United States Court of Appeals,
Fifth Circuit.
No. 93-1546.
Marsha LEFFALL, Individually and as the Surviving Parent of
Dameon Steadham and/or Personal representative of the Estate of
Dameon Steadham, Deceased, Plaintiff-Appellant,
v.
DALLAS INDEPENDENT SCHOOL DISTRICT, et al., Defendants,
Dallas Independent School District and Napoleon B. Lewis,
Defendants-Appellees.
Aug. 15, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before KING and WIENER, Circuit Judges, and ROSENTHAL,* District
Judge.
KING, Circuit Judge:
Eighteen-year-old Dameon Steadham was killed by random gunfire
in the parking lot of a public high school after a school dance.
The principal question posed by this appeal is whether the decision
of the public school district and the high school principal to
sponsor the dance despite their knowledge of the danger of such an
occurrence violated Steadham's constitutional rights.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The allegations of the complaint, which must be taken as true
for purposes of reviewing a dismissal for failure to state a claim
on which relief can be granted, included the following. On or
about the evening of April 17, 1992, Dameon Steadham attended a
*
District Judge of the Southern District of Texas, sitting
by designation.
1
dance held upon the grounds of Lincoln High School in Dallas,
Texas. The dance was sponsored by Lincoln High School and an
organization identified only as the "Parent Teacher Association."
After the dance, a number of teenagers congregated in the Lincoln
High School parking lot. Several individuals began to fire
handguns randomly and recklessly into the air. In the course of
the shooting, sixteen-year-old John L. Cofield, a student at Bryan
Adams High School, accidentally and fatally shot Steadham in the
head.
Steadham's mother, Marsha Leffall, brought the instant suit in
Texas state court against the Dallas Independent School District
(DISD), Cofield, Marilyn Clayter (Cofield's mother), and Napoleon
Lewis (principal of Lincoln High School). The petition and amended
petition alleged that at the time of the incident in question it
was well-known that students attending schools in the DISD (and
Lincoln High School in particular) often carried and fired
dangerous weapons on school property. The petition also alleged
that the Safety and Security Department of the DISD took inadequate
measures to prevent the events leading to Steadham's death,
assigning only two unarmed security guards to the Lincoln High
School Dance that night. The frequency of gunfire during and after
school functions at Lincoln High School was so well-known that
officials of the Dallas Police Department had previously asked
Lincoln High School officials to refrain from sponsoring school
functions until adequate police security could be provided.
After Leffall filed her original petition, the DISD and Lewis
2
filed a motion for summary judgment on the basis of sovereign
immunity. Leffall then amended her petition to include a claim
based on 42 U.S.C. § 1983 (without altering the factual allegations
made in the original petition). The DISD and Lewis then removed
the suit to federal district court and filed a motion in federal
court to dismiss for failure to state a claim. Leffall filed a
motion to remand the case to state court and replied to the
defendants' motion to dismiss. Soon thereafter Leffall filed a
motion for leave to file a second amended complaint.
At this point a problem in the record asserts itself. Leffall
states in her brief before this court that she appended her second
amended complaint to her motion for leave to amend; our review of
the record on appeal shows this not to be the case. In a
late-filed volume of supplemental record on appeal, we find a copy
of a document styled "Plaintiff's Second Amended Original
Complaint" and a letter to the clerk of the district court for the
Northern District of Texas explaining that the second amended
complaint had been stamped "received" instead of "filed." The
second amended complaint pleaded Leffall's causes of action against
the DISD and Lewis with greater particularity, clearly alleging
callous indifference on the part of the DISD and Lewis and alleging
that the inadequate security on the night of the dance was provided
pursuant to a practice so widespread and well-established as to
represent the policy of Lewis and the DISD. The second amended
complaint also sought to add a cause of action based on breach of
an implied warranty by the DISD and Lewis to paying dance patrons
3
that the dance would be safe to attend and that the DISD and Lewis
would provide security adequate to protect patrons from foreseeable
criminal activity; this breach of warranty claim was stated in
terms of Texas state law rather than in terms of federal law
violations. Leffall later filed a motion to compel and for
sanctions against the DISD and Lewis for discovery abuse, which was
referred to a magistrate judge.
Before the magistrate judge could rule on Leffall's motion to
compel and for sanctions, the district court denied Leffall's
motions to remand and to amend her complaint and granted the motion
to dismiss filed by the DISD and Lewis. Leffall filed a motion to
reconsider and a second request for leave to amend her complaint
(again, Leffall's third amended complaint appears only in the
supplemental record on appeal), both of which were denied, and she
timely filed her notice of appeal. She challenges the district
court's denial of her motions to remand and to amend her complaint
and the dismissal of her lawsuit against the DISD and Lewis.
