David Monn, et al v. Gettysburg Area School Distri, et al

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, HARDIMAN and GREENAWAY JR., Circuit Judges. Total Pages: 5. Judge: AMBRO Authoring.

Case: 13-2730

Document: 003111512199

Page: 1

Date Filed: 01/21/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 13-2730
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DAVID and ROBYN MONN,
Individually and as the parents of B.M.
a minor, MICHAEL and JULIE FAUTH,
Individually and as the parents of L.F.
a minor and BRAD and JACKIE ADAMS,
Individually and as the parents of A.A. a minor,
Appellants
v.
GETTYSBURG AREA SCHOOL DISTRICT;
JAMES O’CONNOR; STEVE LITTEN; LAWRENCE REDDING;
SHEVELLE C, (last name withheld) in her own right and as the
Mother of K.C., a minor; K.C., a minor; and Ms. A. in her own right and as the
Mother of K.A., a minor
________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 1-12-cv-02085)
District Judge: Honorable William W. Caldwell
________________
Submitted Under Third Circuit LAR 34.1(a)
January 13, 2014
Before: AMBRO, HARDIMAN, and GREENAWAY, Jr., Circuit Judges
(Opinion filed: January 21, 2014)

Case: 13-2730

Document: 003111512199

Page: 2

Date Filed: 01/21/2014

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OPINION
________________
AMBRO, Circuit Judge
This case involves bullying at a middle school. As with other bullying cases we
have confronted, we are sympathetic to the plight of the student victims. However,
without any allegation of action by the School District, the case falls squarely within our
binding precedent and requires that we affirm the District Court.
I. FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff-appellants are three minor children and their parents. The defendantappellees are the Gettysburg Area School District; Larry Redding, the District
superintendent; and James O’Connor and Steven Litten,1 two principals at Gettysburg
Area Middle School (collectively, the “District”).2
The appellants allege that the three minor-appellants were bullied and injured at
the Middle School. They claim that although the parent-appellants notified the District
about the bullying, no action was taken to prevent future harassment. The appellants
assert that the District “sometimes criticized and belittled them to deflect their
responsibilities to supervise and curtail the misconduct of the minor defendants.”
1

As the District Court noted, Steven Litten’s last name is spelled “Litton” in the
Complaint. We will use the correct spelling of his name.
2

Also named as defendants are Shevelle C., in her own right and as the mother of K.C., a
minor; K.C., a minor; and Ms. A., in her own right and as the mother of K.A., a minor.
For some reason, K.A. is not a defendant. K.A. and K.C. are alleged to be the minors that
bullied the minor-appellants. These defendants did not move to dismiss and are not the
subject of the current appeal.
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Appellants’ Br. At 7. As a result of the District’s inaction, the minor-appellants suffered
additional injuries.
The appellants asserted claims under 42 U.S.C. § 1983 for violations of the First,
Fourth, and Fourteenth Amendments, as well as a number of state law claims. The
District Court dismissed the federal claims and this appeal followed.3 We have
jurisdiction under 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
Our review of a district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6) is plenary. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d
159, 163 (3d Cir. 2010). “Under Rule 12(b)(6), a motion to dismiss may be granted only
if, accepting all well-pleaded allegations in the complaint as true and viewing them in the
light most favorable to the plaintiff, a court finds that plaintiff’s claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
Although we must accept the allegations in the complaint as true, “we are not compelled
to accept unsupported conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)
(internal quotation marks and citations omitted).
III. DISCUSSION
A. First Amendment Retaliation Claim

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The appellants have not challenged the District Court’s dismissal of their Fourth
Amendment claim and have not addressed the state law claims. Therefore, we as well do
not address them.
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To plead a First Amendment retaliation claim, a plaintiff must allege, among other
things, “retaliatory action sufficient to deter a person of ordinary firmness from
exercising his constitutional rights. . . .” Thomas v. Independence Twp., 463 F.3d 285,
296 (3d Cir. 2006) (emphasis added) (citing Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003)).4 Allegations of inaction are insufficient to maintain a claim for retaliation. See
Kaucher v. County of Bucks, 455 F.3d 418, 433 n.11 (3d Cir. 2006) (“[F]ailures to act
cannot form the basis of a valid § 1983 claim.”). In this case, the appellants allege only
inaction—that the District ignored or rebuffed their requests for assistance. Therefore,
the District Court correctly dismissed the retaliation claims for failure to plead some
retaliatory action by the District.5
B. Fourteenth Amendment Claims
The appellants contend that the District violated their substantive and procedural
due process rights under the Fourteenth Amendment. We affirm the dismissal of both
claims.
The substantive due process claim was properly dismissed. “Generally, the Due
Process Clause does not impose an affirmative duty upon the state to protect citizens

4

A plaintiff must also allege “constitutionally protected conduct” and “a causal link
between the constitutionally protected conduct and the retaliatory action.” Thomas, 463
F.3d at 296. However, because the appellants do not allege any retaliatory action, we
need not analyze these additional elements.
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The appellants argue in passing that they should have been granted leave to amend or
discovery. However, they never sought discovery. As for leave to amend, the District
Court was correct that amendment would be futile because the District’s inaction was a
substantive shortcoming that could not be pled around. See Fletcher–Harlee Corp. v.
Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
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from the acts of private individuals.” Sanford v. Stiles, 456 F.3d 298, 303-04 (3d Cir.
2006) (citing DeShaney v. Winnebago Cnty. Dep’t. of Soc. Servs., 489 U.S. 189, 198-200
(1989)). Here, the appellants do not allege affirmative acts, but only that the District did
not act to prevent bullying by private individuals. Although there are two exceptions to
the affirmative act requirement—when there is a “special relationship” between the
plaintiff and the state, and when there is a “state-created danger”—we recently clarified
in a substantially similar case that neither exception applies to cases such as this one. See
Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc).
The District Court was also correct to reject the procedural due process claim. A
complaint asserting a procedural due process claim must allege (1) a deprivation of an
interest “encompassed within the Fourteenth Amendment’s protection of life, liberty, or
property;” and (2) that “available procedures did not provide due process of law.” Ass’n
N.J. Rifle & Pistol Clubs v. Governor of N.J., 707 F.3d 238, 240 (3d Cir. 2013) (internal
quotation marks and citation omitted). Critically, the deprivation of the protected interest
must be attributable to the District, not a private actor. See Phila. Police & Fire Ass’n for
Handicapped Children, Inc. v. City of Philadelphia, 874 F.2d 156, 169 (3d Cir. 1989).
Here, the appellants claim that the bullying children were depriving the minor-appellants
of liberty and property interests in their education and bodily integrity. However, these
actions by private individuals, not the District, are insufficient to give rise to a procedural
due process claim.
We thus affirm the District Court.

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