* District Judge of the Southern District of Texas, sitting

by designation.

1 United States Court of Appeals,

Fifth Circuit.

No. 93-1546.

Marsha LEFFALL, Individually and as the Surviving Parent of

Dameon Steadham and/or Personal repres entative of the Estate of

Dameon Steadham, Deceased, Plaintiff-Appellant,

v.

DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Defendants,

Dallas Independent School District and Napoleon B. Lewis,

Defendants-Appellees.

Aug. 15, 1994.

A ppeal from the United States District Court for the North ern

District of Texas.

Befor e KING and WIENER, Circuit Judges, and ROSENTHAL, * District

Judge.

KING, Circuit Judge:

Eighteen-year-old Dameon Steadham was killed by random gunfire

in the parking lot of a public high school after a school dance.

The principal question posed by this appeal is whether the decision

of the public school district and the high school principal to

sponsor the dance despite their knowledge of the danger of such an

occurrence violated Steadham's constitutional rights.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The allegations of the complaint, which must be taken as true

for purposes of reviewing a dismissal for failure to state a claim

on which relief can be granted, included the following. On or

about the evening of April 17, 1992, Dameon Steadham attended a2

dance held upon the grounds of Lincoln High School in Dallas,

T exas. The dance was sponsored by Lincoln High School and an

organization identified only as the "Parent Teacher Association."

After the dance, a number of teenagers congregated in the Lincoln

High School parking lot. Several individuals began to fire

handguns randomly and recklessly into the air . In the course of

the shooting, sixteen-year-old John L. Cofield, a student at Bryan

Adams High School, accidentally and fatally shot Stea dham in the

head.

Steadham's mother, Marsha Leffall, brought the instant suit in

Texas state court against the Dal las Independent School District

(DISD), Cofield, Marilyn Clayter (Cofield's mother), and Napoleon

Lewis (principal of Lincoln High School). The petition and amended

petition alle ged that at the time of the incident in question it

was well-known th at students attending schools in the DISD (and

Lincoln High School in particular) often carr ied and fired

dangerous weapons on school property. The petition also alleged

that the Safety and Security Department of the DISD took inadequate

measures to pr event the events leading to Steadham's death,

assigning only two unarmed security guards to the Lincoln High

School Dance that night. The frequency of gunfire during and after

school functions at Lincoln High School was so well-known that

officials of the Dallas Police Department h ad previously asked

Lincoln High School officials to re frain from sponsoring school

functions until adequate police security could be provided.

After Leffall filed her original petition, the DISD and Lewis3

filed a motion for summary judgment on the basis of sovereign

immunity. Leffall then amended her petition to include a claim

based on 42 U.S.C. § 1983 (without altering the factual allegations

made in the original petition). The DISD and Lewis then removed

the suit to federal district court and filed a motion in federal

court to dismiss for failure to state a claim. Leffall filed a

motion to remand the case to state court and replied to the

defendants ' motion to dismiss. Soon thereafter Leffall filed a

motion for leave to file a second amended complaint.

At this point a problem in the record asserts itself. Leffall

states in her brief before this court that she appended her second

amended complaint to her motion for leave to amend; our review of

the recor d on appeal shows this not to be the case. In a

late-filed volume of supplemental record on appeal, we find a copy

of a document styled "Plaintiff's Seco nd Amended Original

Complaint" and a letter to the clerk of the district court for the

Northern District of Texas explaining that the second amended

complaint had been stamped "received" instead of "filed." The

second amended complaint pleaded Leffall's causes of action against

the DISD and Lewis with greater particularity, clearly alleging

callous indifference on the part of the DISD and Lewis and alleging

that the inadequate security on the night of the dance was provided

pursuant to a practice so widespread and well-established as to

represent the policy of Lewis and t he DISD. The second amended

complaint also sought to add a cause of action based on breach of

an implied warranty by the DISD and Lewis to paying dance patrons4

that the dance would be safe to attend and that the DISD and Lewis

would provide security adequate to protect patrons from foreseeable

criminal activity; this breach of warranty claim was stated in

terms of Texas state law rather t han in terms of federal law

violations. Leffall later filed a motion to compel and for

sanctions against the DISD and Lewis for discovery abuse, which was

referred to a magistrate judge.

Before the magistrate judge could rule on Leffall's motion to

compel and for sanctions, the district court denied Leffall's

motions to remand and to amend her complaint and granted the motion

to dismiss filed by the DISD and Lewis. Leffall filed a motion to

reconsider and a second request for leave to amend her complaint

(again, Leffall's third amended complaint appears only in the

supplemental record on appeal), both of which were denied, and she

timely filed her notice of appeal. She challenges the district

court's denial of her motions to remand and to amend her complaint

and the dismissal of her lawsuit against the DISD and Lewis.