II. STANDARDS OF REVIEW
We review a dismissal for failure to state a claim under the
same standard used by the district court: a claim may not be
dismissed unless it appears certain that the plaintiff cannot prove
any set of facts in support of his claim that would entitle him to
relief. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994);
Carney v. RTC, 19 F.3d 950, 954 (5th Cir.1994).
Because removal is an issue of statutory construction, we
review a district court's determination of the propriety of removal
4
de novo. Garrett v. Commonwealth Mortgage Corp. of Am., 938 F.2d
591, 593 (5th Cir.1991). Removal statutes are to be strictly
construed against removal. Brown v. Demco, Inc., 792 F.2d 478, 482
(5th Cir.1986); Noble v. Bradford Marine, Inc., 789 F.Supp. 395,
396 (S.D.Fla.1992).
The decision to grant or deny a motion to amend is entrusted
to the sound discretion of the district court. Norman, 19 F.3d at
1021; Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d
314, 320 (5th Cir.1991). This discretion, however, is limited by
Federal Rule of Civil Procedure 15(a), which states that "leave
shall be freely given when justice so requires." We have stated
that the district court's discretion does not permit denial of a
motion to amend unless there is a substantial reason to do so.
Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 598 (Former 5th
Cir. Nov. 1981). Two valid reasons we have recognized in the past
are untimeliness and futility. E.g., Avatar Exploration, 933 F.2d
at 320-21. If a district court does not give an explanation for
its denial of a motion to amend, its reasons must be readily
apparent in view of the liberal position of the federal rules on
granting amendments. Dussouy, 660 F.2d at 597.
III. ANALYSIS
A. MOTION TO REMAND
We turn first to Leffall's contention that the district court
erred in denying her motion to remand her lawsuit to state court.1
1
This court has jurisdiction over a denial of a motion to
remand to state court when coupled with the appeal of a final
judgment. Jones v. Newton, 775 F.2d 1316, 1317 (5th Cir.1985).
5
Leffall asserts and the appellees do not deny that she filed
her original petition in Texas state court on November 10, 1992,
and that Lewis was served with a copy of the original petition on
December 9, 1992. Lewis and the DISD answered on November 24,
1992. Leffall filed her amended petition, which added the § 1983
claim, in state court on January 26, 1993. Lewis and the DISD
filed their notice of removal on February 4, 1993.
Leffall contends that Lewis and the DISD filed their notice
of removal outside the thirty-day time limit established by 28
U.S.C. § 1446(b), which provides as follows:
The notice of removal of a civil action or proceeding
shall be filed within thirty days after the receipt by the
defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which
such action or proceeding is based....
If the case stated by the initial pleading is not
removable, a notice of removal may be filed within thirty days
after receipt by the defendant, through service or otherwise,
of a copy of an amended pleading, motion, order or other paper
from which it may first be ascertained that the case is one
which is or has become removable....
The district court concluded that the defendants' notice of removal
was timely, stating that "the federal question on which defendants
predicate jurisdiction did not appear in the case until January 26,
1993." Leffall claims that the district court applied the
incorrect standard to her original petition; in her view, the
thirty-day clock began when Lewis received the original petition
because the original petition did not disclose that the case was
not removable. For support she relies on Knudsen v. Samuels, 715
See generally 15A CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE
§ 3905.1 (2d ed. 1992).
6
F.Supp. 1505, 1507 (D.Kan.1989), in which the court stated that
"under 28 U.S.C. § 1446(b), the question is not whether the initial
pleading discloses the potential for removal but whether it
discloses that the case is not removable."
We have recently rejected the argument now advanced by Leffall
in Chapman v. Powermatic, Inc., 969 F.2d 160 (5th Cir.1992), cert.
denied, --- U.S. ----, 113 S.Ct. 1402, 122 L.Ed.2d 774 (1993). In
that case, Chapman sued Powermatic, Inc. (Powermatic) in state
court; the petition revealed complete diversity of citizenship
between the parties but did not allege a specific amount of
damages. Id. at 161. More than thirty days later, Chapman
revealed in the course of discovery that he had suffered over
$800,000 in damages, and Powermatic promptly filed a notice of
removal. Id. We rejected Chapman's argument that the thirty-day
removal clock should begin to run when a plaintiff files a pleading
that is indeterminate as to removability if the defendant would
know in the exercise of due diligence that the case is removable.
Id. at 162-63. We stated that the removal clock begins to run
"from the defendant's receipt of the initial pleading only when
that pleading affirmatively reveals on its face that the plaintiff
is seeking damages in excess of the minimum jurisdictional amount
of the federal court." Id. at 163; see also Aaron v. National
Union Fire Ins. Co., 876 F.2d 1157, 1160-61 (5th Cir.1989) (noting
that a defendant may remove a case from state court only when the
complaint reveals on its face that it contains an issue of federal
law), cert. denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028
7
(1990). By the same token, the removal clock began to run in the
instant case only when the defendants received a pleading that
revealed on its face that Leffall was asserting a cause of action
based on federal law.
