reasonable expectation

that discovery will reveal evidence of” the necessary element.

Id. 

D.

As Professor Edward H. Cooper has pointed out, all of

the foregoing discussion can be reduced to this proposition:

Rule 8(a)(2) has it right. See Edward H. Cooper, Notice

Pleading: The Agenda After Twombly, 5 (January 2008)

(unpublished manuscript, on file with the Administrative Office

of the United States Courts, Rules Committee Support Office),

available at www.uscourts.gov/rules/Agenda%20books/st2008-

01.pdf. This rule requires not merely a short and plain

statement, but instead mandates a statement “showing that the

pleader is entitled to relief.” That is to say, there must be some

showing sufficient to justify moving the case beyond the
18

pleadings to the next stage of litigation. The complaint at issue

in this case clearly satisfies this pleading standard, making a

sufficient showing of enough factual matter (taken as true) to

suggest the required elements of Phillips’ claims. 

III.

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.

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Phillips

alleges a deprivation of her son’s right to life, liberty and bodily

integrity under the Fourteenth Amendment to the Constitution.

Individuals have a constitutional liberty interest in personal

bodily integrity that is protected by the Due Process Clause of

the Fourteenth Amendment. D.R. v. Middle Bucks Area

Vocational Technical School, 972 F.2d 1364, 1368 (3d Cir.

1992) (citing Ingraham v. Wright, 430 U.S. 651, 672-74 (1977)).

However, the Due Process Clause does not impose an

affirmative obligation on the state to protect its citizens. See

DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S.

189, 195-96 (1989). The state-created danger theory operates as

an exception to that general rule and requires plaintiffs to meet

a four-part test: (1) the harm ultimately caused to the plaintiff

was foreseeable and fairly direct; (2) the state-actor acted in

willful disregard for the plaintiff’s safety; (3) there was some

relationship between the state and the plaintiff; and (4) the stateactor used his authority to create an opportunity for danger that
4. Neither party addresses whether Nussbaum, Tush and

Craig are indeed state-actors. The complaint alleges that these

defendants were both employees of the Northwest Corporation

and Allegheny County, and accepting this allegation as true, we

will treat them as state-actors for purposes of this appeal.

19

otherwise would not have existed.4

 Bright v. Westmoreland

County, 443 F.3d 276, 281 (3d Cir.2006) (quotations and

footnotes omitted); see also Rivas v. City of Passaic, 365 F.3d

181, 194 (3d Cir. 2004). Here, the District Court dismissed

Phillips’ complaint under a Rule 12(b)(6) motion, based upon

her failure to adequately plead the first, second and fourth

elements of the test — that the harm was foreseeable, that the

state actor’s behavior “shocked the conscience,” and that the

defendant’s conduct rendered Mark Phillips more vulnerable to

danger. See Bright, 443 F.3d at 281; Rivas v. City of Passaic,

365 F.3d 181, 194 (3d Cir. 2004). Because the District Court

erred in its analysis of several elements, we will discuss each in

turn. 

A.

We begin with the fourth element, the requirement of an

affirmative act, because our conclusion obviates the need to

analyze the other three elements with respect to the claim

against Nussbaum. State actors must use their authority to

create an opportunity that otherwise would not have existed for

the third-party’s crime to occur. Kniepp, 95 F.3d at 1208. In

Bright, we stressed that under the fourth element of a statecreated danger claim,
20

[l]iability . . . is predicated upon the states’

affirmative acts which work to the plaintiff’s

detriment in terms of exposure to danger. It is the

misuse of state authority, rather than a failure to

use it, that can violate the Due Process Clause.

443 F.3d at 282 (emphasis added) (quoting D.R. by LR., 972

F.2d at 1374). The line between action and inaction may not

always be clear. However, we have never found a state-created

danger claim to be meritorious without an allegation and

subsequent showing that state authority was affirmatively

exercised in some fashion.

The allegations in the complaint against defendant

Nussbaum do not sufficiently allege that he acted

“affirmatively.” Specifically, Phillips alleges that Nussbaum

misused his authority by notifying the wrong authorities of the

dangers Michalski posed to Mark Phillips. Also, Phillips alleges

that Nussbaum misused his authority by deferring Michalski’s

employment suspension, with full knowledge that Michalski

was using the 911 Call Center’s computers to improperly access

confidential information about Mark Phillips — information

which he used to determine Mark Phillips’ whereabouts, and to

track his movements. This misuse of Nussbaum’s authority,

Phillips alleges, worked to Mark Phillips’ detriment by exposing

him to a continuing danger, and by allowing Michalski to harm

Mark Phillips. Phillips’ difficulty, however, is that these

allegations, at their core, are omissions, not commissions —

inactions rather than actions. To be sure, it has been sufficiently

alleged that Nussbaum’s performance worked to Mark Phillips’
21

detriment in terms of exposure to danger. But, that is only a

portion of our test. 

