United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 19, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No.: 02-41166
_____________________
HOWARD SCANLAN; DENISE SCANLAN; and LAUREN SCANLAN;
Plaintiffs/Appellants;
versus
TEXAS A&M UNIVERSITY; ET AL,
Defendant;
TEXAS A&M UNIVERSITY;
J. MALON SOUTHERLAND, in his individual capacity;
RUSSELL THOMPSON, in his individual capacity,
RAY BOWEN, in his individual capacity;
WILLIAM L. KIBLER, in his individual capacity; and
JOHN J. KOLDUS, III, in his individual capacity,
Defendants/Appellees.
_____________________
No.: 02-41173
_____________________
SEAN BREEN, as Administrator of the Estate of Christopher Breen;
CHRISTOPHER BREEN; JOHN E. BREEN; MARIAN K. BREEN;
Plaintiffs/Appellants;
versus
TEXAS A&M UNIVERSITY;
J. MALON SOUTHERLAND, in his individual capacity;
RUSSELL THOMPSON, in his individual capacity;
RAY BOWEN, in his individual capacity;
Defendants/Appellees.
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_____________________
No.: 02-41187
_____________________
JAMES KIMMEL, as Representative of the Estate of Lucas Kimmel;
JAMES KIMMEL; WALIETA KIMMEL;
Plaintiffs/Appellants;
versus
TEXAS A&M UNIVERSITY; ET AL,
Defendants;
TEXAS A&M UNIVERSITY;
J. MALON SOUTHERLAND, in his individual capacity;
RUSSELL J. THOMPSON, in his individual capacity;
RAY BOWEN, in his individual capacity;
WILLIAM L. KIBLER, in his individual capacity; and
JOHN J. KOLDUS, in his individual capacity;
Defendants/Appellees.
______________________
No.: 02-41204
_____________________
JACQUELYNN KAY SELF, Individually and
as Administratrix of the Estate of Jerry Don Self, Deceased;
KATHY MCCLAIN ESCAMILLA, Individually and as Administratrix of
the Estate of Bryan A. McClain, Deceased; PHIL R. MCCLAIN;
ANDREA HEARD, Individually and as Administratrix of the Estate of
Christopher Lee Heard, Deceased; LESLIE G. HEARD;
ANTHONY POWELL, Individually and as Administrator of the Estate
of Chad D. Powell, Deceased; BEVERLY JILL POWELL; MATTHEW ROBINS;
DOMINIC BRAUS; and NANCY BRAUS;
Plaintiffs/Appellants,
versus
TEXAS A&M UNIVERSITY; ET AL,
Defendants;
TEXAS A&M UNIVERSITY; RAY BOWEN; J. MALON SOUTHERLAND;
WILLIAM L. KIBLER; RUSSELL W. THOMPSON; JOHN J. KOLDUS, III;
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M.T. HOPGOOD, JR., Major General; DONALD J. JOHNSON;
ZACK COAPLAND; KEVIN JACKSON; JAMES R. REYNOLDS;
ROBERT HARRY STITELER, JR.; and MICHAEL DAVID KRENZ;
Defendants/Appellees.
____________________
No.: 02-41222
_____________________
JOHN ANDREW COMSTOCK and DIXIE ANN ZINNEKER;
Plaintiffs/Appellants;
versus
TEXAS A&M UNIVERSITY; ET AL,
Defendants,
TEXAS A&M UNIVERSITY;
J. MALON SOUTHERLAND, in his individual capacity;
RUSSELL THOMPSON, in his individual capacity;
RAY BOWEN, in his individual capacity;
Defendants/Appellees.
_____________________
No.: 02-41244
_____________________
BILL DAVIS,
Plaintiff/Appellant;
versus
TEXAS A&M UNIVERSITY; ET AL,
Defendants,
TEXAS A&M UNIVERSITY;
J. MALON SOUTHERLAND, in his individual capacity;
RUSSELL THOMPSON, in his individual capacity;
RAY BOWEN, in his individual capacity;
WILLIAM L. KIBLER, in his individual capacity; and
JOHN J. KOLDUS, III, in his individual capacity;
Defendants/Appellees.
____________________________________________
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Appeals from the United States District Court
for the Southern District of Texas
____________________________________________
Before WIENER, CLEMENT and PRADO, Circuit Judges.
PRADO, Circuit Judge.
The above numbered and styled appeals arise from six
lawsuits filed in the Southern District of Texas by, and on
behalf of, those injured and killed during the Texas A&M
University bonfire disaster that occurred on November 18, 1999.
The district court dismissed all of the plaintiffs’ claims and
entered a final judgment in each lawsuit. The plaintiffs
appealed to challenge the dismissal orders. After considering
the parties’ arguments on appeal, this Court reverses the
district court’s judgments.
