M.S. v. Hamilton Cty. Dep't of Educ.

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0546n.06

No. 17-6241

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

M.S., a minor, by his parent and next friend,
) FILED
Sharonda Covington; DEREK ) STEPP, Nov 01, 2018
Individually and on behalf of all others similarly
) DEBORAH S. HUNT, Clerk
situated; SHARONDA COVINGTON,
)
Individually and on behalf of all others similarly
)
situated, )
ON APPEAL FROM THE
)
UNITED STATES DISTRICT
Plaintiffs-Appellants, )
COURT FOR THE EASTERN
)
DISTRICT OF TENNESSEE
v. )
)
OPINION
HAMILTON COUNTY DEPARTMENT OF )
EDUCATION; DURHAM SCHOOL )
SERVICES, L.P., Individually; BENJAMIN )
COULTER, Individually, )
)
Defendants-Appellees. )

BEFORE: ROGERS and BUSH, Circuit Judges; WATSON, District Judge.*

JOHN K. BUSH, Circuit Judge. Johnthony Walker crashed a school bus while

transporting thirty-seven children from the Woodmore Elementary School in Chattanooga,

Tennessee. Six students died; a number of others were injured. This appeal presents the question

whether an amended class action complaint filed on their behalf, with claims under 42 U.S.C.

§ 1983 and state law, was properly dismissed under Federal Rule of Civil Procedure 12(b)(6). We

must decide whether the pleadings are sufficient for “the court to draw the reasonable inference”

that the bus driver’s employer and the school district are liable under § 1983 for the injuries

*
The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by
designation.
No. 17-6241, M.S. v. Hamilton Cty. Dep’t of Educ.

Plaintiffs sustained as a result of the crash. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We

AFFIRM the district court’s dismissal with respect to Walker’s employer, Durham School

Services, L.P. (“Durham”), but REVERSE with respect to the school district, the Hamilton

County Department of Education (the “District”).1 We also AFFIRM the district court’s denial

of Plaintiffs’ request to further amend the complaint to add allegations and REVERSE the district

court’s denial of their request to amend to correct a scrivener’s error.

I

We recite the relevant facts as alleged in the amended complaint. In 2013, Durham and

the District entered into a contract for Durham to provide busing services to the District. This

contract stated that Durham and the District would cooperate closely in the provision of school

bus routes and would mutually promulgate rules for bus operation. By early November 2016,

Durham and the District had received multiple complaints that Walker, one of Durham’s bus

drivers, drove his school bus in a dangerous fashion. Durham and the District did nothing to

prevent Walker from continuing to drive dangerously or to prevent students from riding on his bus.

In fact, Woodmore Elementary’s principal, who was a District employee, instructed Woodmore

students on a daily basis to board Walker’s bus. On November 21, Walker crashed his bus, which

resulted in six students’ fatalities and injuries to Plaintiff M.S. and several other students, causing

mental and pecuniary harm to M.S.’s parents, Plaintiffs Derek Stepp and Sharonda Covington.

The amended complaint against Durham, the District, and Coulter alleged violations of

42 U.S.C. § 1983 for failure to protect M.S. from a state-created danger and for violating his right

to bodily integrity, as guaranteed by the Fourteenth Amendment to the Constitution of the United

1
We also affirm the district court’s dismissal of the claims against Defendant-Appellee Benjamin Coulter (the
Supervisor of Transportation for the District) because Plaintiffs-Appellants make no argument in their appellate briefs
for reversal of this aspect of the district court’s ruling.

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States, as well as violations of state law. Plaintiffs also alleged a violation of 42 U.S.C. § 1983

(although labeled a violation of § 1985) based on Defendants’ alleged conspiracy to deprive

Plaintiffs of their constitutional rights.

Defendants moved for dismissal under Rule 12(b)(6). Plaintiffs’ opposition both argued

that the amended complaint sufficiently stated claims and requested that, if the district court

disagreed, they be granted leave to file a second amended complaint. Plaintiffs also sought leave

to amend to rectify a scrivener’s error in labeling the alleged conspiracy a violation of § 1985

instead of § 1983.