II. STANDARDS OF REVIEW

We review a dismissal for failure to state a claim under the

same standard used by the district court: a claim may not be

dismissed unless it appears certain that the plaintiff cannot prove

any set of facts in support of his claim that would entitle him to

relief. N orman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994);

Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994).

Because removal is an issue of statutory construction, we

review a district court's determination of the propriety of removal1 This court has jurisdiction over a denial of a motion to

remand to state court when coupled with the appeal of a final

judgment. Jones v. Newton, 775 F.2d 1316, 1317 (5th Cir.1985).

5 de novo. Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d

591, 593 (5th Cir.1991). Removal statutes are to be strictly

construed against removal. B rown v. Demco, Inc., 792 F.2d 478, 482

(5th Cir.1986); Noble v. Bradford Marine, Inc., 789 F.Supp. 395,

396 (S.D.Fla.1992).

The decision to grant or deny a motion to amend is entrusted

to the sound discretion of the district court. N orman, 19 F.3d at

1021; A vatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d

314, 320 (5th Cir.1991). This discretion, however, is limited by

Federal Rule of Civil Procedure 15(a), which states that "leave

shall be freely given when justic e so requires." We have stated

that the district court's discretion does not permit denial of a

motion to amend unless there is a s ubstantial reason to do so.

Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (Former 5th

Cir. Nov. 1981). Two valid reasons we have recognized in the past

are untimeliness and futility. E .g., Avatar Exploration, 933 F.2d

at 320-21. If a district court does not give an explanation for

i ts denial of a motion to amend, its reasons must be readily

a pparent in view of the liberal position of the federal rules on

granting amendments. Dussouy, 660 F.2d at 597.

III. ANALYSIS

A. M OTION TO R EMAND

We turn first to Leffall's contention that the district court

erred in denying her motion to remand her lawsuit to state court. 1See generally 15A C HARLES A. W RIGHT ET AL

., F EDERAL P RACTICE AND P ROCEDURE

§ 3905.1 (2d ed. 1992).

6 Leffall asserts and the appellees do not deny that she filed

her original petition in Texas state court on November 10, 1992,

and that Lewis was served with a copy of the original petition on

Dec ember 9, 1992. Lewis and the DISD answered on November 24,

1992. Leffall filed her amended petition, which added the § 1983

claim, in state c ourt on January 26, 1993. Lewis and the DISD

filed their notice of removal on February 4, 1993.

Leffall contends that Lewis and the DISD filed their notice

of removal outside the thirty-day time limit established by 28

U.S.C. § 1446(b), which provides as follows:

The notice of removal of a civil action or proceeding

shall be filed within thirty days after the receipt by the

defendant, through service or otherwise, of a copy of the

initial pleading setting forth the claim for relief upon which

such action or proceeding is based....

If the case stated by the initial pleading is not

removable, a notice of removal may be filed within thirty days

after receipt by the defendant, through service or otherwise,

of a copy of an amended pleading, motion, order or other paper

from which it may first be ascertained th at the case is one

which is or has become removable....

The district court concluded that the defendants' notice of removal

was timely, stating that "the federal question on which defendants

predicate jurisdiction did not appear in the case until January 26,

1993." Leffall claims that the district court applied the

incorrect standard to her original petition; in her view, the

thirty-day clock began when Lew is received the original petition

because the original petition did not disclose that the case was

not removable. For support she relies on Knudsen v. Samuels, 7157

F.S upp. 1505, 1507 (D.Kan.1989), in which the court stated that

"under 28 U.S.C. § 1446(b), the question is not whether the initial

pleadin g discloses the potential for removal but whether it

discloses that the case is not removable."

We have recently rejected the argument now advanced by Leffall

in Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir.1992), cert.

denied,

--- U.S. ----, 113 S.Ct. 1402, 122 L.Ed.2d 774 (1993). In

that case, Chapman sued Powerma tic, Inc. (Powermatic) in state

court; the petition revealed complete diversity of citizenship

between the parties but did not allege a specific amount of

damages. I d. at 161. More than thirty days later, Chapman

revealed in the course of discovery that he had suffered over

$800,000 in damages, and Powermatic promptly filed a notice of

removal. Id. We rejected Chapman's argument that the thirty-day

removal clock should begin to run when a plaintiff files a pleading

that is indeterminate as to removability if the defend ant would

know in the exercise of due diligence that the case is removable.

Id. at 162-63. We stated that the removal clock begins to run

"from the defendant's receipt of the in itial pleading only when

that pleading affirmatively reveals on its face that the plaintiff

is seeking damages in excess of the minimum jurisdictional amount

of the federal court." Id. at 163; s ee also Aaron v. National

Union Fire Ins. Co., 876 F.2d 1157, 1160-61 (5th Cir.1989) (noting

that a defendant may remove a case from state court only when the

complaint reveals on its face that it contains an issue of federal

law), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 10288

(1990). By the same token, the removal clock began to run in the

instant case only when the defendants received a pleading that

revealed on its face that Leffall was asserting a cause of action

based on federal law.