Background Facts
On November 18, 1999, the Texas A&M University bonfire stack
collapsed, killing 12 students and injuring another 27. After
the accident, the president of Texas A&M University (the
University) convened a special commission to investigate the
collapse. The investigating commission documented its findings
and conclusions in the Final Report of the Special Commission on
the 1999 Texas A&M Bonfire (Final Report). Subsequently, the
appellants filed six lawsuits. In the lawsuits, the plaintiffs
alleged section 1983 claims under the state-created danger theory
4
and various state law claims against the University and various
University officials (the University Officials) whom the
plaintiffs hold responsible for their injuries.
From the outset, the district court limited discovery to the
issue of qualified immunity. The district court allowed five
weeks to conduct discovery on that issue and set the deadline for
dispositive motions four weeks later. Eight weeks after the
deadline for dispositive motions, the district court issued the
orders challenged in these appeals, dismissing all of the
plaintiffs’ claims. The court issued the same order in each
case.
The district court’s orders were quite clear. The court
first dismissed the plaintiffs’ claims against the University as
a state entity on Eleventh Amendment immunity grounds. No
plaintiff appeals that action.
Next, the district court adopted the Final Report and
determined the actions of the University Officials did not, as a
matter of law, rise to the level of deliberate indifference.
Based on that determination, the district court dismissed the
plaintiffs’ section 1983 claims against the University Officials
for failure to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure. Each plaintiff challenges that action.
The district court then declined to exercise supplemental
jurisdiction over the plaintiffs’ state law claims and dismissed
those claims without prejudice. No plaintiff appeals that
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action.
The Plaintiffs’ Issues on Appeal
The plaintiffs’ issues on appeal can be summarized as
follows: (1) Whether the district court erred by relying on
documents outside the complaints to determine the plaintiffs
failed to state a claim, and (2) whether the district court erred
by dismissing the plaintiffs’ claims against the University
Officials for failure to state a claim. This Court reviews the
district court's dismissal under Rule 12(b)(6) de novo, taking
the allegations of the complaint to be true. See Vander Zee v.
Reno, 73 F.3d 1365, 1368 (5th Cir. 1996); Eason v. Holt, 73 F.3d
600, 601 (5th Cir. 1996).
Rule 12(b)(6)
Rule 12(b)(6) authorizes dismissal of a complaint for
“failure to state a claim upon which relief can be granted.”
FED. R. CIV. P. 12(b)(6). The district court can grant a motion
to dismiss only if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim that would entitle
him to relief. See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d
521, 524 (5th Cir. 1994). Accordingly, this Court has
consistently disfavored dismissal under Rule 12(b)(6). See Hall
v. Thomas,190 F.3d 693, 696 (5th Cir. 1999); Mahone v. Addicks
Utility Dist. of Harris County, 836 F.2d 921, 926 (5th Cir.
1988). In determining whether to grant a motion to dismiss, the
6
district court must not go outside the pleadings and must accept
all well-pleaded facts as true, viewing those facts most
favorably to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232,
236 (1974); Khurana v. Innovative Health Care Sys., Inc., 130
F.3d 143, 147 (5th Cir. 1997); Capital Parks, Inc. v.
Southeastern Adver. & Sales Sys., Inc. 30 F.3d 627, 629 (5th Cir.
1994).
Although the district court may not go outside the
complaint, this Court has recognized one limited exception. In
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000), this Court approved the district court’s
consideration of documents attached to a motion to dismiss. In
that case, the district court relied on an agreement and an
assessment about a potential merger between two companies in
determining the contract was not intended to benefit the
plaintiffs/stock option holders. See Collins v. Morgan Stanley
Dean Witter, 60 F. Supp.2d 614 (S.D. Tex. 1999). The fact that
the plaintiffs did not object to, or appeal, the district court’s
consideration of those documents was central to this Court’s
approval of that practice. See Collins, 224 F.3d at 498-99 (5th
Cir. 2000). In approving the district court’s consideration of
the documents attached to the motion to dismiss, this Court
restricted such consideration to documents that are referred to
in the plaintiff’s complaint and are central to the plaintiff’s
7
claim. Id.
Whether the District Court Erred By Relying on the Final Report
The district court relied on Collins as its authority to
consider the Final Report in dismissing the plaintiffs’ claims.
Like Collins, the plaintiffs in the instant case referred to the
Final Report in their complaints. But unlike Collins, the
University Officials did not attach the Final Report to their
motion to dismiss. Instead, the University Officials quoted
portions of the Final Report in their motions and provided an
Internet cite. As a result, the district court had to seek out
the report in order to consider it in making the factual
determinations that served as the basis of the court’s conclusion
about deliberate indifference.