Our jurisprudence requires that Phillips allege an

affirmative action, rather than inaction or omission. Bright, 443

F.3d at 282 (citing D.R. v. Middle Bucks Area Vocational Tech.

Sch., 972 F.2d 1364, 1374 (3d Cir.1992) (en banc)). Phillips’

complaint does not make such an allegation against Nussbaum

and, hence, no state- created danger claim has been sufficiently

pleaded. 

Nonetheless, the District Judge erred when he dismissed

the complaint without offering Phillips the opportunity to amend

her complaint. It does not matter whether or not a plaintiff seeks

leave to amend. We have instructed that if a complaint is

vulnerable to 12(b)(6) dismissal, a district court must permit a

curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108

(3d Cir.2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d

Cir.2000)). In Shane, we held that when dismissing for a failure

to state a claim:

[W]e suggest that district judges expressly state,

where appropriate, that the plaintiff has leave to

amend within a specified period of time, and that

application for dismissal of the action may be

made if a timely amendment is not forthcoming

within that time. If the plaintiff does not desire to

amend, he may file an appropriate notice with the

district court asserting his intent to stand on the
22

complaint, at which time an order to dismiss the

action would be appropriate.

Id. at 116 (quoting Borelli v. City of Reading, 532 F.2d 950, 951

n. 1 (3d Cir.1976). Because Phillips was not given such an

opportunity, we will remand to allow her to decide whether to

stand on her complaint or attempt an amendment so as to

properly allege an affirmative act by defendant Nussbaum. 

Turning to defendants Tush and Craig, we find that the

complaint adequately alleges they acted affirmatively by

providing Michalski with confidential 911 computer information

about Mark Phillips that permitted Michalski to harm him. This

allegation satisfies this element of our state-created danger

analysis.

However, pleading an affirmative act by a state actor is

not enough: the complaint must also plead a direct causal

relationship between the affirmative act and plaintiff’s harm.

Kaucher, 455 F.3d at 432. The direct causal connection

between the affirmative actions of Tush and Craig (actively

providing Michalski with requested confidential information

about Phillips) and the ultimate harm to Mark Phillips is well

pleaded. The complaint alleges that after Tush and Craig

provided Michalski with confidential information, Michalski

used that information to hunt down and kill Mark Phillips. 

In sum, under this element, Phillips has sufficiently

alleged that Tush and Craig undertook affirmative actions which

worked to Mark Phillips’ detriment by exposing him to danger
23

and that there is a direct causal relationship between their harm

and the defendants’ actions.

We divert our discussion here to rectify an incorrect

holding by the District Court on this point. As to this fourth

element of our state-created danger analysis, the District Court

determined that Phillips had failed to allege that defendants

Tush and Craig “rendered Mark Phillips more vulnerable to

danger.” Specifically, the District Court noted that the

complaint fails to allege where the shooting took place, and

reasoned that if the shootings did not occur at Mark Phillips’

residence, the unauthorized information provided by Tush and

Craig did not render him vulnerable to danger. This was simply

wrong. Where Mark Phillips was killed is not dispositive. At

this preliminary pleading stage, it is reasonable to infer that

Michalski could have gained relevant information at Mark

Phillips’ house as to his whereabouts, which could have directly

assisted Michalski in stalking and killing him. 

Such an unduly crabbed reading of the complaint denies

Phillips the inferences to which her complaint is entitled. Based

on the allegations in Phillips’ complaint and reasonable

inferences drawn from those allegations, Phillips may well be

able to prove facts that would satisfy the four elements of the

state-created danger analysis with respect to Tush and Craig.

Therefore, Phillips has alleged the deprivation of an actual

constitutional right, the substantive due process right to life and

liberty under the Fourteenth Amendment and we will reverse the

District Court’s contrary determination.

B.
24

To properly allege a state-created danger claim, a

plaintiff must additionally plead that the harm ultimately caused

was a foreseeable and a fairly direct result of the state's actions.

Morse v. Lower Merion School Dist., 132 F.3d 902, 908 (3d Cir.

1997). As to foreseeability, the District Court initially

determined that since there were “no allegations in the

complaint that Michalski had a history of violence or, if he did,

that any of the defendants were aware of this history of

violence,” the harm caused by Michalski was not foreseeable.