We find no error in the district court's refusal to remand

Leffall's lawsuit to state court.

B. D ISMISSAL FOR F AILURE TO S TATE A C LAIM

We begin by reciting the essential elements of a cause of

action brought under 42 U .S.C. § 1983. To state a claim under §

1983, a plaintiff must (1) allege a violation of rights secured by

the Constitution or laws of the United States and (2) demonstrate

that the alleged deprivation was committed by a person acting under

color of state law. W est v. Atkins, 487 U.S. 42, 48, 108 S.Ct.

2250, 2255, 101 L.Ed.2d 40 (1988); R esident Council of Allen

Parkway Village v. United States Dep't of Hous. & Urban Dev., 980

F.2d 1043, 1050 (5th Cir.), cert. denied,

--- U.S. ----, 114 S.Ct.

75, 126 L.Ed.2d 43 (1993). With respect to the DISD, a local

governmental unit under Monell v. Department of Social Servs., 436

U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Leffall must also

allege that an "official policy or custom" of the DISD was a cause

in fact of the deprivation of rights inflicted. I d. at 690-91, 98

S.Ct. at 2036; s ee also Webster v. City of Houston, 735 F.2d 838,

841 (5th Cir. ) (en banc) (adopting a definition of "official

policy"), modified on other grounds on reh'g, 739 F.2d 993 (5th

Cir.1984) (en banc). Local governmental units may not be held

liable under § 1983 under a theory of respondeat superior. Monell,9

436 U.S. at 691, 98 S.C t. at 2036; D oe v. Taylor Indep. Sch.

Dist., 15 F.3d 443, 452 (5th Cir.1994) (en banc), petition for

cert. filed, 62 U.S.L.W. 3827 (U.S. June 1, 1994) (No. 93-1918).

Likewise, supervisory officials may not be held vicariously liable

under § 1983 for the actions of their subordinates. Doe, 15 F.3d

at 452.

The issue in the instant case is whether Leffall has alleged

sufficient fa cts to satisfy the first prong of the analysis.

Leffall contends that Lewis and the DISD were under an affirmative

constitutional duty to protect her son from his injury and death,

even though his death was most directly the result of actions taken

by a private actor. First, Leffall argues that a "special

rel ationship" existed between the DISD and Lewis and her son,

giving rise t o a constitutional duty on the part of the state to

protect her son from danger during a school-sponsored, albeit

voluntary, activity. Second, and in the alternative, Leffall

argues that the DISD and Lewis violated a constitutional duty not

to create the hazardous environment encountered by her son on the

night of the school dance. We consider each argument in turn.

1. "Special Relationship"

The beacon guiding our analysis of the "special relationship"

theory espoused by Leffall is the Supreme Court's opinion in

DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189,

109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As in D eShaney, the

plaintiff in the instant case is relying on the substantive

component of the Due Process Clause of the Fourteenth Amendment as10

the source of the claimed constitutional right; Leffall claims

that the state was categorically obligated to provi de Steadham

protection from injury at the school dance, not that the state

denied Steadham protection without according him appropriate

procedura l safeguards. S ee id. at 195, 109 S.Ct. at 1003. As a

general matter, it is well-settled that a state's "failure to

protect an individual against private violence simply d oes not

constitute a violation of the Due Process Clause." I d. at 197, 109

S.Ct. at 1004.

The DeShaney case concerned a § 1983 action brought by Joshua

DeShaney, a child who was left seriously and permanently retarded

by ab use he suffered at the hands of his father. I d. at 191-93,

109 S.Ct. at 1001. Social service workers in the county where

DeShaney lived with his father were notified on several occasions

that DeShaney was the probable victim of child abuse, and a

caseworker recorded facts she personally observed that led her to

suspect child abuse. Id. at 192-93, 109 S.Ct. at 1001. DeShaney

was not removed from his father's custody, however, until a severe

beating sent him into a life-threatenin g coma. I d. at 193, 109

S.Ct. at 1001. DeShaney and his mother brought a § 1983 action

against the county's department of social services, contending that

the county's failure to intervene to protect DeShaney had deprived

him of his liberty without due process of l aw. Id. The Court

rejected this contention, citing the general rule that the Due

Process Clause is not violated by the state's failure to protect an

individual from private violence and concluding that DeShaney had11

not demonstrated the existence of a special relationship between

the state and himself that would justify exception to the general

rule. Id. at 197-200, 109 S.Ct. at 1004-05.

