BRANCH et al v. CHRISTIE et al

Filing 47

OPINION. Signed by Judge John Michael Vazquez on 1/8/18. (DD, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VERONICA BRANCH, INDIVIDUALLY AND
ON BEHALF OF MINORS S.W. AND S.W, et
al,
Civil Action No. 16-2467 (JMV) (MF)
Ftaintiffl,
OPINION
V.

CHRIS CHRISTIE et al,

Defendants.

John Michael Vazguez, U.S.D.J.
This case comes before the Court on two motions to dismiss, one filed by Defendants Chris
Christie, Christopher Cerf, Cami Anderson, Mark W. Biedron, Joseph Fisicaro, Arcelio Aponte,
Ronald K. Butcher, Jack Fornaro, Edithe Fulton, Ernest P. Lepore, Andrew J. Mulvihull, J. Peter
Simon, and Dorothy S. Strickland (collectively “State Defendants”), and one filed by the Newark
City School District and Keith Barton (collectively “School Defendants”). D.E. 40, 42. In this
class action, Plaintiffs essentially attempt to style a toxic tort case as constitutional violations.
However, the law does not support such a theory. Moreover, even if the law did recognize
Plaintiffs’ theory, Plaintiffs’ Amended Complaint falls well short of the federal pleading
requirements.
The Court reviewed the parties’ submissions, and decided the motion without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons set forth below,
both the State Defendants’ motion and the School Defendants’ motion are GRANTED.

I.

Background & Procedural History

The following facts are taken from the Amended Complaint (hereinafter “Amended
Complaint” or “Am. Compi.”). D.E. 33. Plaintiffs are parents of children who attend Newark
public schools. Am. Compl. at ¶28, 46, 64, 82, 101. They allege that Defendants knowingly
exposed the children, along with “thousands” of other Newark students, to water that was
contaminated with unsafe levels of lead. Id. at ¶J30, 38. Plaintiffs claim that Defendants have
been aware of the contamination since March 2011. Id. at ¶120. Plaintiffs further allege that after
the contamination was discovered, Defendants “concocted a scheme to cover up the health hazard,
not disclose these dangers to the parents, and provide themselves with bottled water.” Id. at ¶31.
Plaintiffs add that Defendants failed to monitor the lead levels in the water or do basic maintenance
of the lead filters on the water fountains. Id. at ¶J33-35. According to Plaintiffs, the filters are
supposed to be changed after six months of use, but rather than change them, Defendants “canceled
work orders to change outdated and lead-saturated filters,” allowing “several” filters to be used for
upwards of five years. Id. at ¶J35-36. Plaintiffs allege that the children have “tested positive for
lead” and now “experience the common symptoms associated with the consumption of lead by
children” which include “dizziness, inability to focus, hyper activity, developmental delays, and
gastrointestinal issues.” Id. at ¶J43, 61, 79, 98, 117.
Plaintiffs state that in 2016, “the public was advised that there were unacceptable levels of
lead in the water at Newark Schools,” but Defendants “undertook a course of.

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provid[ing]

misinformation to parents,” telling the community that the water was safe. Id. at ¶J131-132.
Plaintiffs cite a test that measured lead in 15% of the Newark schools. Id. at ¶134. The Amended
Complaint does not indicate when the test was conducted, by whom, or which facilities were tested.
Plaintiffs also allege that Defendants deliberately impeded parents from getting their children

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tested for lead poisoning, and that Defendants have not taken any steps to remediate the lead in the
water. Id. at ¶Jl36, 139. As to the testing, Plaintiffs complain that it is conducted at locations “far
away” from the schools, but do not indicate where the testing occurred. Id. at ¶136, It appears
that the testing was done elsewhere in Essex County, New Jersey. Id. at ¶137.
Plaintiffs have brought several claims against Defendants as part of a proposed class action.

ía.

at ¶Jl42-184. Count I is for a violation of Plaintiffs’ constitutional right to substantive due

process brought under 42 U.S.C. §1983, as is Count II. Id. at ¶1 85-204. Count I is brought under
a state-created danger theory, and Count Ills brought under a violation of bodily autonomy theory.
Id.

Count III is for negligence and gross negligence, Count IV is for negligent infliction of

emotional distress, Count V is for intentional infliction of emotional distress. Id. at ¶ffl]205-223.
Count VI requests injunctive relief. Id. at ¶J224-227. Count VII is for a declaratory judgment that
Plaintiffs’ constitutional rights have been violated. Id. at ¶228-230.
Plaintiffs filed their initial Complaint on May 2, 2016. D.E. 1. They amended their
complaint on November 29, 2016. D.E. 33. Both the State Defendants and the School Defendants
filed motions to dismiss on December 27, 2016. D.E. 40, 42. Plaintiffs filed their opposition to
both motions on January 23, 2017. D.E. 43, 44. Both the State and School Defendants filed their
replies on January 30, 2017. D.E. 45, 46.
II.

