NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 17-3272
________________
JANE JONES, fictitious name
v.
PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC.; BRETT HELBERG, Pi
Kappa Alpha Fraternity Member, in his individual and official capacity; DAVID
MALINOWSKI, Pi Kappa Alpha Fraternity Member, in his individual and official
capacity; PI KAPPA ALPHA LOCAL CHAPTER MU ZETA RAMAPO COLLEGE;
SKENDER AGIC, Pi Kappa Alpha Fraternity/Mu Zeta Chapter President, in his
individual and official capacity; JOHN HOGAN, Pi Kappa Alpha/Mu Zeta Member and
Sergeant at Arms in his official and individual capacity; JOSHUA WILLIAM
NEWMAN, Pi Kappa Alpha Fraternity/Mu Zeta Chapter Member, in his individual and
official capacity; RAMAPO COLLEGE OF NEW JERSEY; RAMAPO COLLEGE
BOARD OF TRUSTEES; VINCENT MARKOWSKI, Ramapo College of New Jersey
Public Safety Director, in his individual and official capacity; PETER MERCER,
Ramapo College of New Jersey President, in his individual and official capacity; CORY
ROSENKRANZ, Ramapo College of New Jersey Coordinator of Substance Abuse &
Prevention, in her individual and official capacity; MELISSA VAN DER WALL,
Ramapo College of New Jersey Acting Dean of Students; JORDYN MASSOOD, former
Ramapo College of New Jersey Student; JUSTIN SOMMERS, former Ramapo College
of New Jersey Student; JOHN/JANE DOES #1-20 individually and in their official
capacity; XYZ CORPORATIONS #1-10 individually, jointly, and severally and in the
alternative; CHRISTOPHER RAINONE, former Ramapo College of New Jersey Student
Ramapo College of New Jersey; Ramapo College Board of Trustees; Vincent
Markowski; Peter Mercer; Cory Rosenkranz; Melissa Van Der Wall,
Appellants
________________
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-16-cv-07720)
District Judge: Honorable Kevin McNulty
________________
Argued January 8, 2019
Before: AMBRO, KRAUSE, and FUENTES, Circuit Judges
(Opinion filed April 1, 2019)
Gurbir S. Grewal
Attorney General of New Jersey
Melissa Raksa
Assistant Attorney General
Benkamin H. Zieman
Deputy Attorney General
Christopher J. Riggs [Argued]
Office of Attorney General of New Jersey
Division of Law Tort Litigation and Judiciary
25 Market Street
P.O. Box 116
Trenton, NJ 08625
Counsel for Appellants
Patrick J. Whalen [Argued]
109 South Warren Street
P.O. Box 23653
Trenton, NJ 08608
Counsel for Appellee
________________
OPINION*
________________
FUENTES, Circuit Judge
In this appeal under 42 U.S.C. § 1983, defendant-appellants Ramapo College and
several of its officers—its Board of Trustees, President, Acting Dean of Students and
former Title IX Coordinator, Public Safety Director, and Coordinator of Substance Abuse
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
2
and Prevention (the “officers”)—appeal the District Court’s denial of their Motion to
Dismiss. In their Motion, Ramapo and the officers sought to dismiss, inter alia, plaintiff-
appellee Jane Jones’s claims for deliberate indifference and a state-created danger in
Counts VII and VIII of her Complaint, respectively. On appeal, Ramapo and the officers
in their official capacities argue they are entitled to sovereign immunity as an arm of the
state. The officers also argue in their individual capacities that they are entitled to
qualified immunity, either because Jones has failed to sufficiently allege a state-created
danger or because it was no longer clearly established following the Supreme Court
decision Ashcroft v. Iqbal1 that supervisors could be liable for violations of the
Fourteenth Amendment by their subordinates.
We conclude that Ramapo and the officers in their official capacities are entitled
to sovereign immunity under our decision in Maliandi v. Montclair State University.2
Thus, we reverse the District Court’s denial of the Motion to Dismiss with respect to
Counts VII and VIII against Ramapo and the officers in their official capacities. Further,
we hold that Jones has failed to sufficiently plead a state-created danger and the officers
are thus entitled to qualified immunity with respect to Count VIII. However, we affirm
the District Court’s denial of the Motion with respect to Count VII against the officers in
their individual capacities because they have waived the issue.
