NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 18-1980
______________
K. W., A minor, by and through his parent and guardian Delores White;
DELORES WHITE, in her own right;
WILLIAM A. LOVE, Esquire, as administrator of the Estate of Sheena White, Deceased,
Appellants
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY;
RONNIE MCGILL; PASQUALE T. DEON, SR.; JOSEPH M. CASEY;
SCOTT SAUER; MICHAEL R. LIBERI; NEW FLYER INDUSTRIES CANADA ULC;
NEW FLYER OF AMERICA INC; ROSCO INC
______________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2-16-cv-05578)
Chief District Judge: Hon. Juan R. Sanchez
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
January 15, 2019
______________
Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges.
(Filed: January 17, 2019)
______________
OPINION*
______________
*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Sheena White and her son K.W. were hit by a Southeastern Pennsylvania
Transportation Authority (“SEPTA”) bus. K.W. (by and through Delores White),
Delores White, and William Love (administrator of Sheena White’s estate) (collectively,
“Plaintiffs”) allege that by placing a defective bus into service on the date of the accident,
SEPTA and its employees produced a state-created danger that violated their due process
rights. Because the District Court correctly dismissed this claim, we will affirm.
I1
Sheena and K.W. were crossing the street when a SEPTA bus made a left turn and
struck them. Sheena was pronounced dead at the scene and K.W. suffered serious
injuries. SEPTA purchased the bus involved in the accident from Defendant New Flyer
of America, and it was equipped with a mirror system made by Defendant Rosco, Inc.
Plaintiffs sued SEPTA, the driver of the SEPTA bus, and various SEPTA
managers and executives (collectively, the “SEPTA Defendants”); New Flyer of America
and the company’s Canadian parent; and Rosco, Inc., in the Pennsylvania Court of
Common Pleas. With respect to the SEPTA Defendants, Plaintiffs allege that the size,
shape, configuration, and placement of the Rosco driver-side mirror on the New Flyer
buses created an unreasonable obstruction of the driver’s view resulting in a high
1
“Because this is an appeal from [an order] granting . . . a motion to dismiss, we
take the following factual background directly from the complaint and accept as true all
facts set forth therein, drawing all reasonable inferences from such allegations in favor of
the Appellant[s].” Fair Hous. Rights Ctr. in Se. Pa. v. Post Goldtex GP, LLC, 823 F.3d
209, 212 (3d Cir. 2016).
2
incidence of near or actual collisions with pedestrians during left-hand turns. Counts
eleven through fifteen allege that the SEPTA Defendants placed the bus into service on
the day of the accident, with “conscious disregard of,” Am. Compl. ¶ 261, and “deliberate
indifference” to, see, e.g., Am. Compl. ¶¶ 266, 272, 275, 278, 281, 284, 287, a
“substantial and unjustifiable risk that pedestrian-bus collisions would occur during left
hand turning maneuvers at intersections,” Am. Compl ¶ 261, and seek relief under 42
U.S.C. § 1983 for violation of their substantive due process rights.
The SEPTA Defendants removed the case to the United States District Court for
the Eastern District of Pennsylvania, and moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6). The Court dismissed the federal claims against the SEPTA
Defendants, declined to exercise supplemental jurisdiction over the state law claims
under 28 U.S.C. § 1367(c), and remanded the action to state court.2 Plaintiffs appeal.
II3
A
2
The District Court also ruled on other claims involving the other Defendants, but
those rulings are not before us.
3
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. Our
Court has jurisdiction to review a district court’s order dismissing the federal claims and
remanding remaining state law claims to state court. 28 U.S.C. at § 1291; see, e.g.,
Hudson United Bank v. LiTenda Mortg. Corp., 142 F.3d 151, 155 (3d Cir. 1998)
(confirming appellate jurisdiction to review order dismissing federal claims against one
defendant and remanding remaining claims against second defendant to state court).
Our review is plenary. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220 (3d Cir.