The University Officials maintain on appeal that because
they provided the Internet citation for the report, and because
the report is appropriate for judicial notice under Rule 201 of
the Federal Rules of Evidence, the plaintiffs had sufficient
notice of the document so that it was not necessary for the
University Officials to attach it to their motion to invoke the
Collins exception. The district court’s order, however, does not
indicate the court took judicial notice of the report. Even if
the district court had taken judicial notice of the report, that
action would have been improper because “[a] judicially noticed
fact must be one not subject to reasonable dispute in that it is
8
either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.” FED. R. EVID. 201(b). The Final
Report cannot be characterized as generally known within the
Southern District of Texas or capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned. Instead, the Final Report is
essentially a defendant-created report that focuses on the causes
of the bonfire collapse and thanks at least one of the University
Officials for supporting the special commission’s efforts to
investigate the disaster.
In addition to the Final Report not being attached to the
motion, the plaintiffs did not accept the Final Report as true in
district court, and complain about the district court’s
consideration of the Final Report on appeal. Notably, the
Scanlan plaintiffs, the Breen plaintiffs, the Kimmel plaintiffs
and Plaintiff Bill Davis objected to the Court's reliance on
Collins in their response to the defendants' motion for summary
judgment. These plaintiffs distinguished Collins from their case
stating,
Collins is unlike the present case in many respects:
(1) the Commission Report was not attached to the
Motion to Dismiss; (2) the Commission Report refers to
, incorporates and includes numerous other documents
that have not been presented to the Court or referenced
by Plaintiffs; (3) the Commission Report, while
9
insightful, is not central to the Plaintiffs' claims;
and (4) the other documents contained on the website
referenced in Defendants' Motion are not even
mentioned by Plaintiffs in their complaint.
Although the plaintiffs rely on the Final Report in their
complaints, certainly the report alone is not central to their
claims. Indeed, it is much more central to the University
Officials’ defenses. The plaintiffs rely on substantial, other
evidence to support their claims.1 Consequently, the district
court’s first error was going outside the plaintiffs’ complaints
and considering the Final Report. Even if the Final Report fell
under the Collins exception, the district court failed to
construe the plaintiffs’ factual allegations in the light most
favorable to the plaintiffs.
Construing the Allegations in the Plaintiffs’ Favor
Although this Court has never explicitly adopted the state-
created danger theory, the Court set out the elements of a state-
created danger cause of action in Johnson v. Dallas Independent
School District, 38 F.3d 198 (5th Cir. 1994). In Johnson, the
Court explained that a plaintiff must show the defendants used
their authority to create a dangerous environment for the
plaintiff and that the defendants acted with deliberate
1
Although the Self plaintiffs and Comstock plaintiffs did
not specifically object to the Collins exception, those
plaintiffs presented substantial summary judgment evidence that
placed the district court on notice that they were relying on
much more than the Final Report.
10
indifference to the plight of the plaintiff. See Johnson, 38
F.3d at 201. Later, the Court explained what is required to
establish deliberate indifference. In Piotrowski v. City of
Houston, the Court explained that to establish deliberate
indifference, the plaintiff must show the “environment created by
the state actors must be dangerous; they must know it is
dangerous; and . . . they must have used their authority to
create an opportunity that would not otherwise have existed for
the third party's crime to occur.” Piotrowski v. City of
Houston, 237 F.3d 567, 585 (5th Cir. 2001)(quoting Johnson v.
Dallas Indep. Sch. Dist.). Even a cursory review of the
complaints shows the plaintiffs pleaded facts to establish
deliberate indifference.
The plaintiffs filed a very similar complaint in each of the
underlying lawsuits. In the complaints, the plaintiffs discussed
how the bonfire grew over the years from a pile of burning trash
to a structure weighing over 3 million pounds. The plaintiffs
asserted that the defendants were well aware of the dangers posed
by the construction of the bonfire stack and that it had been
characterized by one of the University Officials as the “most
serious risk management activity at the University.” The
plaintiffs further asserted that:
The Defendants however, did not use their control to
see that the Bonfire stack was built in a safe manner.
Instead, they allowed the Bonfire to grow into a
massive, complex and dangerous structure. The
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Defendants, through their action and inaction, created
a terrible peril that clearly could not, and should
not, have been designated and built solely by students.
The plaintiffs claimed that the University Officials “created
this dangerous condition. They knew it was dangerous. Despite
that, they like ostriches, put their heads in the sand and
pretended the peril did not exist.”