We find no error in the district court's refusal to remand
Leffall's lawsuit to state court.
B. DISMISSAL FOR FAILURE TO STATE A CLAIM
We begin by reciting the essential elements of a cause of
action brought under 42 U.S.C. § 1983. To state a claim under §
1983, a plaintiff must (1) allege a violation of rights secured by
the Constitution or laws of the United States and (2) demonstrate
that the alleged deprivation was committed by a person acting under
color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct.
2250, 2255, 101 L.Ed.2d 40 (1988); Resident Council of Allen
Parkway Village v. United States Dep't of Hous. & Urban Dev., 980
F.2d 1043, 1050 (5th Cir.), cert. denied, --- U.S. ----, 114 S.Ct.
75, 126 L.Ed.2d 43 (1993). With respect to the DISD, a local
governmental unit under Monell v. Department of Social Servs., 436
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Leffall must also
allege that an "official policy or custom" of the DISD was a cause
in fact of the deprivation of rights inflicted. Id. at 690-91, 98
S.Ct. at 2036; see also Webster v. City of Houston, 735 F.2d 838,
841 (5th Cir.) (en banc) (adopting a definition of "official
policy"), modified on other grounds on reh'g, 739 F.2d 993 (5th
Cir.1984) (en banc). Local governmental units may not be held
liable under § 1983 under a theory of respondeat superior. Monell,
8
436 U.S. at 691, 98 S.Ct. at 2036; Doe v. Taylor Indep. Sch.
Dist., 15 F.3d 443, 452 (5th Cir.1994) (en banc), petition for
cert. filed, 62 U.S.L.W. 3827 (U.S. June 1, 1994) (No. 93-1918).
Likewise, supervisory officials may not be held vicariously liable
under § 1983 for the actions of their subordinates. Doe, 15 F.3d
at 452.
The issue in the instant case is whether Leffall has alleged
sufficient facts to satisfy the first prong of the analysis.
Leffall contends that Lewis and the DISD were under an affirmative
constitutional duty to protect her son from his injury and death,
even though his death was most directly the result of actions taken
by a private actor. First, Leffall argues that a "special
relationship" existed between the DISD and Lewis and her son,
giving rise to a constitutional duty on the part of the state to
protect her son from danger during a school-sponsored, albeit
voluntary, activity. Second, and in the alternative, Leffall
argues that the DISD and Lewis violated a constitutional duty not
to create the hazardous environment encountered by her son on the
night of the school dance. We consider each argument in turn.
1. "Special Relationship"
The beacon guiding our analysis of the "special relationship"
theory espoused by Leffall is the Supreme Court's opinion in
DeShaney v. Winnebago County Dep't of Social Servs., 489 U.S. 189,
109 S.Ct. 998, 103 L.Ed.2d 249 (1989). As in DeShaney, the
plaintiff in the instant case is relying on the substantive
component of the Due Process Clause of the Fourteenth Amendment as
9
the source of the claimed constitutional right; Leffall claims
that the state was categorically obligated to provide Steadham
protection from injury at the school dance, not that the state
denied Steadham protection without according him appropriate
procedural safeguards. See id. at 195, 109 S.Ct. at 1003. As a
general matter, it is well-settled that a state's "failure to
protect an individual against private violence simply does not
constitute a violation of the Due Process Clause." Id. at 197, 109
S.Ct. at 1004.
The DeShaney case concerned a § 1983 action brought by Joshua
DeShaney, a child who was left seriously and permanently retarded
by abuse he suffered at the hands of his father. Id. at 191-93,
109 S.Ct. at 1001. Social service workers in the county where
DeShaney lived with his father were notified on several occasions
that DeShaney was the probable victim of child abuse, and a
caseworker recorded facts she personally observed that led her to
suspect child abuse. Id. at 192-93, 109 S.Ct. at 1001. DeShaney
was not removed from his father's custody, however, until a severe
beating sent him into a life-threatening coma. Id. at 193, 109
S.Ct. at 1001. DeShaney and his mother brought a § 1983 action
against the county's department of social services, contending that
the county's failure to intervene to protect DeShaney had deprived
him of his liberty without due process of law. Id. The Court
rejected this contention, citing the general rule that the Due
Process Clause is not violated by the state's failure to protect an
individual from private violence and concluding that DeShaney had
10
not demonstrated the existence of a special relationship between
the state and himself that would justify exception to the general
rule. Id. at 197-200, 109 S.Ct. at 1004-05.