Although DeShaney failed to bring himself within the special

relationship exception to the general rule that the state has no

constitutional duty to protect individuals from private violence,

Leffall contends that Steadham does fit within that l imited

exception. In the words of the DeShaney Court,

when the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable

to care for himself, and at the same time fails to provide for

his basic human needs— e.g., food, clothing, shelter, medical

care, and reasonable safety—it transgresses the substantive

limits on state action set by the Eighth Amendment and the Due

Process Clause.

Id. at 200, 109 S.Ct. at 1005. For instance, the Court has

recognized that substantive due process requires the states to

provide involuntarily committed mental patients with such services

as are necessary to ensure their reasonable safety from themselves

and others. I d. at 199, 109 S.Ct. at 1005 (citing Youngberg v.

Romeo, 457 U.S. 307, 314-25, 102 S.Ct. 2452, 2457-63, 73 L.Ed.2d 28

(1982)). However,

it is the State's affirmative act of restraining the

individual's freedom to act on his own behalf—through

incarceration, institutiona lization, or other similar

restraint of personal liberty—which is the "depri vation of

liberty" triggering the protections of the Due Process Clause,

not its failure to act to protect his liberty interests

against harms inflicted by other means.

Id. at 200, 109 S.Ct. at 1006. It has been noted that some courts

have interpreted the phrase "or other similar restraint of personal

liberty" to encompass the relationship between school officials and12

students. Stephen Faberman, Note, T he Less ons of DeShaney:

Special Relationsh ips, Schools & the Fifth Circuit, 35 B.C.L.R EV

.

97, 110-11 (1993). It is to these cases that we next turn.

Leffall relies on our pre- D eShaney decision in Lopez v.

Houston Indep. Sch. Dist., 817 F.2d 351 (5th Cir.1987), for

support. In L opez, the § 1983 plaintiff was John Adam Lopez, a

middle school student who was injured during a fight that occurred

on a school bus taking Lopez and other students home after school.

Id. at 352. Lopez sued the bus driver, the Houston Independent

School District (HISD), and other school district officials under

§ 1983. Id. at 353. The district court granted summary judgment

in fa vor of the HISD, and we affirmed. I d. at 356. We observed

that Lopez could have been proceeding against the HISD under either

of two principal theories: either the HISD had an official policy

of giving its bus drivers inadequate safety training in light of a

pattern of serious di sciplinary problems on its school buses, or

the HISD adequately trained its drivers but ignored the widespread

failure of its drivers to follow that training when actual fights

e rupted on HISD school buses. I d. at 354. Scrutinizing Lopez's

summary judgment evidence, we conclud ed that Lopez had failed to

carry his burden under either theory because he failed to show "a

pre-existing pattern of student fights on buses, constituting a

widespread problem mandating an official response." Id. We also

affirmed summary judgment in favor of the individual HISD officials

because the summary judgment evidence could not support a finding

that those officials were deliberately indifferent to the rights of13

HISD students. Id. at 355.

In Leffall's view, the Lopez court recognized a

constitutionally-imposed duty on the par t of the HISD and its

officials not to be callously indifferent to the safety of HISD

students. Significantly, the L opez court reversed summary judgment

in favor of the bus driver himself, concluding that Lopez raised a

genuine issue of fact as to whether the bus driver was callously

indifferent to the deprivation of Lopez's constitutio nal rights.

Id. at 355-56. The court did not explain why the bus driver owed

Lopez the duty not to be callously indifferent to private threats

to Lopez's safety, but we may conclude that the court rested this

conclusion on the fact that the driver "was entrusted with the care

of students attending school under Texas' compulsory education

statute." I d. at 356. We can thus discern the following holdings

in the Lopez opinion: (1) a special relationship existed between

the bus driver and the students on his bus such that his deliberate

indifference to student fights could subject him to liability under

§ 1983, (2) the bus driver's supervisors were not liable to Lopez

because Lopez did not show that they trained bus drivers in a

manner deliberately indifferent to st udents' rights, and (3) the

HISD itself was not liable to Lopez, at least in the absence of

evidence that the HISD had a policy of indifference to student

safety by inadequ ately training its drivers to deal with student

fights in the face of a widespread problem with such fights.

It is unclear how much of Lopez 's rationale survives DeShaney.