We have never held that to establish foreseeability, a plaintiff

must allege that the person who caused the harm had a “history

of violence.” Indeed, these types of cases often come from

unexpected or impulsive actions which ultimately cause serious

harm. For example, in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.

1996), it was alleged that when a police officer left an

intoxicated woman outside alone late at night, ordinary common

sense and experience (in this instance attributed to the officer)

sufficiently informed the officer of the forseeability of harm to

the woman. This information was sufficient to put him on notice

that leaving the woman significantly enhanced the risk of harm

to her. We concluded that the harm incurred by the woman in

Kneipp was foreseeable. Id. at 1208.

Also, in Rivas, supra., it was alleged that because the

state actors were emergency medical technicians, their expertise

equipped them with concrete information that a seizure victim

should not be restrained. The information that they had was

sufficient to put them on notice of the harm that would result if

they failed to tell the police officers who arrived on the scene to

assist the emergency medical technicians with the seizure

victim. We concluded that, in the context of a state-created
25

danger claim, the harm to the seizure victim was foreseeable.

365 F.3d at 194. 

Conversely, in Morse, there was no allegation that the

school district had sufficiently concrete information about the

risk of violence presented by the perpetrator or other trespassers

on school property to put the school district on notice of the

harm that might result from a propped-open door. Therefore,

when the school district employees, contrary to their own

regulations, unlocked the door for the contractors to work, and

the perpetrator of the violent incident entered through that open

door, we held that the school district lacked sufficiently concrete

information to consider its action a foreseeable cause of the

harm to the teacher who was shot. As we explained, the harm

was “too attenuated” because the only notice to the school

district that the harm might occur was that the person who

ultimately shot the teacher had been loitering in the hallways the

week before the killing. Morse, 132 F.3d at 908-09. Knowledge

of someone loitering, in and of itself, did not provide defendants

with notice of a risk of violence. To adequately plead

foreseeability then, we require a plaintiff to allege an awareness

on the part of the state actors that rises to level of actual

knowledge or an awareness of risk that is sufficiently concrete

to put the actors on notice of the harm. Turning to the complaint

here, such an awareness was clearly alleged as to Tush and

Craig.

Tush and Craig were dispatchers at the Allegheny County

911 Call Center. Starting at paragraph 23, Phillips’ complaint

adequately establishes that Tush and Craig were actually aware

based on concrete information of the risk of harm. First,

paragraph 23 establishes that after being suspended from his job,
5. At paragraph 27, the complaint alleges that

“[d]efendants were aware that the relationship between

Ferderbar and Michalski had recently ended and that Michalski

was distraught over this.” While this paragraph does not

specifically aver that Tush and Craig were aware of this, they

certainly are “defendants” in this case and the generic use of that

term includes them.

26

Michalski called the 911 Call Center and spoke with Tush and

Craig. Paragraph 24 alleges that Michalski requested

information that would assist Michalski in locating Phillips. In

paragraph 26, Phillips alleges that Tush and Craig assisted

Michalski. The complaint additionally alleges (paragraph 27)

that Tush and Craig were aware that the relationship between

Ferderbar and Michalski had recently ended and that Michalski

was in a distraught mental state as a result.5

At paragraph 40, the complaint alleges that Michalski

again contacted the 911 Call Center and spoke with Tush and

Craig, among others. During this conversation, Michalski

allegedly indicated that he “had nothing left to live for” and that

Ferderbar and Mark Phillips “were going to pay for putting him

in his present situation.” We view this allegation as putting

Tush and Craig on notice that their actions in giving Michalski

the unauthorized information about Mark Phillips significantly

enhanced the risk of harm to him. The alleged statement by

Michalski also made Tush and Craig actually aware of the risk

to Mark Phillips. Therefore, the complaint adequately alleges

foreseeability as to these two defendants and the District Court’s

determination to the contrary will be reversed.
27

The District Court noted that the only individuals who

were alleged to have accessed Mark Phillips’ personal

information on the 911 computers were Tush and Craig.

Therefore, the Court also dismissed the state-created danger

counts against all other remaining defendants. 

The gist of the allegations against the remaining

individual defendants (Deutsch, Ging, Zurcher and Cestra) are

found in paragraphs 40 and 41 of the complaint. Paragraph 40

alleges that Michalski contacted individual defendants Deutsch,

Ging, Zurcher and Cestra and that Michalski explained the

circumstances of his dismissal and also related that he “had

nothing left to live for and that Ferderbar and Mark Phillips

were going to pay for putting him in his present situation.”

Paragraph 41 alleges that the aforementioned defendants “made

no effort to contact either Ferderbar, Mark Phillips or the police

departments . . . .” These two paragraphs contain the only

allegations that pertain to the remaining individual defendants

specifically. Not only do these allegations fail to allege any

affirmative actions, we further conclude that foreseeability was

also not alleged against these remaining defendants.