The district court granted Defendants’ motions to dismiss, holding that Plaintiffs had failed

to allege facts sufficient to show that Durham was a state actor, that Coulter had created the danger

to the students, or that the District had a policy that caused the deprivation of the students’ rights.

The district court also denied Plaintiffs’ request to file a second amended complaint as futile.

Having dismissed the federal claims with prejudice, the district court then declined to exercise

supplemental jurisdiction over the state-law claims, dismissing those claims without prejudice.

Plaintiffs bring three allegations of error in this appeal: first, that the district court erred in

holding that the amended complaint inadequately alleged that Durham was a state actor; second,

that the district court erred in holding that there were insufficient allegations that the District had

a policy that caused the deprivation of the students’ rights; and third, that the district court abused

its discretion in denying Plaintiffs leave to further amend their pleadings.

II

“Whether the district court correctly dismissed the claims pursuant to Fed. R. Civ. P.

12(b)(6) is a question of law subject to de novo review.” Meador v. Cabinet for Human Res.,

902 F.2d 474, 475 (6th Cir. 1990). Construing the complaint in the light most favorable to

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Plaintiffs and accepting all factual allegations as true, this court must determine whether the

complaint states a plausible claim for relief. HDC, LLC v. City of Ann Arbor, 675 F.3d 608, 611

(6th Cir. 2012). A court should not grant a motion to dismiss “when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft, 556 U.S at 678.

We review the denial of a motion to amend de novo when a “judge’s denial was based on

his conclusion that Plaintiffs’ amendments would have been futile.” Chaz Constr., LLC v. Codell,

137 F. App’x 735, 739 (6th Cir. 2005) (citing Dubuc v. Green Oak Twp., 312 F.3d 736, 743 (6th

Cir. 2002)). When a district court denies leave to amend as futile, “the basis for its denial of the

motion is its purely legal conclusion that the proposed amendment ‘could not withstand a Rule

12(b)(6) motion to dismiss.’” Williams v. City of Cleveland, 771 F.3d 945, 949 (6th Cir. 2014)

(quoting Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010)). If

the district court denied leave to amend exclusively on the grounds of futility, the reviewing court

must answer “whether the district judge correctly decided that the proposed amendments would

have been futile.” Chaz Constr., 137 F. App’x at 739.

A

We first address whether the district court properly dismissed the claims against Durham,

the bus company. Section 1983 creates liability for private entities only when they act “under

color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District

of Columbia . . . .” To state a claim against Durham, therefore, Plaintiffs must allege that Durham,

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despite being a private entity, was acting under color of law when it failed to prevent Walker from

harming the schoolchildren. See Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

There are four tests generally applied to determine whether a private actor can be held

liable for acting under color of law in § 1983 claims. See Marie v. Am. Red Cross, 771 F.3d 344,

362 (6th Cir. 2014). Plaintiffs argue that two tests are relevant here: the “symbiotic relationship

or nexus test” and the “entwinement test.”

Under the symbiotic relationship or nexus test, “the action of a private party constitutes

state action where ‘there is a sufficiently close nexus between the state and the challenged action

of the regulated entity so that the action of the latter may be fairly treated as that of the state itself.’”

Wilcher v. City of Akron, 498 F.3d 516, 520 (6th Cir. 2007) (quoting Wolotsky v. Huhn, 960 F.2d

1331, 1335 (6th Cir. 1992)). “[T]here is no ‘readily applicable formula’ for finding such a close

nexus; divining such a close relationship can only be accomplished ‘in the framework of the

peculiar facts or circumstances present.’” Id. (quoting Burton v. Wilmington Parking Auth., 365

U.S. 715, 726 (1961)).

Similarly, “the crucial inquiry under the entwinement test is whether the nominally private

character of the private entity is overborne by the pervasive entwinement of public institutions and

public officials in its composition and workings [such that] there is no substantial reason to claim

unfairness in applying constitutional standards to it.” Marie, 771 F.3d at 364 (citations and internal

quotation marks omitted).