See 1 M ARTIN A. S CHWARTZ & J OHN E. K IRKLIN

, S ECTION 1983 L ITIGATION : C LAIMS

,14

D EFENSES

, AND F EES § 3.3 (2d ed. 1991) (including Lopez in a list of

cases that "are of doubtful validity after DeShaney "); s ee also

Doe, 15 F.3d at 453, 455-56 (citing L opez only in support of a

"deliberate indifference" standard for holding supervisors liable

for the actions of their subordinates). In Griffith v. Johnston,

899 F.2d 1427 (5th Cir.1990), cert. denied, 498 U.S. 1040, 111

S.Ct. 712, 112 L.Ed.2d 701 (1991), we considered DeShaney in the

context of § 1983 claims brought by persons who had adopted

children that tur ned out to have psychological problems and

destructive tendencies. Part of the § 1983 plaintiffs' claim was

that the state of Texas had infringed on the adopted children's

liberty interests prior to their adoption. I d. at 1438-40. We

agreed with the plaintiffs that a D eShaney special relationship

existed between the state and children after the children were

removed from their natural homes and placed under state

supervision, emphasizing that the state affirmative duty to provide

services "stems from the limitation which the state has placed on

the individual's ability to act on his own behalf, and not from the

state's knowledge of the individual's predicament or from its

expressions of intent to help him." Id. at 1439. Thus, once the

children in Griffith were officially adopted under Texas law, the

duty which the state had assumed with respect to the children's

well-being lapsed. I d. at 1440. Because the adoptive parents did

not contend that the children had received anything but exemplary

treatment while in the care of the state, we rejected the

plaintiff's § 1983 claim based on a special relationship. Id. at15

1439-40.

In de Jesus Benavides v. Santos, 883 F.2d 385, 386-87 (5th

Cir.1989), we confronted a § 1983 claim brought against government

officials in charge of a city jail by jail detention officers who

were injured during an attempted escape. Relying on DeShaney, we

held that the § 1983 complaint based on the jail supervisors'

"callous indifference" or "gross negligence" in failing to protect

the jailers from injury was properly dismissed under Rule 12(b)(6).

Id. at 387-88. We acknowledged that our holding might appear to

provide greater protection for prisoners than for guards, but

concluded that the distinction drawn by the Cou rt in D eShaney

compelled such a result. I d. at 388. The affirmative duty to

protect prisoners, we observed, arises only because the state has,

by an affirmative exercise of power, so restrained the prisoner's

liberty that he cannot care for himself; prison guards and

jailers, on the other hand, are simply employees who are under no

compulsion to submit to unsatisfactory working conditions and may

quit whenever they please. I d.; see also Collins v. City of

Harker Heights,

--- U.S. ----, ----, 112 S.Ct. 1061, 1070, 117

L.Ed.2d 261 (1992) (holding that the Due Process Clause does not

guarantee municipal employees a workp lace that is free from

unreasonable risks of harm).

Several of our sister cir cuits have concluded that the

relationship between school district and student is not a special

relations hip within the meaning of D eShaney. For instance, the

Third Circuit has concluded that high school students who were16

sex ually assaulted during school hours were not in the physical

custody of the state as is re quired under D eShaney for a special

relationship to arise, and so affirmed the Rule 12(b)(6) dismissal

of their § 1983 complaint. D.R. by L.R. v. Middle Bucks Area Vo.

Tech. Sch., 972 F.2d 1364, 1368-73 (3d Cir.1992) (en banc), cert.

denied,

--- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993).

Likewise, the Seventh Circuit has concluded that the state does not

enter a sp ecial relationship with students by requiring them to

attend school because it "has not rendered its schoolchildren so

helpless that an affirmative constitutional duty to protect

arises." J .O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267,

272 (7th Cir.1990). The Eighth and Tenth Circuits have agreed with

the Th ird and Seventh Circuits. D orothy J. v. Little Rock Sch.

Dist., 7 F.3d 729, 732 (8th Cir.1993); M al donado v. Josey, 975

F.2d 727, 732 (10th Cir.1992), cert. denied,

--- U.S. ----, 113

S.Ct. 1266, 122 L.Ed.2d 662 (1993). Indeed, the Tenth Circuit has

gone so far as to hold that a school district cannot be liable for

a tort inflicted on a student by a priv ate actor during school

hours even if its employees knew that the private actor had

threatened the student and was present on school grounds. Graham

v. Independent Sch. Dist. No. I-89, 22 F.3d 991 (10th Cir.1994).