1
556 U.S. 662 (2009).
2
845 F.3d 77 (3d Cir. 2016).
3
I. Background
The allegations in Jones’s Complaint may be summarized as follows3:
A. Jones’s Sexual Assault and Rape
The suit arises from the sexual assault and rape of plaintiff-appellee Jane Jones—
who filed this case under a pseudonym—at a fraternity party on the campus of Ramapo
College. The party was held in one of the fraternity member’s student apartments. Upon
her arrival at the party, Jones was served drinks by a fraternity pledge known as “C.L.”
until she was “completely inebriated.”4 C.L. then “lured” Jones into the apartment
bedroom, where he and another man played “Rock, Paper, Scissors” in order to
“determine who would get to sexually assault and rape” her.5 C.L. then sexually
assaulted Jones. When other fraternity members became aware of the assault, they
expelled Jones and C.L. from the party together. Jones’s shoes, underwear, jacket, and
school identification were all left in the apartment.
C.L. then drove Jones across campus to a freshmen dormitory, passing Ramapo
security checkpoints en route. Two residents of the dormitory, Christopher Rainone and
Justin Sommers, let C.L. and Jones into the dormitory and accompanied C.L. and Jones
to their room. There, C.L. and yet another man again assaulted and raped Jones while
Rainone, Sommers, and a fifth student, Jordyn Massood, kept watch and videotaped the
3
As noted below, we must, while reviewing a ruling on a motion to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), view the facts in the light most
favorable to the plaintiff. In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d
625, 632 (3d Cir. 2017); Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011).
4
A37.
5
Id.
4
incident. Because of her rape and the physical and psychological harm caused by it,
Jones was unable to continue her studies at Ramapo and later left the institution.
B. Proceedings in the District Court
Jones filed suit in the District Court against, inter alia, Ramapo and its officers.
Of the seventeen counts in her Complaint under 42 U.S.C. § 1983, Title IX,6 and state
law, two against Ramapo and its officers are relevant here: Count VII for “deliberate
indifference” and Count VIII for a “state-created danger,” both under § 1983. Jones
alleges that various “Public Safety and Security employees” of Ramapo, named in the
Complaint as Doe defendants, “had the opportunity to intervene and stop” her assault and
rape.7
Ramapo and its officers moved to dismiss the Complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6), arguing, inter alia, that Ramapo and its officers in
their official capacities were an arm of the state entitled to sovereign immunity and that
the officers in their individual capacities were entitled to qualified immunity. The
District Court denied the Motion to Dismiss, and Ramapo and its officers appealed.
6
20 U.S.C. §§ 1681-88.
7
A41.
5
II. Standard of Review8
We review denial of a motion to dismiss under Rule 12(b)(1) for lack of
jurisdiction de novo.9 Although Rule 12(b)(1) permits both facial and factual challenges
to a court’s jurisdiction,10 only a facial attack is presented here. A facial attack
“challenges subject matter jurisdiction without disputing the facts alleged in the
complaint, and it requires the court to ‘consider the allegations of the complaint as
true.’”11 In a facial attack, the court applies the same standard as under Rule 12(b)(6).12
We review denial of a motion to dismiss under Rule 12(b)(6) on the basis of
qualified immunity de novo.13 When conducting our review, “we accept all factual
allegations as true [and] construe the complaint in the light most favorable to the
8
Jones alleges that the District Court had subject-matter jurisdiction over her federal
claims under 28 U.S.C. § 1331 and over her state claims under § 1367. We have
jurisdiction to review the District Court’s denial of Ramapo and the officers’ Motion to
Dismiss pursuant to the collateral order doctrine. P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993); Plumhoff v. Rickard, 572 U.S. 765, 772
(2014).
9
MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503 (3d Cir. 2001) (citing Lavia v.
Pa. Dept. of Corr., 224 F.3d 190, 194-95 (3d Cir. 2000).
10
In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017).