Although DeShaney failed to bring himself within the special
relationship exception to the general rule that the state has no
constitutional duty to protect individuals from private violence,
Leffall contends that Steadham does fit within that limited
exception. In the words of the DeShaney Court,
when the State by the affirmative exercise of its power so
restrains an individual's liberty that it renders him unable
to care for himself, and at the same time fails to provide for
his basic human needs—e.g., food, clothing, shelter, medical
care, and reasonable safety—it transgresses the substantive
limits on state action set by the Eighth Amendment and the Due
Process Clause.
Id. at 200, 109 S.Ct. at 1005. For instance, the Court has
recognized that substantive due process requires the states to
provide involuntarily committed mental patients with such services
as are necessary to ensure their reasonable safety from themselves
and others. Id. at 199, 109 S.Ct. at 1005 (citing Youngberg v.
Romeo, 457 U.S. 307, 314-25, 102 S.Ct. 2452, 2457-63, 73 L.Ed.2d 28
(1982)). However,
it is the State's affirmative act of restraining the
individual's freedom to act on his own behalf—through
incarceration, institutionalization, or other similar
restraint of personal liberty—which is the "deprivation of
liberty" triggering the protections of the Due Process Clause,
not its failure to act to protect his liberty interests
against harms inflicted by other means.
Id. at 200, 109 S.Ct. at 1006. It has been noted that some courts
have interpreted the phrase "or other similar restraint of personal
liberty" to encompass the relationship between school officials and
11
students. Stephen Faberman, Note, The Lessons of DeShaney:
Special Relationships, Schools & the Fifth Circuit, 35 B.C.L.REV.
97, 110-11 (1993). It is to these cases that we next turn.
Leffall relies on our pre-DeShaney decision in Lopez v.
Houston Indep. Sch. Dist., 817 F.2d 351 (5th Cir.1987), for
support. In Lopez, the § 1983 plaintiff was John Adam Lopez, a
middle school student who was injured during a fight that occurred
on a school bus taking Lopez and other students home after school.
Id. at 352. Lopez sued the bus driver, the Houston Independent
School District (HISD), and other school district officials under
§ 1983. Id. at 353. The district court granted summary judgment
in favor of the HISD, and we affirmed. Id. at 356. We observed
that Lopez could have been proceeding against the HISD under either
of two principal theories: either the HISD had an official policy
of giving its bus drivers inadequate safety training in light of a
pattern of serious disciplinary problems on its school buses, or
the HISD adequately trained its drivers but ignored the widespread
failure of its drivers to follow that training when actual fights
erupted on HISD school buses. Id. at 354. Scrutinizing Lopez's
summary judgment evidence, we concluded that Lopez had failed to
carry his burden under either theory because he failed to show "a
pre-existing pattern of student fights on buses, constituting a
widespread problem mandating an official response." Id. We also
affirmed summary judgment in favor of the individual HISD officials
because the summary judgment evidence could not support a finding
that those officials were deliberately indifferent to the rights of
12
HISD students. Id. at 355.
In Leffall's view, the Lopez court recognized a
constitutionally-imposed duty on the part of the HISD and its
officials not to be callously indifferent to the safety of HISD
students. Significantly, the Lopez court reversed summary judgment
in favor of the bus driver himself, concluding that Lopez raised a
genuine issue of fact as to whether the bus driver was callously
indifferent to the deprivation of Lopez's constitutional rights.
Id. at 355-56. The court did not explain why the bus driver owed
Lopez the duty not to be callously indifferent to private threats
to Lopez's safety, but we may conclude that the court rested this
conclusion on the fact that the driver "was entrusted with the care
of students attending school under Texas' compulsory education
statute." Id. at 356. We can thus discern the following holdings
in the Lopez opinion: (1) a special relationship existed between
the bus driver and the students on his bus such that his deliberate
indifference to student fights could subject him to liability under
§ 1983, (2) the bus driver's supervisors were not liable to Lopez
because Lopez did not show that they trained bus drivers in a
manner deliberately indifferent to students' rights, and (3) the
HISD itself was not liable to Lopez, at least in the absence of
evidence that the HISD had a policy of indifference to student
safety by inadequately training its drivers to deal with student
fights in the face of a widespread problem with such fights.
It is unclear how much of Lopez's rationale survives DeShaney.