We did not address the questi on of whether a special

relationship exists in an ordinary public school setting in our en

banc decision in Doe v. Taylor Indep. Sch. Dist. D oe presented an

interlocutory appeal from the district court's denial of summary

judgment on the basis of qualified immunity. D oe, 15 F.3d at 450.17

The § 1983 plaintiff in Doe brought her lawsuit against one of her

h igh school teachers, her high school principal, and the high

school superintendent, alleging that the teacher had sexually

molested her and that each of the defendants was li able under §

1983. I d. at 449-50. We concluded that summary judgment in favor

of the superintendent was proper but that summary judgment in favor

of the princi pal was not. I d. at 457-58. Significantly, our

analysis was conducted entirely in terms of when a supervisory

school official can be he ld personally liable under § 1983 f or a

subordinate's violation of a student's constitutional rights. S ee

id. at 454 (establishing the three elements necessary to establish

liability on the part of the supervisory official). The D oe

defendants attempted to raise DeShaney in arguing that Doe had

failed to allege a constitutional violation, but we refused even to

consider whether a DeShaney special relationship arises in the

public school context because the issue was wholly irrelevant on

the facts of Doe. Id. at 451 n. 3. The special relationship

doctrine is properly invoked in cases involving harms inflicted by

third parties, and it is not applicable when it is the conduct of

a state actor that has allegedly infringed a person's

constitutional rights. Id. Thus, we neither adopted or rejected

the argument that a DeSh aney special relationship arises in the

ordinary public school context; D oe concerned only the proper

scope of school officials' constitutional duties when one of their

subordinates violates a student's rights. S ee id. at 452 ("Having

concluded that Stroud's physical sexual abuse of Jane Doe violated2 Under Fifth Circuit Local Rule 41.3, the order granting

rehearing en banc in Walton vacates the panel opinion in that

case. We discuss that opinion in full despite the grant of

rehearing en banc because we find it distinguishable on the

facts.

18 her constitutional right to substantive due process, we next must

decide whether school officials ... owe any duty to a schoolchild

when a subordinate violates that child's constitutional rights.").

We recently recognized the existence of a special relationship

and distinguished the Third Circuit's decision in D.R. by L.R. in

Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir.1994), reh'g en

banc granted (5th Cir. July 1, 1994) (No. 93-7313). 2 In W alton,

the party in interest was a student at the Mississippi School for

the Deaf who was sexually assaulted by a fellow student. I d. at

1352-53. The student's father brought a § 1983 action against the

superintendent of the school on his son's behalf, and we concluded

that a DeShaney

special relationship did indeed exist between the

state and the student. I d. at 1355. The factors that led us to

this conclusion were (1) the school was a boarding school with

twenty-four hour custody of the student, (2) the student was deaf

and lacked the basic communications skills that normal children

possess, (3) the student was obviously not free to leave while he

lived at the school, and (4) economic realities essentially force

most Mississippi families with deaf children to send their children

to the school

. Id. In sum, the "residential special education

provided by ... Mississippi has a significant custodial component

wherein Walton was dependent on the School for his basic needs and

lost a substantial measure of his freedom to act." Id.19

The instant case is distinguishable on its facts from Walton.

Lincoln High School is not a school for the disabled, nor is it a

boarding school with twenty -four hour custody of its students.

Even assuming that Steadham was required by Texas law to attend

school at his age, Leffall has not alleged that he was compelled to

attend the dance on the night in question. Thus, we need not go so

far as have some of our sister ci rcuits and conclude that no

special relationship can ever e xist between an ordinary public

school district and its s tudents; we conclude only that no such

relationship exists during a school-sponsored dance held outside of

the time during which students are required to attend school for

non-voluntary activities. As the DeShaney Court observed,

[t]h at the State once took temporary custody of Joshua does

not alter the analysis, for when it returned him to his

father's custody, it placed him in no worse position than that

in which he would have been in had it not acted at all; the

State does not become the permanent guara ntor of an

individual's safety by having once offered him shelter.

DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. Likewise, even

though Steadham may have been compelled to attend school during the

day, any special relationship that may have existed lapsed when

compulsory attendance e nded. S ee Griffith, 899 F.2d at 1440

(holding that children are no longer in a special relationship with

the state once they are officially adopted). In sum, we conclude

that the Walton holding is not applicable to the facts presented in

the instant case.

Because no sp ecial relationship exists between a school

district and its students during a school-spo nsored dance held

outside of the time during which students are required to attend20

school for non-voluntary activities, the district court did not err

i n concluding that Leffall could not state a claim based on a

DeShaney speci al relationship between the DISD and/or Lewis and

Steadham.

2. State-Created Danger

Leffall contends in the alternative that the DISD and Lewis

violated Steadham's constitutional rights by affirmatively creating

the hazardous environment that Steadham encountered t he night of

his death. Some courts have found support for this theory of §

1983 liability in the DeS haney opinion, in which the Court

remarked, "While the State may have been aware of the dangers that

Joshua faced in the free world, it played no part i n their

creation, nor did it do anything to render him any more vulnerable

to them." D eShaney, 489 U.S. at 201, 109 S.Ct. at 1006; s ee also

Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir.1992) ("Courts have

found a denial of due pro cess when the state creates the faced

danger."). The Seventh Circuit neatly summed up the state-created

danger theory in Bowers v. DeVito, 686 F.2d 616, 618 (7th

Cir.1982), as follows: "If the state puts a man in a position of

danger from private persons and then fails to protect him, it will

not be heard to say that its role was merely passi ve; it is as

much an active tortfeasor as if it had thrown him into the snake

pit." In Leffall's view, the decision of the DISD and Lewis to

continue to sponsor dances at Lincoln High School after school

hours des pite warnings from the Dallas Police Department of the

risk of harm to students attending such dances effectively created21

a hazardous environment posing an unreasonable risk of harm to all

who attended such dances.