 The complaint also fails against these defendants because

it has not been alleged that any actions on their part enhanced

the risk of that harm. As the District Court indicated, these

defendants were not accused of the actions attributed to

defendants Tush and Craig or to defendant Nussbaum. No

alleged actions of these remaining defendants could be viewed

as enhancing the risk of harm to Mark Phillips and for that

reason, “foreseeability” was not properly alleged here.
28

 Once the foreseeability element of the state-created

danger test has been determined, the complaint must also allege

that the attack or harm is a “fairly direct” result of the

defendant’s acts. Such “directness” has been adequately

pleaded against defendants Tush and Craig. Although this

inquiry is unavoidably fact specific for each individual case, 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 harmcausing party. See Morse, 132 F.3d at 909 (to satisfy the first

element “the harm visited on the plaintiffs [must be] more

foreseeable than the random attack.”). In Estate of Smith v.

Marasco, 318 F.3d 497 (3d Cir. 2003), for example, we reversed

the District Court’s finding that the harm caused to the plaintiff

was not foreseeable because it was not fairly direct. In so doing,

we concluded that the fact that some of the police officers were

aware of Smith’s mental and medical conditions combined with

the obviously stressful position they placed him in created the

foreseeable possibility that Smith could be injured or killed,

especially with the knowledge that he was without his

medication. See Smith, 318 F.3d at 507. 

In Morse, however, we held as a matter of law, that

defendants could not have foreseen that allowing construction

workers to use an unlocked back door could also permit a

mentally disturbed individual to enter and cause harm to an

individual in the school. See Morse 132 F.3d at 908. Put

another way, the harm was not “fairly direct.”

Here, the harm caused to Phillips was a fairly direct result

of Tush and Craig’s actions. First, unlike in Morse, Mark
29

Phillips was not a random individual who “happened” to be in

the path of danger. Rather, Mark Phillips was the new boyfriend

of Michalski’s former girlfriend. The complaint alleges that

Michalski knew that Mark Phillips was Ferderbar’s new

boyfriend. The complaint also alleges that Tush and Craig

knew that Michalski was distraught and that he had threatened

to make Mark Phillips “pay.” We conclude that this sufficiently

pleads that the attack and murder of Mark Phillips was a “fairly

direct” result of Tush and Craig’s activities. Far from being

unrelated to an intervening third party, for example, Mark

Phillips was an individual directly affected by these defendants’

decisions. It is reasonable to infer from the complaint that

Michalski used the time, access and information given to him by

the defendants to plan an assault on Mark Phillips and

Ferderbar. 

C.

Next, we turn to the question of whether Phillips has

properly alleged that Tush and Craig acted with a degree of

culpability that “shocks the conscience.” Bright, 443 F.3d at

281. This determination depends largely on the circumstances

of the case.

Our most recent discussion of the culpability element of

the state-created danger test can be found in Sanford v. Stiles,

456 F.3d 298 (3d Cir. 2006), an opinion issued four months after

our decision in Bright. In Sanford, the plaintiff was the mother

of a 16-year-old boy who committed suicide a short time after

he had spoken with a high school guidance counselor who had

inquired as to the boy's welfare and whether he had any plans to
30

harm himself. Sanford, 456 F.3d at 301. The boy, Michael

Sanford, had sent a note to a former girlfriend in which he said

"I've heard 3 different stories about you & Ryan. The one I

heard almost made me want to kill myself." Id. at 299. The

former girlfriend went to a guidance counselor with the note,

expressing concern for Michael, as well as indicating that she

wanted him to stop "bugging" her. Id. After reviewing the note,

a guidance counselor, Pamela Stiles, called Michael into her

office and had a discussion with him to explore whether he was

upset. Id. Stiles expressly asked Michael if he had any plans to

harm himself, to which he responded "definitely not." Id.

Despite giving this answer, about one week after this meeting,

Michael killed himself.

Sanford then filed a claim against Stiles and the school

district in which she alleged that the defendants were liable for

Michael's death under a state-created danger theory. Id. 301. In

affirming the district court's summary judgment in favor of the

defendants, the Sanford court concluded that Sanford had not

established that Stiles acted with the requisite degree of

culpability to sustain a claim grounded on a state-created danger

theory. In so concluding, we held that there is a continuum

upon which the degree of culpability required to establish such

a claim must be measured, relating to the circumstances of each

case.

