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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10694
Non-Argument Calendar
____________________
MARLON MIGUEL BROWN,
Plaintiff-Appellant,
versus
DR. EFFIE GREER,
JAY SEIDER,
Sued in their individual Capacities,
PALM BEACH SCHOOL DISTRICT,
FLORIDA HIGH SCHOOL ATHLETIC ASSOCIATION,
Sued in their Individual And Official Capacities,
Defendants-Appellees.
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2 Opinion of the Court 21-10694
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Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cv-82179-KAM
____________________
Before NEWSOM, BRANCH, and ANDERSON, Circuit Judges.
Marlon Brown, a prisoner proceeding pro se, appeals the
district court’s dismissal with prejudice pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) of his 42 U.S.C. § 1983 complaint against Dr. Effie
Greer, Jay Seider, Palm Beach School District, and the Florida High
School Athletic Association (FHSAA) and the denial of his two
motions—a motion to alter and amend the judgment and a motion
to object to the district court’s ruling. Brown argues that the facts
as pled in his complaint rise to a “conscience shocking” level and
therefore adequately state a claim upon which relief may be
granted. After review, we affirm the district court’s ruling.
I. Background
In his complaint, Brown alleged injury to his “human
dignity” and “bodily integrity” in violation of the Due Process
Clause of the Fourteenth Amendment while he was a student and
minor child at Glades Central High School under the custody and
care of the defendants. He claimed that he was diagnosed with
post-concussion syndrome in June 2020, allegedly stemming from
his years playing football in high school where his coach forced him
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21-10694 Opinion of the Court 3
to consistently absorb violent and sudden contact from other
players. He claimed that he often experienced helmet-to-helmet
collisions in games and practices, which caused him “numerous
sub-concussive head traumas, mild traumatic brain injuries, and
concussions.” Specifically, Brown alleged that at four different
games between September and November 1989, Brown’s head was
hit so hard that he experienced concussive symptoms such as
ringing in his ears, disorientation, temporary loss of hearing,
unconsciousness, and confusion. Brown claims his injuries were
not evaluated by team trainers or assistant coaches and he was
instead given smelling salts and told to return to the games to
continue to play and make aggressive contact with opposing
players. Brown sued his former high school football coach Jay
Seider, and his former high school principal, Effie Greer, under 42
U.S.C. § 1983, alleging that they violated his purported substantive
due process right of human dignity and bodily integrity by forcing
him to perform in athletic competitions which involved potentially
dangerous collisions and for failing to remove him from play after
he sustained head trauma and displayed concussion symptoms.1
He also alleged that they violated the Due Process Clause of the
Fourteenth Amendment under a state-created danger/special
relationship theory. Brown alleged that Defendants FHSAA and
the Palm Beach School District, acting through their agents’
1 Brown also sued Seider and Greer for violations of the Florida constitution
for injury to bodily integrity but did not appeal the district court’s dismissal of
this claim without prejudice.
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employees, were responsible for the actions of the football coach
and principal through the doctrine of respondeat superior.
Because Brown is a prisoner, the district court had to screen
his complaint under 28 U.S.C. § 1915. And, upon this review, the
court dismissed under § 1915(e)(2)(B)(ii), which provides that “the
court shall dismiss the case at any time if the court determines that”
the appeal “fails to state a claim on which relief may be granted.”
Brown then filed a motion to alter or amend the judgment, and
submitted objections to the district court, which were then denied
and overruled, respectively. The district court entered a final
judgment. This appeal followed.2
II. Discussion
Brown argues that the allegations in the complaint are
sufficient to survive dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)
and therefore his case for damages for violations of his Fourteenth
Amendment rights should have been permitted to proceed in
forma pauperis.
We review de novo a district court’s dismissal of a complaint
for failure to state a viable claim under 28 U.S.C. § 1915(e)(2)(B)(ii).
Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). We take
the allegations in the complaint as true. Id. We liberally construe
2 In his brief to this Court, Brown argued that the district court erred in
dismissing his claims for violations of his Eighth Amendment rights. Brown
did not assert an Eighth Amendment argument in the district court, and
therefore we will not consider that argument on appeal. See Finnegan v.
Comm'r of Internal Revenue, 926 F.3d 1261, 1272 (11th Cir. 2019).
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21-10694 Opinion of the Court 5
pro se pleadings and hold them to less stringent standards than
pleadings drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007).