See 1 MARTIN A. SCHWARTZ & JOHN E. KIRKLIN, SECTION 1983 LITIGATION: CLAIMS,
13
DEFENSES, AND FEES § 3.3 (2d ed. 1991) (including Lopez in a list of
cases that "are of doubtful validity after DeShaney"); see also
Doe, 15 F.3d at 453, 455-56 (citing Lopez only in support of a
"deliberate indifference" standard for holding supervisors liable
for the actions of their subordinates). In Griffith v. Johnston,
899 F.2d 1427 (5th Cir.1990), cert. denied, 498 U.S. 1040, 111
S.Ct. 712, 112 L.Ed.2d 701 (1991), we considered DeShaney in the
context of § 1983 claims brought by persons who had adopted
children that turned out to have psychological problems and
destructive tendencies. Part of the § 1983 plaintiffs' claim was
that the state of Texas had infringed on the adopted children's
liberty interests prior to their adoption. Id. at 1438-40. We
agreed with the plaintiffs that a DeShaney special relationship
existed between the state and children after the children were
removed from their natural homes and placed under state
supervision, emphasizing that the state affirmative duty to provide
services "stems from the limitation which the state has placed on
the individual's ability to act on his own behalf, and not from the
state's knowledge of the individual's predicament or from its
expressions of intent to help him." Id. at 1439. Thus, once the
children in Griffith were officially adopted under Texas law, the
duty which the state had assumed with respect to the children's
well-being lapsed. Id. at 1440. Because the adoptive parents did
not contend that the children had received anything but exemplary
treatment while in the care of the state, we rejected the
plaintiff's § 1983 claim based on a special relationship. Id. at
14
1439-40.
In de Jesus Benavides v. Santos, 883 F.2d 385, 386-87 (5th
Cir.1989), we confronted a § 1983 claim brought against government
officials in charge of a city jail by jail detention officers who
were injured during an attempted escape. Relying on DeShaney, we
held that the § 1983 complaint based on the jail supervisors'
"callous indifference" or "gross negligence" in failing to protect
the jailers from injury was properly dismissed under Rule 12(b)(6).
Id. at 387-88. We acknowledged that our holding might appear to
provide greater protection for prisoners than for guards, but
concluded that the distinction drawn by the Court in DeShaney
compelled such a result. Id. at 388. The affirmative duty to
protect prisoners, we observed, arises only because the state has,
by an affirmative exercise of power, so restrained the prisoner's
liberty that he cannot care for himself; prison guards and
jailers, on the other hand, are simply employees who are under no
compulsion to submit to unsatisfactory working conditions and may
quit whenever they please. Id.; see also Collins v. City of
Harker Heights, --- U.S. ----, ----, 112 S.Ct. 1061, 1070, 117
L.Ed.2d 261 (1992) (holding that the Due Process Clause does not
guarantee municipal employees a workplace that is free from
unreasonable risks of harm).
Several of our sister circuits have concluded that the
relationship between school district and student is not a special
relationship within the meaning of DeShaney. For instance, the
Third Circuit has concluded that high school students who were
15
sexually assaulted during school hours were not in the physical
custody of the state as is required under DeShaney for a special
relationship to arise, and so affirmed the Rule 12(b)(6) dismissal
of their § 1983 complaint. D.R. by L.R. v. Middle Bucks Area Vo.
Tech. Sch., 972 F.2d 1364, 1368-73 (3d Cir.1992) (en banc), cert.
denied, --- U.S. ----, 113 S.Ct. 1045, 122 L.Ed.2d 354 (1993).
Likewise, the Seventh Circuit has concluded that the state does not
enter a special relationship with students by requiring them to
attend school because it "has not rendered its schoolchildren so
helpless that an affirmative constitutional duty to protect
arises." J.O. v. Alton Community Unit Sch. Dist. 11, 909 F.2d 267,
272 (7th Cir.1990). The Eighth and Tenth Circuits have agreed with
the Third and Seventh Circuits. Dorothy J. v. Little Rock Sch.
Dist., 7 F.3d 729, 732 (8th Cir.1993); Maldonado v. Josey, 975
F.2d 727, 732 (10th Cir.1992), cert. denied, --- U.S. ----, 113
S.Ct. 1266, 122 L.Ed.2d 662 (1993). Indeed, the Tenth Circuit has
gone so far as to hold that a school district cannot be liable for
a tort inflicted on a student by a private actor during school
hours even if its employees knew that the private actor had
threatened the student and was present on school grounds. Graham
v. Independent Sch. Dist. No. I-89, 22 F.3d 991 (10th Cir.1994).
We did not address the question of whether a special
relationship exists in an ordinary public school setting in our en
banc decision in Doe v. Taylor Indep. Sch. Dist. Doe presented an
interlocutory appeal from the district court's denial of summary
judgment on the basis of qualified immunity. Doe, 15 F.3d at 450.