The time in which the government actors had to respond

to an incident is of particular significance. For example, in

Sanford, we stated that "[t]he level of culpability required to

shock the conscience increases as the time state actors have to

deliberate decreases." Id. at 306. We then concluded that
31

although intent to cause harm must be found in a

"hyperpressurized environment," where officials are afforded

the luxury of a greater degree of deliberation and have time to

make "unhurried judgments," deliberate indifference is

sufficient to support an allegation of culpability. Id. We further

noted "the possibility that deliberate indifference might exist

without actual knowledge of a risk of harm when the risk is so

obvious that it should be known." Id. Finally, where the

circumstances require a state actor to make something less

exigent than a "split-second" decision but more urgent than an

"unhurried judgment," i.e., a state actor is required to act "in a

matter of hours or minutes," a court must consider whether a

defendant disregarded a "great risk of serious harm rather than

a substantial risk." Id.

Therefore, under Sanford, three possible standards can be

used to determine whether state action shocked the conscience:

(1) deliberate indifference; (2) gross negligence or arbitrariness

that indeed shocks the conscience; or (3) intent to cause harm.

456 F.3d at 306. Taking the allegations as true, the complaint

leads us to conclude that defendants Tush and Craig were not

acting in a “hyperpressurized environment.” Instead, they had

sufficient time to proceed deliberately. The complaint alleged

that Michalski asked Tush and Craig for their help in obtaining

confidential computer information on Ferderbar and Mark

Phillips, assistance which they ultimately provided. Complaint

paragraph 26. Also, at paragraph 40, Michalski telephones

Craig and Tush (among others) and tells them that he has

“nothing to live for” and that Ferderbar and Mark Phillips

“would pay for putting him [Michalski] in this situation.” There

is no sense of urgency or emergency here either. The complaint
6. Sanford is specific: “We again clarify that in any

state-created danger case, the state actor's behavior must always

shock the conscience. But what is required to meet the

conscience-shocking level will depend upon the circumstances

of each case, particularly the extent to which deliberation is

possible. In some circumstances, deliberate indifference will be

sufficient. In others, it will not.” 456 F.3d at 309.

32

does not allege any facts which would lead to an inference that

Michalski was on his way to attack Phillips or that he told the

dispatchers that he was at Phillips’ house. The dispatchers here

had no information which would have placed them in a

“hyperpressurized environment.” Hence, to “shock the

conscience,” they have to have behaved with deliberate

indifference to the results of their actions.6

 Phillips has alleged sufficient facts, which, if proven,

would demonstrate that these defendants were deliberately

indifferent, establishing a level of culpability that was

conscience-shocking. Accepting the allegations of the

complaint as true, the complaint alleges that Tush and Craig

were aware that Michalski was distraught over his break up with

Ferderbar and yet they assisted him in getting confidential

information on Ferderbar and Phillips. Tush and Craig did not

have to make any hurried judgments in responding to

Michalski’s requests for assistance. Unlike most state-created

danger cases, Tush and Craig did not have to make a decision at

all; they could have refused Michalski’s inappropriate requests

and terminated his telephone call immediately. 
7. To decide if an individual government official is

entitled to qualified immunity, a court must first “determine

whether the plaintiff has alleged the deprivation of an actual

constitutional right at all.” Wilson, 212 F.3d at 786 (citation

omitted). If plaintiff has alleged such a deprivation, a court

(continued...)

33

Taking these allegations as true and drawing reasonable

inferences therefrom, the complaint does sufficiently allege facts

that these defendants not only foresaw the danger of harm their

actions presented, but were deliberately indifferent in providing

Michalski more confidential information.

The District Court determined that Phillips failed to

allege that the defendants’ behavior “shocked the conscience”

and concluded as a matter of law that the alleged conduct of

Tush and Craig in providing Michalski with unauthorized

personal information concerning Mark Phillips from the 911

Call Center’s network and databases does not rise to the

required level of conscience shocking action. The District Court

opined that no reasonable dispatcher in the position of these

dispatchers would have understood his or her conduct to be

conscience-shocking. Cf. Estate of Smith v. Marasco, 430 F.3d

140, 154 (3d Cir. 2005). The District Court, again here, was

wrong.

First, the District Court’s conclusory reliance on Estate

of Smith (Smith II), was inappropriate. The discussion in Smith

II focused on the application of qualified immunity — not

whether the plaintiff had appropriately alleged a state-created

danger claim.7

 Although such a determination may be germane
7.(...continued)

should thereafter “proceed to determine whether that right was

clearly established at the time of the alleged violation.” Id.