Although there is no litmus to determine what actions are enough to constitute a sufficient

nexus or entwinement, courts are clear about what actions are not enough for a private entity to be

considered a state actor. See Lansing v. City of Memphis, 202 F.3d 821, 830 (6th Cir. 2000). For

example, receiving extensive government funding is not enough, Rendell-Baker, 457 U.S. at 840;

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“mere cooperation” between the entities or “an economic benefit” conferred on a city by a private

entity is not enough, Lansing, 202 F.3d at 831; regular partnership in public service activities is

not enough, Marie, 771 F.3d at 363; “extensive state regulation” of the private entity is not enough,

American Manufacturers Mutual Insurance Co. v. Sullivan, 526 U.S. 40, 52 (1999); and the

“minority presence of public officials on the board of a private entity” is not enough, Lansing,

202 F.3d at 831.

It also is not enough under either the nexus or the entwinement theory that the parties have

a contractual relationship, even when that contract subjects the private actor to an “extensive and

detailed” set of requirements. Wolotsky, 960 F.2d at 1336. Instead, Plaintiffs must show that the

state “played a role in the decision” made by the private actor that led to the deprivation of

Plaintiffs’ rights, either by showing, for example, that the contract necessitated the private actor’s

decision or that state actors were involved in the decision. Id.

The district court was correct in holding that the amended complaint does not allege either

(1) that the contract between Durham and the District played a role in Durham’s decision not to

discipline or terminate Walker or (2) that any District employee played a role in that decision.

Plaintiffs do not allege that this contract generally, or any specific clause in the contract,

required Durham to employ dangerous drivers or in any way impeded Durham’s ability to

discipline or terminate dangerous drivers. Indeed, the contract, appended to Plaintiffs’ response

to the motion to dismiss, provides in pertinent part:

CONTRACTOR’S PERSONNEL: CONTRACTOR shall be solely responsible for
hiring sufficient personnel to perform CONTRACTOR duties under this
Agreement, provided however, in no event shall CONTRACTOR employ fewer
personnel than the CONTRACTOR purposed in its PROPOSAL. Such personnel
shall be CONTRACTOR employees and, in no event, shall be the employees of the
DISTRICT. CONTRACTOR shall be solely responsible for providing such
personnel with appropriate supervision, training, and direction in the personnel job
duties.

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In the event the DISTRICT has any questions or concerns regarding the
performance or any personnel employed by the CONTRACTOR, the
CONTRACTOR may take whatever action it deems necessary and appropriate to
address the DISTRICT concern.

(R. 40-1 at 3.)

Unable to rely on the contract for their argument, Plaintiffs nonetheless assert that District

personnel had “control over the supervision and discipline of Durham’s drivers” and that the

District was therefore sufficiently entwined with Durham’s decision not to train or supervise

Walker adequately. Plaintiffs cite a policy (the “Transportation Policy”), also appended to

Plaintiffs’ response to the motion to dismiss, providing that a “Transportation Supervisor,” a

District employee, will have disciplinary power over “[b]us drivers for the Hamilton County Board

of Education.” (R. 40-2 at 5.)

The district court held that this policy applies to bus drivers employed by the Hamilton

County Board of Education, not to Durham employees, citing language in the Transportation

Policy indicating that it applies to District personnel, as well as language in the contractual

stipulation that bus drivers such as Walker “shall be CONTRACTOR employees and, in no event,

shall be the employees of the DISTRICT.”

The district court’s determination is supported by the fact that, if the Transportation Policy

applied to Durham employees, it would contradict the contract between Durham and the District,

which provides that Durham “may take whatever action it deems necessary and appropriate” to

ameliorate issues that the District might have with Durham bus drivers, including, presumably,

actions other than those the Transportation Supervisor might prefer.

But whether the Transportation Policy applied to Walker is beside the point. Even

assuming that the District had the power to discipline Walker and that it failed to exercise that

power, those facts would be insufficient to show that the District “compelled or even influenced”
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Durham’s decision not to train or discipline Walker. Rendell-Baker, 457 U.S. at 840. The nexus

test asks not whether the state actor (the District) was entwined generally with the private entity

(Durham), but whether the District was entwined with Durham’s decision regarding Walker

specifically.