16
The § 1983 plaintiff in Doe brought her lawsuit against one of her
high school teachers, her high school principal, and the high
school superintendent, alleging that the teacher had sexually
molested her and that each of the defendants was liable under §
1983. Id. at 449-50. We concluded that summary judgment in favor
of the superintendent was proper but that summary judgment in favor
of the principal was not. Id. at 457-58. Significantly, our
analysis was conducted entirely in terms of when a supervisory
school official can be held personally liable under § 1983 for a
subordinate's violation of a student's constitutional rights. See
id. at 454 (establishing the three elements necessary to establish
liability on the part of the supervisory official). The Doe
defendants attempted to raise DeShaney in arguing that Doe had
failed to allege a constitutional violation, but we refused even to
consider whether a DeShaney special relationship arises in the
public school context because the issue was wholly irrelevant on
the facts of Doe. Id. at 451 n. 3. The special relationship
doctrine is properly invoked in cases involving harms inflicted by
third parties, and it is not applicable when it is the conduct of
a state actor that has allegedly infringed a person's
constitutional rights. Id. Thus, we neither adopted or rejected
the argument that a DeShaney special relationship arises in the
ordinary public school context; Doe concerned only the proper
scope of school officials' constitutional duties when one of their
subordinates violates a student's rights. See id. at 452 ("Having
concluded that Stroud's physical sexual abuse of Jane Doe violated
17
her constitutional right to substantive due process, we next must
decide whether school officials ... owe any duty to a schoolchild
when a subordinate violates that child's constitutional rights.").
We recently recognized the existence of a special relationship
and distinguished the Third Circuit's decision in D.R. by L.R. in
Walton v. Alexander, 20 F.3d 1350, 1355 (5th Cir.1994), reh'g en
banc granted (5th Cir. July 1, 1994) (No. 93-7313).2 In Walton,
the party in interest was a student at the Mississippi School for
the Deaf who was sexually assaulted by a fellow student. Id. at
1352-53. The student's father brought a § 1983 action against the
superintendent of the school on his son's behalf, and we concluded
that a DeShaney special relationship did indeed exist between the
state and the student. Id. at 1355. The factors that led us to
this conclusion were (1) the school was a boarding school with
twenty-four hour custody of the student, (2) the student was deaf
and lacked the basic communications skills that normal children
possess, (3) the student was obviously not free to leave while he
lived at the school, and (4) economic realities essentially force
most Mississippi families with deaf children to send their children
to the school. Id. In sum, the "residential special education
provided by ... Mississippi has a significant custodial component
wherein Walton was dependent on the School for his basic needs and
lost a substantial measure of his freedom to act." Id.
2
Under Fifth Circuit Local Rule 41.3, the order granting
rehearing en banc in Walton vacates the panel opinion in that
case. We discuss that opinion in full despite the grant of
rehearing en banc because we find it distinguishable on the
facts.
18
The instant case is distinguishable on its facts from Walton.
Lincoln High School is not a school for the disabled, nor is it a
boarding school with twenty-four hour custody of its students.
Even assuming that Steadham was required by Texas law to attend
school at his age, Leffall has not alleged that he was compelled to
attend the dance on the night in question. Thus, we need not go so
far as have some of our sister circuits and conclude that no
special relationship can ever exist between an ordinary public
school district and its students; we conclude only that no such
relationship exists during a school-sponsored dance held outside of
the time during which students are required to attend school for
non-voluntary activities. As the DeShaney Court observed,
[t]hat the State once took temporary custody of Joshua does
not alter the analysis, for when it returned him to his
father's custody, it placed him in no worse position than that
in which he would have been in had it not acted at all; the
State does not become the permanent guarantor of an
individual's safety by having once offered him shelter.
DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006. Likewise, even
though Steadham may have been compelled to attend school during the
day, any special relationship that may have existed lapsed when
compulsory attendance ended. See Griffith, 899 F.2d at 1440
(holding that children are no longer in a special relationship with
the state once they are officially adopted). In sum, we conclude
that the Walton holding is not applicable to the facts presented in
the instant case.
Because no special relationship exists between a school
district and its students during a school-sponsored dance held
outside of the time during which students are required to attend
19
school for non-voluntary activities, the district court did not err
in concluding that Leffall could not state a claim based on a
DeShaney special relationship between the DISD and/or Lewis and
Steadham.
2. State-Created Danger
Leffall contends in the alternative that the DISD and Lewis
violated Steadham's constitutional rights by affirmatively creating
the hazardous environment that Steadham encountered the night of
his death. Some courts have found support for this theory of §
1983 liability in the DeShaney opinion, in which the Court
remarked, "While the State may have been aware of the dangers that
Joshua 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." DeShaney, 489 U.S. at 201, 109 S.Ct. at 1006; see also
Salas v. Carpenter, 980 F.2d 299, 309 (5th Cir.1992) ("Courts have
found a denial of due process when the state creates the faced
danger."). The Seventh Circuit neatly summed up the state-created
danger theory in Bowers v. DeVito, 686 F.2d 616, 618 (7th
Cir.1982), as follows: "If the state puts a man in a position of
danger from private persons and then fails to protect him, it will
not be heard to say that its role was merely passive; it is as
much an active tortfeasor as if it had thrown him into the snake
pit." In Leffall's view, the decision of the DISD and Lewis to
continue to sponsor dances at Lincoln High School after school
hours despite warnings from the Dallas Police Department of the
risk of harm to students attending such dances effectively created
20
a hazardous environment posing an unreasonable risk of harm to all
who attended such dances.