Although it is important to resolve qualified immunity questions

at the earliest possible stages of litigation, the importance of

resolving qualified immunity questions early “is in tension with

the reality that factual disputes often need to be resolved before

determining whether defendant's conduct violated a clearly

established constitutional right.” Curley v. Klem, 298 F.3d 271,

277-78 (3d Cir. 2002). A decision as to qualified immunity is

“premature when there are unresolved disputes of historical

facts relevant to the immunity analysis.” Id. at 278. Following

Wilson, the District Court should have first decided whether

Phillips has alleged the deprivation of a constitutional right. If

he has, then, the Court should have determined whether that

right was clearly established at the time the individual

defendants allegedly violated that right.

34

when deciding qualified immunity, it is not relevant to a

determination at the 12(b)(6) dismissal stage. Second, our test

for whether a plaintiff has alleged that an action “shocks the

conscience” does not contain a requirement that the actor know

his or her actions are “conscience-shocking.” The District Court

inappropriately imported an element of qualified immunity

analysis into its state-created danger analysis.

D.

Finally, the state-created danger analysis requires that

some relationship exist between the state and the plaintiff. The
35

District Court did not analyze this element. To adequately

allege such a relationship, a plaintiff need not plead facts that

show the same “special relationship” basis for constitutional

liability. Morse, 132 F.3d at 912. Instead, the relationship

requirement of the third element “contemplates some contact

such that the plaintiff was a foreseeable victim of the

defendant’s acts in a tort sense.” Morse, 132 F.3d at 912. The

relationship that must be established between the state and the

plaintiff can be “merely” that the plaintiff was a foreseeable

victim, individually or as a member of a distinct class. See

Rivas 365 F.3d at 202. Such a relationship may exist where the

plaintiff was a member of a discrete class of persons subjected

to the potential harm brought about by the state’s actions.

Morse, 132 F.3d at 913; Rivas, 365 F.3d at 197. 

Here, Mark Phillips was a member of a discrete group

(namely, Ferderbar and himself) that was subjected to harm by

the defendant’s actions. He was specifically targeted for

retribution by Michalski. Complaint at paragraph 40. Lending

more support to Phillips’ ability to satisfy this element, Mark

Phillips was also in a close personal relationship with Ferderbar,

with whom Michalski was infatuated. Tush and Craig were

aware of this connection. Moreover, Mark Phillips was

specifically contemplated in Michalski’s threatened violence.

Complaint at paragraph 40. Therefore, Phillips has adequately

alleged that there was a relationship between plaintiff and the

state for purposes of the state-created danger theory.

E.
36

In sum, the District Court erred in dismissing the statecreated danger claims against defendants Tush and Craig.

Although we find no error in the dismissal of the state-created

danger claims against defendants Nussbaum, Ging, Zurcher and

Cestra, we will remand to the District Court with instructions to

permit Phillips an opportunity to amend her claims against

defendant Nussbaum to allege — if she can — an affirmative act

by Nussbaum. We conclude that it would be futile to permit

amendment as to the remaining defendants because we conclude

that Phillips cannot plead foreseeability on their part.

IV.

Phillips’ complaint additionally alleges violations of

equal protection (Counts One and Two). Specifically, the

complaint alleges that defendants' actions “were intentional

and/or constituted willful disregard, gross recklessness and

deliberate indifference for [Mark] Phillips' personal safety,

well-being and right to life in derogation of the ... Equal

Protection clause ... of the Fourteenth Amendment of the United

States Constitution.” The District Court recognized that Phillips

raised a “class of one” equal protection claim, which is

governed by the Supreme Court’s holding in Village of

Willowbrook v. Olech, 528 U.S. 562 (2000), but dismissed the

complaint because Phillips failed to allege that the Defendants

intentionally treated Mark Phillips differently from other

similarly situated persons.

In Olech, a municipality conditioned water service for a

property on the plaintiff-owner's granting a 33-foot easement,

even though it required only a 15-foot easement from every
37

other property owner. Id. at 563. The Supreme Court allowed

the plaintiff to proceed on the class-of-one theory, recognizing

claims where a “plaintiff alleges that she has been intentionally

treated differently from others similarly situated and that there

is no rational basis for the difference in treatment.” Id. at 564.

The Supreme Court stated that allegations of irrational and

wholly arbitrary treatment, even without allegations of improper

subjective motive, were sufficient to state a claim for relief

under equal protection analysis. Id. at 565. 

We have little jurisprudence discussing this “class of

one” theory. Our only precedential opinion to discuss such

claims held that

Our court has not had the opportunity to consider

the equal protection “class of one” theory at any

length. From the text of Olech itself, however, it

is clear that, at the very least, to state a claim

under that theory, a plaintiff must allege that (1)

the defendant treated him differently from others

similarly situated, (2) the defendant did so

intentionally, and (3) there was no rational basis

for the difference in treatment.

Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006). So,

to state a claim for “class of one” equal protection, a plaintiff

must at a minimum allege that he was intentionally treated

differently from others similarly situated by the defendant and

that there was no rational basis for such treatment.
38

Although our jurisprudence does not discuss class-of-one

equal protection claims in detail, the Court of Appeals for the

Second Circuit has gone further and we find its analysis of

pleading requirements for these type of claims persuasive. In

Demuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003), the Court of

Appeals for the Second Circuit reversed a district court’s

determination that Demuria had failed to adequately plead a

“class of one” equal protection violation. Demuria involved a

neighbor-to-neighbor dispute concerning water run-off. The

plaintiffs had made a "general" and "relatively bare" allegation

that the defendant police officer gave them a different standard

of police protection than that typically afforded a resident [of the

town] and alleged facts that the officer was in violation of his

duty as an officer. DeMuria, 328 F.3d at 707. The District

Court found the allegation that the police officer had treated the

DeMurias differently from other citizens to be insufficiently

specific for the purpose of maintaining an equal protection claim

because the DeMurias did not name any similarly situated

individuals or identify any differently-handled disputes.

The Court of Appeals reversed and held that the Supreme

Court’s holding in Olech does not establish a requirement that

a plaintiff identify in a complaint actual instances where others

have been treated differently for purposes of equal protection.

Id. at 707. The Supreme Court pointed out that “[i]ndeed, it

appears that Olech herself did not ‘name names’ in her

complaint, but made the more general allegation that similarly

situated property owners had been asked for a different

easement.” Id. The Supreme Court determined that such an

allegation could “fairly be construed” as a sufficient allegation

for stating an equal protection claim. Id. quoting Olech, 528
39

U.S. at 565. In Demuria, the plaintiffs made a general allegation

that defendant Hawkes gave them a different standard of police

protection than that typically afforded a resident of the town.

The Court of Appeals found this general allegation to be

sufficient and we agree with that determination.

Although Demuria does relax the “class of one” pleading

requirements by negating the need for specificity, an allegation

of an equal protection violation still must contain a claim that a

plaintiff has been treated differently from others who are

similarly situated. The District Court here dismissed the

complaint because it determined that Phillips had not alleged

that the defendants treated the decedent differently from others

similarly situated. Phillips’ complaint does raise very general

accusations. For example, Count One alleges claims against

Allegheny County and the Allegheny County 911 Services. In

Paragraph 45 of Count One, Phillips alleges that “the actions of

the defendant were intentional and/or constituted willful

disregard, gross recklessness and deliberate indifference for

Phillips’ personal safety, well-being and right to life in

derogation of the Due Process and Equal Protection clauses of

the Fourteenth Amendment.” Count Two of the complaint

alleges claims against the individual defendants Nussbaum,

Tush, Craig, Deustch, Ging, Zurcher and Cestra. In Paragraph

54, the complaint alleges that “the actions of the defendants

were intentional and/or constituted willful disregard, gross

recklessness and deliberate indifference for Phillips’ personal

safety, well-being and right to life in derogation of the Due

Process Clause and Equal Protection clauses of the Fourteenth

Amendment of the United States Constitution.” 
40

Clearly, both of these counts specifically refer to the

Equal Protection Clause. Furthermore, Paragraphs 50 and 58

specifically allege that the defendants’ conduct deprived Phillips

of his right to life in violation of the Equal Protection Clause.

But, these general accusations and the invocation of the Equal

Protection Clause are not enough.

We note that the Olech decision does not establish a

requirement that a plaintiff identify in the complaint specific

instances where others have been treated differently for the

purposes of equal protection. See DeMuria, 328 F.3d at 707.

Indeed, in reversing the dismissal of the complaint in DeMuria,

the Court of Appeals indicated that while the plaintiffs in that

case “face[d] a significant hurdle in finding evidence to prove

their allegations of selective enforcement and unequal treatment,

such concerns should not defeat their claim at the pleading

stage.” Id. Here, however, Phillips’ complaint does not contain

specific allegations that he was treated differently. The facts

section of the Complaint (Paragraphs 17-42) reveals the

egregious actions of various individuals at the 911 computer

center — actions that are alleged to have led to Phillips’ death.

However, there is no allegation that these actions resulted in him

being treated differently from other individuals — individuals

whose personal information is in the 911 database. Paragraph

26 of the Complaint, for example, indicates that “Defendants

Tush and Craig assisted Michalski knowing that they were

accessing unauthorized personal information that had absolutely

no relationship to their functions as dispatchers and [sic] a 911

emergency call center.” This allegation, however does not aver

that Phillips was treated differently.
41

 The Complaint, in Counts One and Two, does contain a

specific reference to the Defendants’ intentional actions, which

resulted in a violation of the Phillips’ rights under the Equal

Protection Clause of the Fourteenth Amendment. See e.g.