2011) (citation omitted). We must determine whether the complaint, construed “in the
light most favorable to the plaintiff,” Santomenno ex rel. John Hancock Tr. v. John
Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014) (internal quotation marks and
citation omitted), “contain[s] sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)), “but we disregard rote
3
While states generally do not have an obligation to protect citizens, under the
state-created danger doctrine, a public actor may be liable for harm a citizen suffers if
“the state acts to create or enhance a danger that deprives the plaintiff of his” due process
rights. Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006) (emphasis omitted). Such a
due process claim requires proof of four elements:
(1) the harm ultimately caused was foreseeable and fairly
direct;
(2) a state actor acted with a degree of culpability that shocks
the conscience;
(3) a relationship between the state and the plaintiff existed
such that the plaintiff was a foreseeable victim of the
defendant’s acts, or a member of a discrete class of persons
subjected to the potential harm brought about by the state’s
actions, as opposed to a member of the public in general; and
(4) a state actor affirmatively used his or her authority in a way
that created a danger to the citizen or that rendered the citizen
more vulnerable to danger than had the state not acted at all.
Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (citations, internal
quotation marks, and footnotes omitted).
The fourth of these conjunctive elements reflects the fact that the substantive
component of the Due Process Clause “is phrased as a limitation on the State’s power to
act, not as a guarantee of certain minimal levels of safety and security. It forbids the
recitals of the elements of a cause of action, legal conclusions, and mere conclusory
statements,” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012) (citation
omitted). A claim “has facial plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014)
(internal quotation marks omitted).
4
State itself to deprive individuals of life, liberty, or property without due process of
law . . . .” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126 (1992) (quoting
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989)). “[A]
specific and deliberate exercise of state authority . . . is not sufficient.” Kaucher v.
County of Bucks, 455 F.3d 418, 432 (3d Cir. 2006). Rather, “[t]here must be a direct
causal relationship between the affirmative act of the state and plaintiff’s harm. Only
then will the affirmative act render the plaintiff ‘more vulnerable to danger than had the
state not acted at all.’” Id. (quoting Bright, 443 F.3d at 281). In other words, the state’s
affirmative act must be the “but for cause” of the plaintiff’s harm. Id.
Plaintiffs argue that “[b]y choosing to place the transit bus into service on [the date
of the accident], the SEPTA defendants [(1)] exposed the [P]laintiff’s decedent and
[P]laintiff K.W. to a danger they would not have otherwise encountered . . . [and (2)]
made the [Plaintiffs] more vulnerable to injury by increasing the risk that they would be
harmed as a result of a left-hand turn pedestrian bus collision.” Appellants’ Br. at 28.
Like the claims at issue in Kaucher, the ones here are essentially contentions that
“defendants failed to act affirmatively to improve” pedestrian safety. 455 F.3d at 433. In
Kaucher, we rejected a corrections officer’s claim that the defendants’ affirmative acts
caused him to contract an infection while working at a jail. Id. We observed that “[t]here
had always been cases of staph infections at the jail,” and determined that Kaucher had
alleged no specific affirmative action creating the danger or increasing the plaintiff’s
susceptibility to it. Id. at 434-35.
5
As in Kaucher, the SEPTA Defendants’ failure to remediate an allegedly known
risk does not constitute an affirmative act that satisfies the fourth element of a state-
created danger claim. See Searles v. Se. Pa. Transp. Auth., 990 F.2d 789, 793 (3d Cir.
1993) (rejecting state-created danger claim asserting that SEPTA’s failure to maintain
railcars in a safe operating condition is an “affirmative act”); see also Collins, 503 U.S. at
119 (suggesting “deliberate indifference to the safety of pedestrians that resulted in a fatal
injury to one who inadvertently stepped into an open manhole” would not sufficiently
allege state-created danger).
Plaintiffs’ argument that the SEPTA Defendants changed the “status quo of the
environment” by putting the bus into service on the day of the accident is also unavailing.