We have found no cases in our circuit permitting § 1983

recovery for a substantive due proces s violation predicated on a

state-created danger theory, and it could be argued that the

passage from DeShaney quoted above was meant only to describe the

kind of circumstances giving rise to a "special relationship"

between state and individual; for purposes of this case, however,

we may assume without deciding that our court would recognize the

state-created danger theory. We first review the cases from other

circuits relying on this theory. In Wood v. Ostrander, 879 F.2d

583, 590 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341,

112 L.Ed.2d 305 (1990), for instance, the court held that a § 1983

plaintiff cou ld survive summary judgment when she had introduced

evidence that a police officer had arrested the driver of a car and

deserted the plaintiff, who was the passenger, in a high crime area

in the middle of night, where she was later sexually assaulted. In

White v. Rochford, 592 F.2d 381, 382-83 (7th Cir.1979), the court

found that the § 1983 plaintiffs, who were small children, had

stated a claim when they alleged that police officers had arrested

their unc le and left them unattended in a car on the side of the

freeway. In L.W. v. Grubbs, 974 F.2d 119, 121-22 (9th Cir.1992),

cert. denied,

--- U.S. ----, 113 S.Ct. 2442, 124 L.Ed.2d 660

(1993), the court held that the § 1983 plaintiff had stated a claim

by alleging that she was a registered nurse employed by the state

of Oregon, that her supervisors had directed her to work alone with22

a known violent sex offender after leading her to believe that she

would not be required to work under such conditions, and that she

had been assaulted by the sex offender once she was alone with him.

Other cases cited by Leffall are to similar effect. See, e.g.,

Dwares v. Cit y of New York, 985 F.2d 94, 98-99 (2d Cir.1993)

(holding that it would violate due process for police officers to

conspire with "skinheads" and san ction violence by skinheads

against persons demonstrating and burning American flags);

Nishiyama v. Dickson County, T enn., 814 F.2d 277, 282-83 (6th

Cir.1987) (en banc) (holding that a § 1983 complaint stated a claim

by alleging that county officials allowe d a convicted felon

"trusty" to drive a patrol car and that the trusty had used the

patrol car to direct a motorist to pull over to the side of the

road, where the trusty murdered her). We note that the First

Circuit has refused to extend the state-created danger doctrine to

a case in which the s tate provided a van to transport a mentally

ill person and the person injured himself by jumping out of the van

because he was insufficiently restrained. M onahan v. Dorchester

Counseling Ctr., Inc., 961 F.2d 987, 993 (1st Cir.1992) ("Although

the Commonwea lth [of Massachusetts] may have played some causal

role in the harm, it did so only because Monahan voluntarily

availed himself of a Commonwealth service.").

Even under the rationale of the cases recognizing a

state-created danger theory of § 1983 liability, it is not enough

to show that the state increased the danger of harm from third

persons; the § 1983 plaintiff must also show that the state acted23

with the requisite culpability in failing to protect the plaintiff

from that danger to make out a constitutional violation. Although

the Supreme Court has yet to decide precisely what level of

culpability is required as an element of a substantive due process

violation, see Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct.

668, 670, 88 L.Ed.2d 677 (1986) ("[T]he Due Process Clause of the

Fourteenth Amendment is not implicated by the lack of due care of

a n official causing unintended injury to life, liberty, o r

propert y."), the cases consistently require a § 1983 plaintiff

relying on substantive due process to show that the state actors

are guilty of "deliberate indifference" towards the victim of the

deprivation, e.g., L.W. v. Grubbs, 974 F.2d at 122-23 (holding that

the § 1983 plaintiff alleged fact s sufficient to demonstrate

"official deliberate indifference" with respect to a state-created

danger); Manarite v. City of Springfield, 957 F.2d 953, 956 (1st

Cir.) (stating that the "deliberate indifference" standard requires

the plaintiff to show (1) an unusually serious risk of harm

existed, (2) the defendant had actual knowledge, or was willfully

blind to, the elevated risk, and (3) the defendant failed to take

obvious steps to address the risk), cert. denied,

--- U.S. ----,

113 S.Ct. 113, 121 L.Ed.2d 70 (1992); S alazar v. City of Chicago,

940 F.2d 233, 238 (7th Cir.1991) ("[O]nly intentional or reckless

conduct violates the due process clause.... By reckless conduct we

mean conduct that i s reckless in the criminal sense; that is,

conduct "that reflects complete indifference to risk—when the actor

does not care whether the other person lives or dies, despite24

knowing that there is a significant risk of death.' " (citations

omitted)); s ee also 1 S HELDON H. N AHMOD

, C IVIL R IGHTS AND C IVIL L IBERTIES

L ITIGATION : T HE L AW OF S EC TION 1983 § 3.10 (3d ed. Supp.1993)