The amended complaint makes no allegation that any District employee pressured Durham

not to train or supervise Walker, assured Durham it need not train or supervise Walker because the

District would assume that responsibility, or otherwise had any impact on Durham’s decision not

to train or supervise Walker. Instead, the pleadings allege only that, independent of Durham’s

failure, the District also failed to train or supervise Walker. Also absent are allegations that the

District was involved in Durham’s day-to-day management or played a role in its personnel

decisions, particularly its alleged failure to train or discipline Walker. This has been a key factor

in two other school bus cases decided by our sister circuits. See, e.g., Santiago v. Puerto Rico,

655 F.3d 61, 71 (1st Cir. 2011) (finding that the bus company was not a state actor when it

allegedly failed to properly screen and train its employee because there was “no showing that the

[governmental entity] exercised coercive power over or significantly encouraged” the bus

company’s alleged failures); Black by Black v. Ind. Area Sch. Dist., 985 F.2d 707, 711 (3d Cir.

1993) (finding no symbiotic relationship between the state and the bus company where the

company and its employees “were not performing a function that has been traditionally the

exclusive prerogative of the state and there was no state regulation that compelled or even

influenced the conduct” at issue (internal quotation marks omitted)).

Even though Plaintiffs allege that the District and Durham worked together to make certain

decisions, such as establishing bus schedules and routes, that is not enough to show that Durham’s

will was so overborne as to render its actions those of the state. See Marie, 771 F.3d at 363–64.

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Rather, at most it shows that they were working in accordance with the contract—a contract that

clearly delineated that personnel decisions were to be made by Durham, not the District. Without

allegations of the District’s entwinement with Durham’s personnel decisions with respect to

Walker, Plaintiffs have failed to state a § 1983 claim against Durham. This holding, of course,

says nothing about whether recovery may be available against Durham under state law.

B

We now turn to whether the district court properly held that the amended complaint

insufficiently pleaded a District policy that deprived the students of their constitutional rights.

Under Monell v. Department of Social Services, 436 U.S. 658 (1978), a school district can be found

liable under § 1983 for the unconstitutional acts of its official or employee, even when the official’s

act did not arise from an explicit policy, if a plaintiff shows “(1) the existence of a clear and

persistent pattern of [unconstitutional activity] by school employees; (2) notice or constructive

notice on the part of the School Board; (3) the School Board’s tacit approval of the unconstitutional

conduct, such that their deliberate indifference in their failure to act can be said to amount to an

official policy of inaction; and (4) that the School Board’s custom was the moving force or direct

causal link in the constitutional deprivation.” Doe v. Claiborne Cty., 103 F.3d 495, 508 (6th Cir.

1996).

The dispute between the parties centers around the first requirement—that a school

employee engaged in a clear and persistent pattern of unconstitutional activity. The District argues

that Plaintiffs have failed to allege that a District employee engaged in an unconstitutional activity

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and that, even if they have so alleged, they have failed to allege that the employee had a clear and

persistent pattern of doing so. Neither argument is availing at this stage of the litigation.

Plaintiffs’ theory of liability is that Woodmore’s principal failed to protect the students

from a danger that the principal created, in violation of the Due Process Clause of the Fourteenth

Amendment. “Under the state-created danger doctrine, a governmental actor can be held

responsible for an injury committed by a private person if (1) an affirmative act by the

governmental actor either created or increased the risk that the plaintiff would be exposed to the

injurious conduct of the private person; (2) the governmental actor’s act especially endangered the

plaintiff or a small class of which the plaintiff was a member; and (3) the governmental actor had

the requisite degree of culpability.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d

529, 534 (6th Cir. 2008) (citation and internal quotation marks omitted).

Plaintiffs have alleged that (1) the principal committed affirmative acts by instructing the

schoolchildren to board Walker’s bus; (2) this direction endangered the students because of

Walker’s dangerous driving; (3) this danger was specific to those students; and (4) the principal

was sufficiently culpable because she knew that Walker’s driving was dangerous. The District

contests each point other than the third, which we address in turn.