11
Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon
Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)).
12
Horizon Healthcare Servs., 846 F.3d at 633.
13
George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013) (quoting James v. City of Wilkes-
Barre, 700 F.3d 675, 679 (3d Cir. 2012)) (“We exercise de novo review of a district
court’s denial of a motion to dismiss on qualified immunity grounds as it involves a pure
question of law.”).
6
plaintiff.”14 However, “we are not compelled to accept unsupported conclusions and
unwarranted inferences or a legal conclusion couched as a factual allegation.”15
III. Discussion
On appeal, Ramapo and its officers raise two arguments: (1) Ramapo and its
officers in their official capacities are an arm of the state entitled to sovereign immunity,
and (2) the officers in their individual capacities are entitled to qualified immunity
because (a) the state-created danger doctrine is inapplicable to merely passive state
conduct or, in the alternative, (b) it is no longer clearly established after the decision
Ashcroft v. Iqbal16 that supervisory liability may be imposed “in the context of a
Fourteenth Amendment state-created danger claim.”17 Because Ramapo and its officers
are arms of the state entitled to sovereign immunity and Jones has failed to sufficiently
plead a state-created danger, we reverse in part and remand for further proceedings.
A. Ramapo and Its Officers in Their Official Capacities Are an Arm of
the State Entitled to Sovereign Immunity
First, Ramapo and its officers in their official capacities argue that they are an arm
of the state. States and “governmental entities that are considered ‘arms of the State’” are
immune to suit in federal court.18 An entity may be deemed an “arm of the state” under
the balancing test of three co-equal factors that we articulated in Fitchik v. New Jersey
14
Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotation
marks omitted) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002)).
15
Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (internal quotation marks
omitted) (internal citation omitted).
16
556 U.S. 662 (2009).
17
Appellant Br. at 47-48.
18
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989).
7
Transit Rail Operations, Inc.19: (1) “whether the state treasury is legally responsible for
an adverse judgment” against the entity (the “funding factor”), (2) “whether the entity is
treated as an arm of the State under state case law and statutes” (the “status factor”), and
(3) “whether, based largely on the structure of its internal governance, the entity retains
significant autonomy from state control” (the “autonomy factor”).20
Ramapo argues that it is an arm of the state under our decision in Maliandi v.
Montclair State University.21 We agree. In Maliandi, we applied the Fitchik factors to
Montclair State University and concluded that, although the funding factor weighed
against finding that Montclair was an arm of the state, it was outweighed by the status
and autonomy factors.22 Because Ramapo is a New Jersey state college governed by the
same statutes that governed Montclair, we are compelled by Maliandi to conclude that
Ramapo is an arm of the state under the Fitchik factors. We turn to those factors now.
First, the funding factor weighs against finding that Ramapo is an arm of the state,
due to our decision in Maliandi.23 In Maliandi, we noted that, under New Jersey law, the
state was legally liable for judgments against Montclair only under the New Jersey Tort
Claims Act24 and the New Jersey Contractual Liability Act.25 Similarly, the fact that only
18.8 to 21.8 percent of Montclair’s funding came from the state weighed against
19
873 F.2d 655, 659 (3d Cir. 1989).
20
Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016) (citing Fitchik, 873
F.2d at 659).
21
845 F.3d 77.
22
Id. at 86. Montclair was a state college at the time Maliandi was decided.
23
845 F.3d 77 (3d Cir. 2016). Although Ramapo concedes that the funding factor weighs
against it, the issue is resolvable on a motion to dismiss, so we will address it.
24
N.J. Stat. Ann. §§ 18A:3B-6(h), 59:1-1 to :12-3.
25
Id. §§ 59:13-1 to -10.