Complaint at Paragraphs 45, 54. Again, however, there is no

allegation that Phillips was treated differently. 

In opposition to a motion to dismiss in the District Court,

and again before this Court on appeal, Phillips argues that her

complaint alleges that, although other persons similarly situated

had personal information accessed only for legitimate 911

purposes, [Mark Phillips] was discriminated against by the

individual defendants in that they accessed his personal

information to assist Michalski in his attempt to track and

eventually kill him. We agree with the District Court’s

determination that, on the face of the complaint, no such

allegation was made. Even under the less stringent pleading

standards set forth in Olech and Demuria, Phillips’ class-of-one

equal protection claim is inadequately pleaded. Nonetheless,

dismissal at this stage was premature and hence, error.

As we indicated above, if a complaint is subject to a Rule

12(b)(6) dismissal, a district court must permit a curative

amendment unless such an amendment would be inequitable or

futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).

Moreover, we have instructed that a district court must provide

the plaintiff with this opportunity even if the plaintiff does not

seek leave to amend. Id. Accordingly, even when plaintiff does

not seek leave to amend his complaint after a defendant moves

to dismiss it, unless the district court finds that amendment

would be inequitable or futile, the court must inform the plaintiff
42

that he or she has leave to amend the complaint within a set

period of time. See Grayson, 293 F.3d at 108. A district court

may dismiss the action if the plaintiff does not submit an

amended pleading within that time, or if the plaintiff files notice

with the district court of his intent to stand on the complaint.

See Shane, 213 F.3d at 116 (citation omitted).

The District Court's memorandum opinion indicates that

it dismissed Phillips’ Section 1983 claims with prejudice after

receiving the parties' briefs on the motion to dismiss. There is no

indication that the District Court informed Phillips that she

would have leave to amend her complaint. Moreover, the

memorandum opinion contained neither a finding that a curative

amendment would be inequitable or futile, nor a finding that

Phillips had failed to file a timely amended pleading or had filed

notice of her intention to stand on the complaint. There is no

indication that Phillips wishes to stand on the complaint for

purposes of this appeal. Indeed, Phillips argues that, in the

event we determine she has failed to state a claim, we remand

the matter to the District Court with instructions to permit

amendment. See Batoff v. State Farm Ins. Co., 977 F.2d 848,

851 n. 5 (3d Cir. 1992).
43

V.

Standards of pleading are not the same as standards of

proof. We express no opinion on whether Phillips will

ultimately be able to prove her case. At this pleading stage,

however, the District Court erred in several respects. Hence, we

will reverse the District Court’s dismissal of Tush, Craig and

Nussbaum, and will remand with instructions to the District

Court to permit Phillips an opportunity to amend her statecreated danger claims against Nussbaum. We will affirm the

District Court’s dismissal of the remaining defendants. 

Although we conclude that the District Court did not err

in its analysis of Phillips’ equal protection claim, we will

remand this claim as well, once again instructing the District

Court to provide Phillips an opportunity to amend her

complaint. 

ROTH, Circuit Judge, Concurring:

I concur in the opinion of the majority. I write separately

to note a potential issue that could be created by broad

application of the “class of one doctrine.”

In the context of a substantive due process claim, the

Supreme Court has established that to recover a plaintiff must

establish that the behavior of the government “shocks the

conscience” of a reasonable observer. County of Sacramento v.

Lewis, 523 U.S. 833 (1998). That is, the government’s behavior
8.On the facts of Lewis itself, the representatives of the

deceased motorcycle passenger could argue that while the

officer’s actions in beginning a high speed pursuit might not

shock the conscience, the officer did treat that particular

motorcyclist differently than other similarly situated

motorcyclists and that there was no rational basis for such a

decision. 

44

must be not just arbitrary and capricious, but shocking.

In contrast, a plaintiff proceeding under an equal

protection “class of one” theory may recover if she can establish

that she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment. Village of Willowbrook v. Olech, 428

U.S. 562 (2000). Phillips is proceeding here on such a theory.

A broad reading of Olech could allow any plaintiff with

an insufficiently shocking due process claim to resurrect her

constitutional claim by repleading her case as representing a

“class of one” victimized by the particular government action at

issue.8

 I do not believe that the Supreme Court intended Olech

to undermine Lewis in this fashion, and I would urge the District

Court to be mindful of this issue as it conducts further

proceedings in this case.