The District first argues that the principal’s directives to board the bus were not affirmative

acts because she was merely following the District’s policy of assisting students in boarding buses,

and her instruction to the Woodmore pupils was therefore an act of omission—failing to deviate

from the District’s policy. This circuit has never held that an affirmative action is not affirmative

because it was taken in conformance with a policy, and for good reason. To so hold would vitiate

one way of establishing Monell liability—by “show[ing] that the particular injury was incurred

because of the execution of [a] policy.” Doe, 103 F.3d at 508 (quoting Garner v. Memphis Police

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No. 17-6241, M.S. v. Hamilton Cty. Dep’t of Educ.

Dep’t, 8 F.3d 358, 364 (6th Cir. 1993)). Even if the principal was following the District’s policy,

the principal was still allegedly assisting students onto a bus that she knew was dangerous.

The District next argues that the principal’s instructing the schoolchildren to board

Walker’s bus at the end of the school day did not increase the risk to them, but instead merely

returned the students to a risky status quo to which they had voluntarily subjected themselves when

boarding Walker’s bus on the way to school. In support, the District cites two cases. In DeShaney

v. Winnebago County Department of Social Services, 489 U.S. 189, 191–93 (1989), a municipality

took custody of an abused child, allowed custody of the child to revert to the child’s abusive father,

and repeatedly failed to effectively monitor the child’s safety thereafter. The Supreme Court held

that the municipality was not liable, stating that although “the State may have been aware of the

dangers that [the child] faced in the free world, it played no part in their creation, nor did it do

anything to render him any more vulnerable to them.” Id. at 201. But DeShaney does not control

here, as it was brought under a theory that the municipality had a “special relationship” with the

child because it had proclaimed its intention to protect him, not that it had created the danger: the

plaintiffs in DeShaney “concede[d] the State played no part in creating” the danger to which the

child was subjected. Id. at 197. Here, whether the principal’s act increased the danger to the

students is precisely what is at issue.

The District also cites Bukowski v. City of Akron, 326 F.3d 702, 709 (6th Cir. 2003), which

did involve a state-created danger claim. In Bukowski, police officers removed an abused woman

from her abuser’s house, investigated the situation, and later, at her request, returned her to the

home, where the abuse continued. Id. at 705–06. This court held that the officers were not liable

because “the act of returning someone to the same dangers that existed status quo ante does not

satisfy the state-action requirement” of the state-created danger cause of action. Id. at 709. But

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Bukowski is also inapposite here. In Bukowski, the “officials were accommodating [the victim’s]

own wishes” when they drove her to her abuser’s home, and they “did not have any knowledge of

the dangers facing her.” Id. at 709. In contrast, Plaintiffs have alleged that the principal instructed

her pupils to board Walker’s bus and that the principal was fully aware of the dangers they faced

on the road ahead.

Finally, the District argues that the principal did not unconstitutionally fail to protect the

students from dangers she had created because her actions did not “shock[] the conscience,” as

required to show that she acted with the requisite degree of culpability. See Hunt, 542 F.3d at 535

(quoting Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). Although this court has

identified several factors to consider when determining whether a state actor’s actions shock the

conscience, “our concern with preserving the constitutional proportions of substantive due process

demands an exact analysis of circumstances” before making that determination. Lewis, 523 U.S.

at 850. And although there are doubtlessly some cases in which a court could determine that a

state actor’s actions did not shock the conscience at the motion-to-dismiss stage, this is not that

case. Here, the record does not contain the precise number or content of the warnings received by

the principal, as the amended complaint contains only two examples from among an unknown

number of complaints that the principal received. Because it is conceivable that the principal

received complaints such that it would be conscience-shocking for her to have instructed the

schoolchildren to board Walker’s bus after their receipt, it would be inappropriate to grant a motion

to dismiss on this ground.