A district court shall sua sponte dismiss a prisoner’s
complaint filed in forma pauperis if it determines that the
complaint fails to state a claim on which relief may be granted. See
28 U.S.C. § 1915(e)(2)(B)(ii). The standard for dismissal under 28
U.S.C. § 1915(e)(2) for failure to state a claim on which relief may
be granted is the same as the standard for dismissal under Federal
Rule of Civil Procedure 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483,
1489–90 (11th Cir. 1997). A complaint “does not need detailed
factual allegations” to properly state a claim, but a plaintiff must
provide more than “labels and conclusions, and a formulaic
recitation of the elements” of the claim to avoid dismissal. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint fails to
state a viable claim when it does not include enough facts, taken as
true, to “state a claim to relief that is plausible on its face.” Id. at
570.
In order to state a valid claim under 42 U.S.C. § 1983, a
plaintiff must allege facts supporting a plausible finding that he was
deprived of a right secured by the Constitution or laws of the
United States and that the alleged deprivation was committed
under the color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999). To impose liability on a school district,
a plaintiff “must identify a municipal policy or custom that caused
a deprivation of federal rights.” Davis v. DeKalb Cnty. Sch. Dist.,
233 F.3d 1367, 1375 (11th Cir. 2000) (quotations omitted). A school
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district cannot be held liable under the doctrine of respondeat
superior. Id.
The Fourteenth Amendment prohibits state and local
governments from “depriv[ing] any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV,
§ 1. However, as enforced under § 1983, the amendment does not
act as a vehicle to convert state tort claims into federal causes of
action. Waddell v. Hendry Cnty. Sheriff’s Off., 329 F.3d 1300, 1305
(11th Cir. 2003). The Fourteenth Amendment limits the state’s
power to act, but generally does not guarantee minimal levels of
safety and security. DeShaney v. Winnebago Cnty. Dep’t of Soc.
Servs., 489 U.S. 189, 195 (1989). A state official has a duty to protect
an individual only when the individual in question is in the state’s
custody. L.S. ex rel. Hernandez v. Peterson, 982 F.3d 1323, 1329
(11th Cir. 2020). When an individual is not in custody, “conduct
by a government actor will rise to the level of a substantive due
process violation only if the act can be characterized as arbitrary or
conscience shocking in a constitutional sense.” Waddell, 329 F.3d
at 1305.
School children are not in a custodial relationship with the
state. Hernandez, 982 F.3d at 1329. To succeed on a substantive
due process claim based on a theory that school officials engaged
in deliberately indifferent conscience shocking behavior, students
must “allege both that the officials acted with deliberate
indifference and that the indifference was arbitrary or conscience
shocking.” Id. at 1330 (quotations omitted). “To act with
deliberate indifference, a state actor must know of and disregard an
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excessive—that is, an extremely great—risk to the victim’s health
or safety.” Waddell, 329 F.3d at 1306. We have held that deliberate
indifference to student safety by school officials, without more, is
not conscience shocking behavior. See Davis v. Carter, 555 F.3d
979, 980, 984 (11th Cir. 2009) (holding that allegations that football
coaches subjected a high school student to intense and
unreasonable practices with deliberate indifference to his safety did
not state a viable Fourteenth Amendment claim). We have also
expressed doubt that deliberate indifference can ever be arbitrary
or conscience shocking in non-custodial settings. Hernandez, 982
F.3d at 1330. In the public-school setting, substantive due process
claims have been allowed to proceed only in cases of “intentional,
obviously excessive corporal punishment.” Id. at 1331.
Here, because Brown was in high school, he was not in the
custody of the state. See Hernandez, 982 F.3d at 1329. Therefore,
Brown would have to allege that Greer and Seider acted with a
deliberate and conscious-shocking disregard of an extreme risk to
Brown’s safety.3 The factual claims made in his complaint do not
meet this high standard of “intentional, obviously excessive
corporal punishment.” Id. at 1331. Brown’s claim of deliberate
indifference to his safety in a non-custodial school setting, without
more, does not state a valid substantive due process claim.
3Brown did not identify a municipal policy or custom that could serve as the
basis for a viable § 1983 claim against the entity defendants. See Davis, 233
F.3d at 1375.
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The district court did not err in dismissing Brown’s
complaint because he failed to allege that Greer’s or Seider’s
actions were either arbitrary or conscience shocking. Brown
alleged only that Seider and Greer were deliberately indifferent to
his health and safety, not that either of them intentionally
physically harmed him. Accordingly, Brown’s complaint failed to
state a viable claim under § 1983 against any of the defendants.
AFFIRMED.