Standard of Review

Both the State and School Defendants bring motions to dismiss under fed. R. Civ. P. 12(b)(1),
for lack of federal subject matter jurisdiction, and l2(b)(6), for failure to state a claim on upon
which relief can be granted.

Defendants also contest the facts alleged in the Amended Complaint, e.g., School Defendants’
Reply Brief, D.E. 46, at pg. 4. Defendants claim that the lead issue did not become apparent
until 2016 as opposed to 2011. The Newark Defendants add that the lead issue has since been
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A. 12(b)(1)

In deciding a Rule 12(b)(1) motion to dismiss, a court must first determine whether the
party presents a facial or factual attack because that distinction determines how the pleading is
reviewed. See Mortensen v. First Fed. Say. & Loan Ass ‘n, 549 F.2d 884, 891 (3d Cir. 1977). “A

facial attack concerns an alleged pleading deficiency whereas a factual attack concerns the actual
failure of a plaintiffs claims to comport factually with the jurisdictional prerequisites.” Young v.
United States, 152 F. $upp. 3d 337, 345 (D.N.J. 2015). Here, Defendants assert the defense of
sovereign immunity based on the pleadings, thereby raising a facial attack. See Perez v. New
Jersey, 2015 WL 4394229, at *3 (D.N.J. July 15, 2015).
B. 12(b)(6)
For a complaint to survive dismissal under Rule 12(b)(6), it must contain sufficient factual
matter to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible
“when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. Further, a plaintiff must “allege
sufficient facts to raise a reasonable expectation that discovery will uncover proof of her claims.”
Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). In evaluating the sufficiency of

a complaint, district courts must separate the factual and legal elements. Fowler v. UPMC
Shadyside, 57$ F.3d 203, 210-211 (3d Cir. 2009). Restatements of the elements of a claim are
legal conclusions, and therefore, not entitled to a presumption of truth. Burtch v. Milberg Factors,

abated. However, the Court cannot determine the truth of these statements without going beyond
the face of the Amended Complaint, which is not appropriate at the motion to dismiss stage. See
Fowler, 578 F.3d at 210. As a result, the Court does not consider Defendants’ assertions
concerning the alleged facts.
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Inc., 662 f.3d 212, 224 (3d Cir. 201 1). The Court, however, “must accept all of the complaint’s
well-pleaded facts as true.” fowler, 578 F.3d at 210. Even if plausibly pled, however, a complaint
will not withstand a motion to dismiss if the facts alleged do not state “a legally cognizable cause
of action.” Turner v. IF. Morgan Chase & Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J.
Jan. 23, 2015).

Analysis

III.

The State Defendants argue that the Plaintiffs do not have standing to bring this case, as
they cannot show a concrete injury as a result of the conduct alleged. They also argue that the
State Defendants are entitled to sovereign immunity under the Eleventh Amendment as state
officials, or in the alternative, that they are entitled to qualified immunity in their individual
capacities for their alleged actions because the Plaintiffs have not sufficiently pleaded a violation
of a clearly established constitutional right. The School Defendants add that because there is no
respondent superior liability under Section 1983, Defendant Barton cannot be sued even as an

individual.
Plaintiffs reply that the lead testing and alleged injuries are enough to provide them with
standing. They also allege that Defendants have been charged in their individual, not official
capacities, with the exception of Governor Christie. Plaintiffs also argue that they have clearly
pleaded a violation of a clearly established constitutional right to bodily integrity that was violated
by a state-created danger. They allege Newark Public Schools are not arms of the state, rather they
are municipal entities that are represented by private counsel, rather than the Attorney General’s
Office. They also argue that Defendant Barton had direct involvement in the alleged scheme,
making him individually liable under Section 1983.

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A. Plausibility of Allegations

Mere “conclusory allegations against [d]efendants as a group” which “fail to allege the
personal involvement of any [d]efendant” are insufficient to survive a motion to dismiss. Gaticki
v. New Jersey, 2015 U.S. Dist. LEXIS 84365, at *8 (D.N.J. June 29, 2015). Plaintiff must allege

facts that “establish each individual [d]efendant’s liability for the misconduct alleged.” Id. When
a number of different defendants are named in a complaint, plaintiff cannot refer to all defendants
“who occupied different positions and presumably had distinct roles in the alleged misconduct”
without specifying “which [d]efendants engaged in what wrongful conduct.” Falat v. County of
Hunterdon, 2013 U.S. Dist. LEXIS, at *12 (D.N.J. Mar. 19, 2013) (emphasis in original).
Otherwise, a Complaint that contains “impermissibly vague group pleading” will be dismissed.
Id. at *11.

Plaintiffs fail to make the requisite distinctions. Other than in the section labelled “B.
Defendants,” Plaintiffs do not differentiate between the fifteen named Defendants, all of whom
perform very different functions.
collectively.