8
immunity.26 However, the state had expressly immunized itself from Montclair’s
liabilities only in certain, limited cases.27 On the whole, these considerations “tip[ped]
decisively” in favor of finding that Montclair was not an arm of the state.28 We reach the
same conclusion with respect to Ramapo, as it is subject to the same laws regarding
funding as Montclair when Maliandi was decided,29 and Ramapo’s state funding makes
up only 27.9 percent of its budget.30
Second, under Maliandi, Ramapo’s status under state law weighs in favor of
finding that Ramapo is an arm of the state. The Maliandi Court concluded that although
Montclair’s legal authorization to own land in its own name weighed against treating it as
an arm of the state,31 four other considerations tipped the other direction. First, New
Jersey law did not generally grant state colleges like Montclair the right to sue and be
sued, but instead allowed them to be represented by the state Attorney General.32
Second, Montclair was immune from paying state taxes.33 Third, Montclair was
authorized by state law to exercise eminent domain, a prerogative normally reserved for
26
Maliandi, 845 F.3d at 88-89 (“[A]lternative sources of funding—even where only a
small part of the entity’s overall budget—counsel against immunity.”). In Maliandi, we
took judicial notice of Montclair’s budget reports as public documents. Id. at 89 n.10.
27
Id. at 90.
28
Id. at 91.
29
See N.J. Stat. Ann. §§ 18A:3B-6(h), :64-6(k), (t), 59:1-1 to :12-3, :13-1 to -10.
30
Ramapo College of New Jersey, Budget Report 2018-2019 (June 25, 2018),
https://www.ramapo.edu/budget/files/2018/08/FY19-Budget-Book.pdf. As in Maliandi,
we take judicial notice of Ramapo’s financial documents as “public documents.”
Maliandi, 845 F.3d at 89 n.10.
31
Maliandi, 845 F.3d at 96 (citing N.J. Stat. Ann. § 18A:64-6(k), (q)).
32
Id. at 94 (citing N.J. Stat. Ann. §§ 18A:3B-6(h), :64-6(k)).
33
Maliandi, 845 F.3d at 95.
9
arms of the state.34 Fourth, Montclair was generally required to comply with New
Jersey’s administrative procedure and civil service laws.35 The same analysis applies to
Ramapo, as it is subject to the same statutory regime as Montclair, which has not been
substantively amended since Maliandi.36 Thus, Maliandi compels the conclusion that
Ramapo’s status under state law weighs in favor of finding that it is an arm of the state.
Third, Ramapo’s limited autonomy from the state also weighs in favor of
concluding that Ramapo is an arm of the state, compelled again by the decision in
Maliandi. In Maliandi, we concluded that, although state law guaranteed Montclair
“institutional autonomy”37 and its trustees could only be removed by the Governor for
cause,38 the trustees were all appointed by the governor,39 who was statutorily designated
as the “employer” of all Montclair employees, vesting him with the “sole power to
collectively bargain on their behalf.”40 Similarly, the Secretary of Higher Education was
vested with the authority to issue various rules governing Montclair, including
“regulations relating to licensure, outside employment, tuition, personnel, tenure, and
34
Id. (citing N.J. Stat. Ann. § 18A:64-6(l)).
35
Id. (citing N.J. Stat. Ann. §§ 18A:3B-6(f), :64-6(i)). Three other considerations were
inconclusive: state law placed Montclair within the Department of State but guaranteed it
“institutional autonomy,” authorized it to enter into contracts, but subject to state-
imposed limits, and permitted Montclair to separately incorporate, which it never did. Id.
at 91-96 (citing N.J. Stat. Ann. §§ 18A:3B-27, :64-6(a), (k)).
36
Section 18A:3B-6 was amended in 2017 only to include a reference to the legislation
elevating Montclair from a state college to a public university. 2017 N.J. Laws 178, sec.
37. The substance of § 18A:3B-6 was otherwise unchanged.
37
Maliandi, 845 F.3d at 98 (citing N.J. Stat. Ann. § 18A:3B-27).
38
Id. (citing N.J. Stat. Ann. §§ 18A:64-3, -5).
39
Id. at 97 (citing N.J. Stat. Ann. § 18A:64-3).
40
Id. (citing N.J. Stat. Ann. § 18A:64-21.1)
10
retirement programs.”41 Montclair was also subject to the state’s administrative
procedure, state contract, and civil service laws.42 Those same statutory requirements
apply to Ramapo, compelling the conclusion that it is not autonomous from the state.