The district court did not rule on the ground that the principal did not create a danger, but

on the distinct ground that, as the District also argues, there can be no “clear and persistent pattern

of abuse where there are only two specified complaints.” (R. 52 at 21.) This holding mistakes the

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locus of unconstitutional activity: it is the principal, not Walker, who is alleged to have deprived

Plaintiffs of their rights. And Plaintiffs allege that the principal deprived the students of their rights

every school-day afternoon between early November and November 21, or approximately fifteen

times. Neither the district court nor the District cites any case suggesting that this many instances

of unconstitutional activity cannot amount to a pattern of unconstitutional activity, and we are

unaware of any so holding. Accordingly, it was error to dismiss the Monell claim at this stage.

It should also be noted, however, that even if Plaintiffs ultimately prove the principal

engaged in unconstitutional activity, this showing does not necessarily entail that the District is

subject to Monell liability. To recap, they must also show that there was a clear and persistent

pattern of that unconstitutional activity, that the District knew about that pattern, that the District

deliberately ignored that pattern, and that the District’s ignoring the pattern of unconstitutional

activity by the principal had a direct causal link to the deprivation of the students’ rights. Doe,

103 F.3d at 508.

The pleadings allege that the District had knowledge of the principal’s unconstitutional

actions during the entire period in which they occurred, that the District took no action either to

prevent the principal from instructing the students to board the bus or to make the bus safer, and

that the District’s failure to act in response to this knowledge caused the deprivation of Plaintiffs’

constitutional rights. Whether these allegations will be borne out by evidence must wait for a later

stage in this litigation, which should not have been terminated at the motion-to-dismiss stage.

III

Finally, Plaintiffs asked the district court, in the event it were to dismiss the amended

complaint, to allow them to further amend their pleadings, both to fix a scrivener’s error and to

add allegations. They made this request, however, only in their response to Defendants’ motions

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to dismiss, and they did not indicate the nature of the allegations that they would add or attach a

copy of the proposed second amended complaint. The district court denied this request as futile,

and we review this denial de novo. Chaz Constr., 137 F. App’x at 739.

Because the scrivener’s error related to a claim against the District, and because, as

discussed, the claims against the District should not be dismissed for failure to state a claim, the

request to amend the complaint to fix the scrivener’s error is not moot, and the district court

therefore erred in denying Plaintiffs’ request.

Because the claims against the District should not have been dismissed, the request to add

allegations as to the District’s conduct is moot, as the amended complaint already is sufficient to

survive the motion to dismiss.

Because Plaintiffs have not provided sufficient allegations against Durham to allow the

claims against Durham to proceed, the request to supplement those allegations is not moot, and we

must therefore determine whether the district court abused its discretion in denying leave to amend.

See Beydoun v. Sessions, 871 F.3d 459, 469–70 (6th Cir. 2017) (“Indeed, a bare request in an

opposition to a motion to dismiss—without any indication of the particular grounds on which

amendment is sought—does not constitute a motion within the contemplation of Rule 15(a) . . . .

Thus, in these situations, we have found that [t]here was no motion to deny, and, [a]ccordingly,

we . . . review the district court’s actions for abuse of discretion.” (alterations in original) (citations

and internal quotation marks omitted)).

We cannot conclude that the district court abused its discretion in denying Plaintiffs leave

to add additional allegations as to Durham. Plaintiffs provided neither the district court nor this

court any indication as to the nature of the allegations that they wish to include or how they would

cure the deficiencies in the amended complaint and, “[g]iven the absence of any indication that

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[Plaintiffs’] amended complaint would survive a motion to dismiss, we conclude that the district

court did not abuse its discretion in denying [Plaintiffs’] unsupported motion.” Id. at 470.

IV

For the above reasons, we AFFIRM the district court’s grant of Durham’s motion to

dismiss for failure to state a claim, REVERSE the district court’s grant of the District’s motion to

dismiss for failure to state a claim, AFFIRM the district court’s denial of Plaintiffs’ request to

further amend the complaint to add allegations, and REVERSE the district court’s denial of

Plaintiffs’ request to amend the pleadings to correct a scrivener’s error.

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