NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-2730

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DAVID and ROBYN MONN,

Individually and as the parents of B.M.

a minor, MICHAEL and JULIE FAUTH,

Individually and as the parents of L.F.

a minor and BRAD and JACKIE ADAMS,

Individually and as the parents of A.A. a minor,

Appellants

v.

GETTYSBURG AREA SCHOOL DISTRICT;

JAMES O’CONNOR; STEVE LITTEN; LAWRENCE REDDING;

SHEVELLE C, (last name withheld) in her own right and as the 

Mother of K.C., a minor; K.C., a minor; and Ms. A. in her own right and as the

Mother of K.A., a minor

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Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-12-cv-02085)

District Judge: Honorable William W. Caldwell

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Submitted Under Third Circuit LAR 34.1(a)

January 13, 2014

Before: AMBRO, HARDIMAN, and GREENAWAY, Jr., Circuit Judges

(Opinion filed: January 21, 2014)
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OPINION 

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AMBRO, Circuit Judge

This case involves bullying at a middle school. As with other bullying cases we 

have confronted, we are sympathetic to the plight of the student victims. However, 

without any allegation of action by the School District, the case falls squarely within our 

binding precedent and requires that we affirm the District Court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiff-appellants are three minor children and their parents. The defendantappellees are the Gettysburg Area School District; Larry Redding, the District 

superintendent; and James O’Connor and Steven Litten,1two principals at Gettysburg 

Area Middle School (collectively, the “District”).

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The appellants allege that the three minor-appellants were bullied and injured at 

the Middle School. They claim that although the parent-appellants notified the District

about the bullying, no action was taken to prevent future harassment. The appellants 

assert that the District “sometimes criticized and belittled them to deflect their 

responsibilities to supervise and curtail the misconduct of the minor defendants.”

 

1 As the District Court noted, Steven Litten’s last name is spelled “Litton” in the 

Complaint. We will use the correct spelling of his name.

2 Also named as defendants are Shevelle C., in her own right and as the mother of K.C., a 

minor; K.C., a minor; and Ms. A., in her own right and as the mother of K.A., a minor. 

For some reason, K.A. is not a defendant. K.A. and K.C. are alleged to be the minors that 

bullied the minor-appellants. These defendants did not move to dismiss and are not the 

subject of the current appeal. 
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Appellants’ Br. At 7. As a result of the District’s inaction, the minor-appellants suffered 

additional injuries.

The appellants asserted claims under 42 U.S.C. § 1983 for violations of the First, 

Fourth, and Fourteenth Amendments, as well as a number of state law claims. The 

District Court dismissed the federal claims and this appeal followed.3 We have 

jurisdiction under 28 U.S.C. § 1291.

II. STANDARD OF REVIEW

Our review of a district court’s dismissal under Federal Rule of Civil Procedure 

12(b)(6) is plenary. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 

159, 163 (3d Cir. 2010). “Under Rule 12(b)(6), a motion to dismiss may be granted only 

if, accepting all well-pleaded allegations in the complaint as true and viewing them in the 

light most favorable to the plaintiff, a court finds that plaintiff’s claims lack facial 

plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). 

Although we must accept the allegations in the complaint as true, “we are not compelled 

to accept unsupported conclusions and unwarranted inferences, or a legal conclusion 

couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) 

(internal quotation marks and citations omitted).

III. DISCUSSION

A. First Amendment Retaliation Claim

 

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The appellants have not challenged the District Court’s dismissal of their Fourth 

Amendment claim and have not addressed the state law claims. Therefore, we as well do 

not address them. 
4

To plead a First Amendment retaliation claim, a plaintiff must allege, among other 

things, “retaliatory action sufficient to deter a person of ordinary firmness from 

exercising his constitutional rights. . . .” Thomas v. Independence Twp., 463 F.3d 285, 

296 (3d Cir. 2006) (emphasis added) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 

2003)).4 Allegations of inaction are insufficient to maintain a claim for retaliation. See

Kaucher v. County of Bucks, 455 F.3d 418, 433 n.11 (3d Cir. 2006) (“[F]ailures to act 

cannot form the basis of a valid § 1983 claim.”). In this case, the appellants allege only 

inaction—that the District ignored or rebuffed their requests for assistance. Therefore,

the District Court correctly dismissed the retaliation claims for failure to plead some 

retaliatory action by the District.

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B. Fourteenth Amendment Claims

The appellants contend that the District violated their substantive and procedural 

due process rights under the Fourteenth Amendment. We affirm the dismissal of both 

claims.

The substantive due process claim was properly dismissed. “Generally, the Due 

Process Clause does not impose an affirmative duty upon the state to protect citizens 

 

4 A plaintiff must also allege “constitutionally protected conduct” and “a causal link 

between the constitutionally protected conduct and the retaliatory action.” Thomas, 463 

F.3d at 296. However, because the appellants do not allege any retaliatory action, we 

need not analyze these additional elements. 

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The appellants argue in passing that they should have been granted leave to amend or 

discovery. However, they never sought discovery. As for leave to amend, the District 

Court was correct that amendment would be futile because the District’s inaction was a 

substantive shortcoming that could not be pled around. See Fletcher–Harlee Corp. v. 

Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
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from the acts of private individuals.” Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir. 

2006) (citing DeShaney v. Winnebago Cnty. Dep’t. of Soc. Servs., 489 U.S. 189, 198-200 

(1989)). Here, the appellants do not allege affirmative acts, but only that the District did 

not act to prevent bullying by private individuals. Although there are two exceptions to 

the affirmative act requirement—when there is a “special relationship” between the 

plaintiff and the state, and when there is a “state-created danger”—we recently clarified 

in a substantially similar case that neither exception applies to cases such as this one. See

Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc). 

The District Court was also correct to reject the procedural due process claim. A

complaint asserting a procedural due process claim must allege (1) a deprivation of an 

interest “encompassed within the Fourteenth Amendment’s protection of life, liberty, or 

property;” and (2) that “available procedures did not provide due process of law.” Ass’n 

N.J. Rifle & Pistol Clubs v. Governor of N.J., 707 F.3d 238, 240 (3d Cir. 2013) (internal 

quotation marks and citation omitted). Critically, the deprivation of the protected interest 

must be attributable to the District, not a private actor. See Phila. Police & Fire Ass’n for 

Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 169 (3d Cir. 1989). 

Here, the appellants claim that the bullying children were depriving the minor-appellants 

of liberty and property interests in their education and bodily integrity. However, these 

actions by private individuals, not the District, are insufficient to give rise to a procedural 

due process claim. 

We thus affirm the District Court.