Because two of the three co-equal Fitchik factors tip in favor of finding that
Ramapo is an arm of the state, it is entitled to sovereign immunity, as are its officers in
their official capacities. Thus, we reverse the District Court’s denial of the Motion to
Dismiss with respect to both Counts VII and VIII against Ramapo and its officers in their
official capacities.
B. Qualified Immunity for Jones’s State-Created Danger Claim
Next, Ramapo’s officers in their individual capacities argue that they are entitled
to qualified immunity. A state official sued in his or her individual capacity is entitled to
qualified immunity from suit unless (1) “the facts that a plaintiff has alleged or shown
make out a violation of a constitutional right” and (2) “the right at issue was ‘clearly
established’ at the time of defendant’s alleged misconduct.”43 A right may be clearly
established even if there is no “previous precedent directly in point”; the ultimate inquiry
is whether “a reasonable official would have known that the conduct was unlawful.”44
The officers’ principle argument is that Jones has failed to plead a claim for state-
created danger because a state-created danger cannot be premised on the state’s mere
41
Id. (citing N.J. Stat. Ann. §§ 18A:3B-14, -15).
42
Id. at 98 (citing N.J. Stat. Ann. §§ 18A:3B-6(f), :64-6(h), (k), (w), (x), :64-52 to -93).
43
Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156 (2001)).
44
Leveto v. Lapina, 258 F.3d 156, 162 (3d Cir. 2001) (quoting Good v. Dauphin County
Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)).
11
failure to act. We agree. Because Jones has failed to plead a claim for a state-created
danger, we do not reach the officers’ argument regarding Iqbal.
We conclude that the officers are entitled qualified immunity because Jones has
failed to state a claim for a state-created danger in Count VIII of the Complaint. To state
a claim for state-created danger, the plaintiff must allege: (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,” 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.”45
Jones fails to allege that Ramapo employees “affirmatively used” their authority.
Specifically, her portrayal of Ramapo’s employees as affirmatively “allow[ing]” the
perpetration of her rape is unavailing.46 In Morrow v. Balaski, we rejected “attempts to
morph passive inaction into affirmative acts.”47 In Morrow, the Court, sitting en banc,
concluded that a high school’s readmission of a student suspended for assaulting students
Brittany and Emily Morrow did not constitute a state-created danger, despite the fact the
student again assaulted the Morrow children after her readmission.48 In reaching that
conclusion, we stated, “[W]e fail to see how the suspension created a new danger for the
45
L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016) (citing Bright v.
Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)).
46
See also Appellee Br. at 25-28.
47
Morrow v. Balaski, 719 F.3d 160, 179 (3d Cir. 2013) (rejecting appellants’ “attempts to
morph passive inaction into affirmative acts”).
48
Id. at 164, 178.
12
Morrow children or ‘rendered [them] more vulnerable to danger than had the state not
acted at all.’”49 Similarly, Jones was not placed in more danger by Ramapo employees.
At the moments that she may have come into contact with Ramapo’s employees, she was
already in the custody of her assailant. At most, Jones has alleged that Ramapo
employees should have done more to protect her from a private actor, which is outside
the scope of the state-created danger doctrine.50
In reaching that conclusion, we are not unsympathetic to the suffering that Jones
endured, nor to the tragedy that the events as alleged could have been prevented. Our
holding reflects merely that, while other means, including state tort claims and criminal
proceedings, are available to punish wrongdoers, the state-created danger doctrine does
not reach failures to intervene. We therefore will reverse the District Court with respect
to the officers’ qualified immunity for Jones’s claim for state-created danger in Count
VIII of the Complaint.
The officers next argue that they are entitled to qualified immunity because it was
no longer clearly established following the Supreme Court’s decision in Ashcroft v. Iqbal
that supervisory liability may be imposed for an official’s “knowledge and acquiescence”
in a subordinate’s creation of a state-created danger.51 The imposition of supervisory
liability is critical to Jones’s claims against the officers because she does not allege that
49
Id. at 178 (alteration in original) (quoting Bright, 443 F.3d at 281).