We have found no cases in our circuit permitting § 1983
recovery for a substantive due process violation predicated on a
state-created danger theory, and it could be argued that the
passage from DeShaney quoted above was meant only to describe the
kind of circumstances giving rise to a "special relationship"
between state and individual; for purposes of this case, however,
we may assume without deciding that our court would recognize the
state-created danger theory. We first review the cases from other
circuits relying on this theory. In Wood v. Ostrander, 879 F.2d
583, 590 (9th Cir.1989), cert. denied, 498 U.S. 938, 111 S.Ct. 341,
112 L.Ed.2d 305 (1990), for instance, the court held that a § 1983
plaintiff could survive summary judgment when she had introduced
evidence that a police officer had arrested the driver of a car and
deserted the plaintiff, who was the passenger, in a high crime area
in the middle of night, where she was later sexually assaulted. In
White v. Rochford, 592 F.2d 381, 382-83 (7th Cir.1979), the court
found that the § 1983 plaintiffs, who were small children, had
stated a claim when they alleged that police officers had arrested
their uncle and left them unattended in a car on the side of the
freeway. In L.W. v. Grubbs, 974 F.2d 119, 121-22 (9th Cir.1992),
cert. denied, --- U.S. ----, 113 S.Ct. 2442, 124 L.Ed.2d 660
(1993), the court held that the § 1983 plaintiff had stated a claim
by alleging that she was a registered nurse employed by the state
of Oregon, that her supervisors had directed her to work alone with
21
a known violent sex offender after leading her to believe that she
would not be required to work under such conditions, and that she
had been assaulted by the sex offender once she was alone with him.
Other cases cited by Leffall are to similar effect. See, e.g.,
Dwares v. City of New York, 985 F.2d 94, 98-99 (2d Cir.1993)
(holding that it would violate due process for police officers to
conspire with "skinheads" and sanction violence by skinheads
against persons demonstrating and burning American flags);
Nishiyama v. Dickson County, Tenn., 814 F.2d 277, 282-83 (6th
Cir.1987) (en banc) (holding that a § 1983 complaint stated a claim
by alleging that county officials allowed a convicted felon
"trusty" to drive a patrol car and that the trusty had used the
patrol car to direct a motorist to pull over to the side of the
road, where the trusty murdered her). We note that the First
Circuit has refused to extend the state-created danger doctrine to
a case in which the state provided a van to transport a mentally
ill person and the person injured himself by jumping out of the van
because he was insufficiently restrained. Monahan v. Dorchester
Counseling Ctr., Inc., 961 F.2d 987, 993 (1st Cir.1992) ("Although
the Commonwealth [of Massachusetts] may have played some causal
role in the harm, it did so only because Monahan voluntarily
availed himself of a Commonwealth service.").
Even under the rationale of the cases recognizing a
state-created danger theory of § 1983 liability, it is not enough
to show that the state increased the danger of harm from third
persons; the § 1983 plaintiff must also show that the state acted
22
with the requisite culpability in failing to protect the plaintiff
from that danger to make out a constitutional violation. Although
the Supreme Court has yet to decide precisely what level of
culpability is required as an element of a substantive due process
violation, see Davidson v. Cannon, 474 U.S. 344, 347, 106 S.Ct.