(observing that "the prevailing r ule in the circuits is that

deliberate indifference or reckless disregard is required for

substantive d ue process violations. Gross negligence is

insufficient."); c f. Doe, 15 F.3d at 454 (holding that a

supervisory school official will be liable under § 1983 when a

subordinate sexually abuses a student only if the supervisory

official demonstrated "deliberate indifference" to the student's

constitutional rights). In Gonzalez v. Ysleta Indep. Sch. Dist.,

996 F.2d 745, 760 (5th Cir.1993), we concluded that a school

district may be held liable for its supervisory failure to prevent

a teacher from sexually molesting a student only if its failure

"manifested a deliberate indifference to the welf are of school

children." Deliberate indifference is perhaps a lesser standard

than we suggested in dicta in S alas, in which we intimate d that,

even if we were to recognize a constitutional violation based on a

state-created danger, the conduct by the state would have to be so

extreme as to "shock[ ] the conscienc e." S alas, 980 F.2d at 309

(holding t h at law enforcement agents' unsuccessful attempt to

rescue a hostage from her abductor did not violate substantive due

process even if the state actors' conduct was not error-free).

Assuming arguendo that the decision of the DISD and Lewis to

sponsor the dance at Lincoln High School despite their awareness of

the dangers posed thereby was negligent, perhaps even grossly so,25

we conclude that the conduct of the state actors did not rise to

the level of deliberate indifference, which is, after all, a

"lesser form of intent" rather than a "heightened degree of

negligence." D oe, 15 F.3d at 453 n. 7. This was not a case in

which the state knowingly brought the victim into close proximity

with a specific individual known to be likely to commit violence,

like Grubbs, or abandoned the victim in a highly dangerous

environment, like Wood or Rochford, or conspired with the private

actor who inflicted the deprivation, like Dwares. Nor did the

defendants decide to sponsor the dance with an utter lack of regard

for the safety of the attendees. Leffall admits in her complaint

that the school officials provided two security guards, alb eit

unarmed guards, on the night in question, which refutes any

contention that the school officials deliberately ignored the risk

to persons attending the dance. Although the existence of

deliberate indifference is often a "fact-laden question," Doe, 15

F.3d at 456 n. 12, we conclude th at Leffall's complaint

affirmatively discloses that the state actors in the instant case

were not deliberately indifferent to Steadham's constitutional

r ights, see id. (observing that "good faith but ineffec tive

responses" by state actors tend to defeat claims of deliberate

indifference).

Although we do not condone the decisions made by the state

actors in this case, we are bound by the principle that "there is

a significant distinction between a tort and a constitutional

wrong." d e Jesus Benavides, 883 F.2d at 388. We conclude that,26

even assuming that substantive due process imposed some duty on the

state to protect Steadham from dangers arising out of sponsorship

of the dance a t Lincoln High School, Leffall failed to allege a

violation of Steadham's due process rights in her complaint because

she did not allege facts that demonstrated deliberate indifference

to those dangers on the part of the state actors.

C. M OTION TO A MEND

Finally we consider th e propriety of the district court's

denial without explanation of Leffall's motion for leave to amend.

Leffall filed her motion within two months of removal of the case

to federal court, before any meaningful adjudication of any issue

in her suit, so we may conclude that the court's denial of her

motion was not based on untimeliness or undue prejudice to the

opposing parties. It appears likely that the district court viewed

the amendment as futile in light of its decision that Leffall had

failed to state a cognizable federal claim, and we proceed to

evaluate her proposed amendment on that assumption.

In her second and third amended complaints, Leffall a dded

g reater specificity to the factual allegations made in her first

amended complaint and added a new cau se of action based on state

warranty law. She did not allege any new theories of recovery

under § 1983 or any other federal law. Again she relied solely on

the decision of Lewis and the DISD to sponsor the dance at Lincoln

High School with inadequate security in place as the state action

causing the alleged deprivation of Steadham's rights. In sum,

again assuming that DeShaney permits recognition of a substantive27

due process right to be free from state-created dangers of this

kind absent a special relationship, nothing in the proposed amended

complaints alters our conclusion, see supra part III. B, that

Leffall failed to allege facts establishing deliberate indifference

on the part of the defend ant state actors towards the safety of

those attending the dance.

We find no error in the court's denial of Leffall's motions

for leave to amend.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.