50
DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). Jones’s
reliance on our decision in L.R. v. School District of Philadelphia is similarly unavailing,
because she has failed to allege a change in her status quo caused by a state actor, as
required by that decision. L.R., 836 F.3d at 243.
51
Reply Br. at 7-8.
13
they personally participated in her harm, but rather caused her injuries through their
“knowledge and acquiescence” in and “deliberate indifference” to the harms she faced.52
We have held that supervisory liability may be imposed on a defendant for the
conduct of his or her subordinates if the defendant (1) is a “policymaker[]” who “with
deliberate indifference to the consequences, established and maintained a policy, practice
or custom which directly caused [the plaintiff’s] constitutional harm,”53 or
(2) “participated in violating the plaintiff’s rights, directed others to violate them, or, as
the person in charge, had knowledge of and acquiesced in his subordinates’ violations.”54
In Iqbal, however, the Supreme Court concluded that supervisory liability could not be
imposed on supervisory officials in a discrimination claim for their “mere” “knowledge
and acquiescence in their subordinates’ discriminatory purpose.”55 Instead, the plaintiff
must plead that the officials “adopted and implemented the . . . policies at issue” with the
same discriminatory “purpose” as their subordinates.56 Based on Iqbal, we altered our
standard for supervisory liability, at least for Eighth Amendment claims, concluding that
“the level of intent necessary to establish supervisory liability will vary with the
underlying constitutional tort alleged.”57
52
E.g., A34, A49, A50-51, A69-72; see Appellee Br. at 20-21.
53
A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
54
A.M., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.
1995)).
55
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
56
Id.
57
Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), rev’d on other
grounds, Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015).
14
Based on Iqbal, the officers contend that the “‘knowledge and acquiescence’
theory of supervisory liability” is no longer viable.58 The officers, however, expressly
limit their argument to “the context of a Fourteenth Amendment state-created danger
claim.”59 Because the officers are entitled to qualified immunity on Jones’s claim for a
state-created danger,60 we do not reach the issue with respect to Iqbal.
D. The Officers Have Waived a Challenge to Jones’s Claim for Deliberate
Indifference
Finally, Jones contends that the officers in their individual capacities have waived
any argument regarding her claim for deliberate indifference in Count VII of her
Complaint.61 We agree. Appellants “are required to set forth the issues raised on appeal
and to present an argument in support of those issues in their opening brief . . . . [I]f an
appellant fails to comply with these requirements on a particular issue, the appellant
normally has abandoned and waived that issue on appeal and it need not be addressed by
the court of appeals.”62
The officers have failed to raise any arguments regarding Count VII in their
opening brief. Instead they address only Jones’s state-created danger claims63 and limit
their arguments regarding Iqbal to “the context of a Fourteenth Amendment state-created
58
Reply Br. at 7.
59
Appellants Br. at 47-48; accord Reply at 8.
60
See supra Section III.B.
61
Appellee Br. at 15.
62
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
63
Appellant Br. at 31.
15
danger claim,”64 failing entirely to address Jones’s deliberate indifference claim against
the officials.
Nonetheless, the officers contend that “[s]ince the Ramapo Defendants are entitled
sovereign immunity as an arm of the state, and to qualified immunity[,] Count VII along
with all other § 1983 claims must be dismissed.”65 We disagree. Although sovereign
immunity protects the officers in their official capacities with respect to both Counts VII
and VIII, qualified immunity shields them in their individual capacities only with respect
to Count VIII, because Jones has failed to plead only a state-created danger. A claim for
deliberate indifference, however, is an “independent basis for liability,” premised on a
distinct set of elements from a state-created danger claim.66 The officers fail to address
any of those elements and have consequently waived that issue.
IV. Conclusion
For the foregoing we reasons, we reverse the Order of the District Court with
respect to Counts VII and VIII of Jane Jones’s Complaint against Ramapo College of
New Jersey and its officers in their official capacities and with respect to Count VIII
against the officers in their individual capacities. We affirm in all other respects.
64
Appellants Br. at 47-48; accord Reply at 8.
65
Reply Br. at 4.
66
Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989); cf. Fagan v.
City of Vineland, 22 F.3d 1283, 1292-93 (3d Cir. 1994).
16