668, 670, 88 L.Ed.2d 677 (1986) ("[T]he Due Process Clause of the
Fourteenth Amendment is not implicated by the lack of due care of
an official causing unintended injury to life, liberty, or
property."), the cases consistently require a § 1983 plaintiff
relying on substantive due process to show that the state actors
are guilty of "deliberate indifference" towards the victim of the
deprivation, e.g., L.W. v. Grubbs, 974 F.2d at 122-23 (holding that
the § 1983 plaintiff alleged facts sufficient to demonstrate
"official deliberate indifference" with respect to a state-created
danger); Manarite v. City of Springfield, 957 F.2d 953, 956 (1st
Cir.) (stating that the "deliberate indifference" standard requires
the plaintiff to show (1) an unusually serious risk of harm
existed, (2) the defendant had actual knowledge, or was willfully
blind to, the elevated risk, and (3) the defendant failed to take
obvious steps to address the risk), cert. denied, --- U.S. ----,
113 S.Ct. 113, 121 L.Ed.2d 70 (1992); Salazar v. City of Chicago,
940 F.2d 233, 238 (7th Cir.1991) ("[O]nly intentional or reckless
conduct violates the due process clause.... By reckless conduct we
mean conduct that is reckless in the criminal sense; that is,
conduct "that reflects complete indifference to risk—when the actor
does not care whether the other person lives or dies, despite
23
knowing that there is a significant risk of death.' " (citations
omitted)); see also 1 SHELDON H. NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES
LITIGATION: THE LAW OF SECTION 1983 § 3.10 (3d ed. Supp.1993)
(observing that "the prevailing rule in the circuits is that
deliberate indifference or reckless disregard is required for
substantive due process violations. Gross negligence is
insufficient."); cf. Doe, 15 F.3d at 454 (holding that a
supervisory school official will be liable under § 1983 when a
subordinate sexually abuses a student only if the supervisory
official demonstrated "deliberate indifference" to the student's
constitutional rights). In Gonzalez v. Ysleta Indep. Sch. Dist.,
996 F.2d 745, 760 (5th Cir.1993), we concluded that a school
district may be held liable for its supervisory failure to prevent
a teacher from sexually molesting a student only if its failure
"manifested a deliberate indifference to the welfare of school
children." Deliberate indifference is perhaps a lesser standard
than we suggested in dicta in Salas, in which we intimated that,
even if we were to recognize a constitutional violation based on a
state-created danger, the conduct by the state would have to be so
extreme as to "shock[ ] the conscience." Salas, 980 F.2d at 309
(holding that law enforcement agents' unsuccessful attempt to
rescue a hostage from her abductor did not violate substantive due
process even if the state actors' conduct was not error-free).
Assuming arguendo that the decision of the DISD and Lewis to
sponsor the dance at Lincoln High School despite their awareness of
the dangers posed thereby was negligent, perhaps even grossly so,
24
we conclude that the conduct of the state actors did not rise to
the level of deliberate indifference, which is, after all, a
"lesser form of intent" rather than a "heightened degree of
negligence." Doe, 15 F.3d at 453 n. 7. This was not a case in
which the state knowingly brought the victim into close proximity
with a specific individual known to be likely to commit violence,
like Grubbs, or abandoned the victim in a highly dangerous
environment, like Wood or Rochford, or conspired with the private
actor who inflicted the deprivation, like Dwares. Nor did the
defendants decide to sponsor the dance with an utter lack of regard
for the safety of the attendees. Leffall admits in her complaint
that the school officials provided two security guards, albeit
unarmed guards, on the night in question, which refutes any
contention that the school officials deliberately ignored the risk
to persons attending the dance. Although the existence of
deliberate indifference is often a "fact-laden question," Doe, 15
F.3d at 456 n. 12, we conclude that Leffall's complaint
affirmatively discloses that the state actors in the instant case
were not deliberately indifferent to Steadham's constitutional
rights, see id. (observing that "good faith but ineffective
responses" by state actors tend to defeat claims of deliberate
indifference).
Although we do not condone the decisions made by the state
actors in this case, we are bound by the principle that "there is
a significant distinction between a tort and a constitutional
wrong." de Jesus Benavides, 883 F.2d at 388. We conclude that,
25
even assuming that substantive due process imposed some duty on the
state to protect Steadham from dangers arising out of sponsorship
of the dance at Lincoln High School, Leffall failed to allege a
violation of Steadham's due process rights in her complaint because
she did not allege facts that demonstrated deliberate indifference
to those dangers on the part of the state actors.
C. MOTION TO AMEND
Finally we consider the propriety of the district court's
denial without explanation of Leffall's motion for leave to amend.
Leffall filed her motion within two months of removal of the case
to federal court, before any meaningful adjudication of any issue
in her suit, so we may conclude that the court's denial of her
motion was not based on untimeliness or undue prejudice to the
opposing parties. It appears likely that the district court viewed
the amendment as futile in light of its decision that Leffall had
failed to state a cognizable federal claim, and we proceed to
evaluate her proposed amendment on that assumption.
In her second and third amended complaints, Leffall added
greater specificity to the factual allegations made in her first
amended complaint and added a new cause of action based on state
warranty law. She did not allege any new theories of recovery
under § 1983 or any other federal law. Again she relied solely on
the decision of Lewis and the DISD to sponsor the dance at Lincoln
High School with inadequate security in place as the state action
causing the alleged deprivation of Steadham's rights. In sum,
again assuming that DeShaney permits recognition of a substantive
26
due process right to be free from state-created dangers of this
kind absent a special relationship, nothing in the proposed amended
complaints alters our conclusion, see supra part III.B, that
Leffall failed to allege facts establishing deliberate indifference
on the part of the defendant state actors towards the safety of
those attending the dance.
We find no error in the court's denial of Leffall's motions
for leave to amend.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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