The plaintiffs explained that the defendant had a vested
interest in keeping their heads in the sand and not exercising
supervision over the bonfire because they “used the Bonfire
experience and tradition as a huge marketing tool to lure
prospective students to A&M as well as to secure millions of
dollars in donations from alumni.” The plaintiffs went on to
claim that the University Officials “actively encouraged and
enticed students and alumni to work on the Bonfire stack while
they turned a blind eye to the peril.”
In stating their section 1983 claims, the plaintiffs
included the language “deliberate indifference” to describe a
particular University Official’s conduct. Although the
plaintiffs relied on the Final Report for their characterization
of the danger posed by the bonfire, the introductory paragraph of
five of the complaints makes it clear that the plaintiffs rely on
more than the Final Report. In that paragraph, the plaintiffs
allege that “despite clear and overwhelming evidence of their
culpability, including, but not limited to, the independent
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Bonfire Commission’s (“Commission”) Report, the Defendants have
failed to take or accept any responsibility whatsoever.”(emphasis
added).
If these allegations were construed in the light most
favorable to the plaintiff, the district court should have
determined the plaintiffs had pleaded sufficient factual
allegations to show the bonfire construction environment was
dangerous, the University Officials knew it was dangerous, and
the University Officials used their authority to create an
opportunity for the resulting harm to occur. As a result, the
district court should have concluded that the plaintiffs stated a
section 1983 claim under the state-created danger theory.
If the district court was going to consider the Final
Report, the court should have converted the motion to dismiss to
a motion for summary judgment, given the parties notice, and then
considered all of the evidence presented.2 See FED. R. CIV. P.
2
Apparently, most of the plaintiffs saw the hand-writing on
the wall. In their responses to the defendants' motions to
dismiss, the Scanlan plaintiffs, the Breen plaintiffs, the Kimmel
plaintiffs, and Plaintiff Bill Davis objected to the defendants'
reliance on the Final Report. In particular, these plaintiffs
asserted that because the defendants were relying on facts and
documents not contained within the pleadings, the Court must
convert the motion to dismiss to a motion for summary judgment,
and asserted that they were entitled to discover evidence central
to their claims before the Court ruled on the motion to dismiss.
Although the Self plaintiffs and the Comstock plaintiffs did not
make this particular objection, they presented substantial
summary judgment evidence that placed the district court on
notice that plaintiffs were relying on much more than the Final
Report.
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12(b)(6). Had the district court done that, the court would have
been faced with the questions of fact the evidence presents.
Indeed, the introductory paragraphs of five complaints clearly
indicate the plaintiffs are relying on more than the Final Report
as evidence for their claims.
By simply adopting the Final Report as the basis for
determining the University Officials did not act with deliberate
indifference, the district court deferred to a defendant-created
commission rather than presenting the questions of material fact
to a trier of fact. Whether deliberately delegating the
construction of the bonfire stack to students the University
Officials allegedly knew were not qualified to handle such a
dangerous project, and whether deliberately providing no
supervision to students in building the bonfire even though they
knew the students were not qualified to build the stack,
constituted deliberate indifference presents fundamental
questions of material fact. Oddly, the district court
acknowledged in a footnote that the existence of deliberate
indifference is often a factual determination, but stated
because the Final Report affirmatively discloses that
the University Officials in this case lacked the
requisite culpability with respect to the alleged
violation of the Bonfire victims’ constitutional
rights, it is not only appropriate, but mandatory in
this instance to conclude that the University Officials
failed to act with deliberate indifference, as a matter
of law.
Although the district court stated in its orders that “the
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Parties have accepted the Final Report,” most of the plaintiffs
objected to the district court’s reliance on the Final Report in
their responses to the defendants' motions for summary judgment.
In particular, the Scanlan plaintiffs, the Breen plaintiffs, the
Kimmel plaintiffs, the Self plaintiffs, and Plaintiff Bill Davis
complained:
The Defendants assert that the Plaintiffs have accepted
the Commission's final [sic] Report and findings.
(State's Brief, p. 2.) That statement is untrue and
the Defendants have cited no support for that position.
The Plaintiffs, however, are entitled to rely on
portions of the Report as admissions by the Defendants
as it is essentially an A&M report and has been adopted
by the Defendants.
Certainly, reasonable minds could differ about the Final Report’s
conclusions about the University Officials’ roles in the collapse
of the bonfire stack. If all of the summary judgment evidence
presents genuine issues of material fact, those roles should be
decided by a trier of fact, not the defendants themselves.
Consequently, the district court erred because it went outside
the complaints and did not construe the plaintiffs’ allegations
in favor of the plaintiffs.
Conclusion
Because the district court erred in dismissing the
plaintiffs’ claims against the University Officials, the Court
REVERSES the district court’s judgments and REMANDS the cases to
the district court for further proceedings consistent with this
opinion.
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REVERSED and REMANDED.
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