Appellants’ Br. at 25-28. In L.R. v. School District of Philadelphia, we explained that
we find it useful to first evaluate the setting or the “status quo” of the
environment before the alleged act or omission occurred, and then to ask
whether the state actor’s exercise of authority resulted in a departure from
that status quo. This approach, which is not a new rule or concept but rather
a way to think about how to determine whether this element has been
satisfied, helps to clarify whether the state actor’s conduct “created a danger”
or “rendered the citizen more vulnerable to danger than had the state not
acted at all.”
836 F.3d 235, 243 (3d Cir. 2016) (quoting Bright, 443 F.3d at 281). There, we held that a
teacher who allowed a child to leave his classroom with an unidentified adult who
thereafter sexually abused the child had affirmatively misused his authority because the
child was safe in the classroom (a “closely supervised” and “restricted” environment)
“unless and until [the teacher] permitted [the child] to leave.” Id.
6
Plaintiffs’ claim that “the status quo . . . is the placement of safe vehicles into
operation,” Appellants’ Br. at 27, misconstrues the “status quo” approach. According to
the Amended Complaint, the status quo here was the use of buses with a particular mirror
configuration allegedly known to obstruct the driver’s view. Since as early as 2003, there
have been several instances of left-turning SEPTA buses striking pedestrians in
crosswalks, various driver reports and union grievances about the “dangerous vision
obstruction” caused by the mirror configuration, Am. Compl. ¶¶ 80, 82-83, internal
memoranda and communications on visual obstruction from the mirror configuration, and
various news reports and public testimony on the problem. Before the accident, SEPTA
took steps to respond to the problem, including alerting drivers to the obstruction issues,
training them to lean forward in their seats to gain a better sight angle to minimize the
obstruction, and revising SEPTA directives relating to pedestrian hazards. Thus,
according to the Amended Complaint, the status quo was using buses with the particular
mirror system that were driven by drivers trained to operate the bus in a way to address
the problem the system allegedly posed. Placing the bus into service on the date of the
accident did not alter the status quo. Compare L.R., 836 F.3d at 243 (describing the
“typical” classroom and emphasizing absence of dangers within the classroom); with
DeShaney, 489 U.S. at 201 (“[w]hile the State may have been aware of the dangers that
[the child of whom it had temporarily taken custody] 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
. . . . [W]hen it returned him to his father’s custody, it placed him in no worse position
7
than that in which he would have been had it not acted at all”).4 Accordingly, Plaintiffs
have not alleged an affirmative misuse of state authority.
Because Plaintiffs failed to satisfy one of the four conjunctive elements, the
District Court properly dismissed their state-created danger claim. See Phillips v. County
of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (stating that plaintiff’s failure to plead the
fourth element “obviates the need to analyze the other three elements”); Sanford, 456
F.3d at 311 (noting that plaintiff’s “claim can go no further” because she failed to plead
the second element).
B
Plaintiffs’ Monell and supervisory liability claims also fail. Both of these claims
require a predicate constitutional violation. See Monell v. Dep’t of Soc. Servs. of City of
New York, 436 U.S. 658, 694 (1978) (explaining that municipal liability under § 1983
must be based on the “execution of a government’s policy or custom” that results in a
constitutional violation); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir.
2010) (explaining that supervisor liability requires a constitutional violation). Because
Plaintiffs have not alleged a constitutional violation, the District Court correctly
dismissed their Monell and supervisory liability claims.
4
See Kneipp v. Tedder, 95 F.3d 1199, 1209 (3d Cir. 1996) (explaining that “but
for the intervention of the police, [husband] would have continued to escort his wife back
to their apartment where she would have been safe” and therefore the state’s
intervention—sending her home unescorted in a seriously intoxicated state in cold
weather—“made [her] more vulnerable to harm”); see also Jones v. Reynolds, 438 F.3d
685, 693 (6th Cir. 2006) (“[T]he act of returning someone to the same dangers that
existed status quo ante does not satisfy the state-action requirement.” (quotation marks
and citation omitted)).
8
III
For all these reasons, we will affirm the District Court’s order dismissing counts
eleven through sixteen.
9