Instead, the Amended Complaint refers to the Defendants

See, e.g., Am. Compi. at ¶J31, 33, 35, 37, 39, 44. Even when describing each

individual Defendant, the Amended Complaint does no more than make conclusory allegations
concerning each Defendant’s alleged wrongdoing. Id. at ¶J8-22. Finally, when the Amended
Complaint does refer to only “NPS, Barton, Anderson, and Cerf’ (rather than all Defendants), it
again makes conclusory allegations as to all four collectively. Id. at ¶J24-25. The Amended
Complaint fails to set forth plausible allegations as to the alleged wrongdoing of any particular
Defendant. For this reason alone, the Amended Complaint is not properly pled and will be
dismissed.

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However, the Amended Complaint also fails the plausibility requirement for other reasons.
For each set of Plaintiffs (parents and children), the Amended Complaint makes identical
substantive allegations with the exception of changing the names of the parties. Id. at ¶j45-11$.
The Amended Complaint does not allege, much less plausibly allege, any of the following facts:
which public schools the children attended, when the children attended the schools, how often the
children were exposed to the water, whether the children drank from the “several” faucets that had
outdated filters, when the children’s alleged symptoms started, or when the children were tested
for lead poisoning. The alleged symptoms of each child are also identical. It is also unclear where
the alleged lead filters were, how many there were, and how many were not changed. The
Amended Complaint only refers to “several” such drinking fountains. As to the allegations
concerning testing, Plaintiffs do not state which facilities were tested, whether Plaintiff were
related to the facility, by whom the tests were conducted, or when the tests occurred. Plaintiffs
alleged that they were “misinformed” about the lead in the water, but they cite no specifics about
what information they were given, and whether and how it was incorrect. Moreover, they do not
state when the misinformation was disseminated, by whom, and to which Plaintiffs.
For the foregoing reasons, the Amended Complaint is dismissed for failing to set forth
plausible allegations.
B. Eleventh Amendment Immunity

The Eleventh Amendment provides that “[t]he judicial power of the United States shall not
be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any foreign State.” U.S.
Const. amend. XI.

The Eleventh Amendment protect states, as well as their agencies and

departments, from suit in federal court. Fennhurst State Sc/i. & Hosp.

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V.

Halderman, 465 U.S. $9,

100 (1984). However, sovereign immunity does not extend to counties and municipalities. Mt.
Healthy City 3d. of Educ. v. Doyle, 429 U.S. 274, 280 (1977); Botden v. Soittheastern Pa. Transp.
Auth., 953 F.2d 807, 813-14 (3d Cir. 1991).

This immunity also extends to state employees acting in their official capacities. See
Pennhttrst, 465 U.S. at 101. Thus, the State Defendants seek dismissal of the charges against them

in their official capacities. Plaintiffs assert that Defendants have all been sued in their individual
capacities, with the exception of Governor Christie. However, the Amended Complaint charges
the Defendants in both “their individual and/or official capacities.” Am. Compl. at ¶7. To the
extent Plaintiffs attempt to charge individual Defendants in their official capacities, those claims
are dismissed. Plaintiffs further claim that it is appropriate to sue Governor Christie in his official
capacity for prospective relief under Ex Parte Young. Yet, the matter is dismissed as to Governor
Christie for the plausibility deficiencies noted above. In addition, as is discussed below, all
Defendants are entitled to qualified immunity.
As noted, Eleventh Amendment immunity generally does not apply to counties or
municipalities. Nonetheless, in some circumstances, such entities may be viewed as “arms of the
State partaking of the State’s Eleventh Amendment immunity.” Mt. Healthy, 429 U.S. at 280; see
also Benn v. First Jttdicial Dist. ofPa., 426 F.3d 233, 239 (3d Cir. 2005) (“[A] suit maybe barred
by the Eleventh Amendment even though a state is not named a party to the action, so long as the
state is deemed to be the real party in interest”). To determine whether an entity is an “ann of the
state,” courts look to three factors: “(1) whether the money that would pay the judgment would
come from the state

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(2) the status of the agency under state law

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and (3) what degree of

autonomy the agency has.” Fitchik v. New Jersey Transit Rail Operations, Inc., 873 F.2d 655, 659

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(3d Cir. 1989). Since sovereign immunity is an affirmative defense,2 the burden of demonstrating
the immunity ties on the party asserting it. See Carter v. City ofFhila., 181 F.3d 339, 347 (3d Cir.
1999).
Here, the School Defendants contend that they qualify as arms of New Jersey, entitling
them to immunity. Even if the state itself is not named in the Amended Complaint, the Court must
determine whether the state is the “real party in interest.” Fitch 1k v. New Jersey Transit Rail
Operations, Inc., $73 f.2d 655, 658 (3d Cir. 1989). The School Defendants rely on two cases
decided in this District: Denkins v. State Operated School District ofCamden, 2016 WL 6683541,
at *4 (D.N.J. Nov. 14, 2016) (finding that the Camden City school district was an ann of the state,
although “[g]enerally school boards are not considered to be state agencies”); Camden Cly.

Recovery Coalition v. Camden City 3d. Of Educ., 262 F.Supp.2d 446, 449 (D.N.J. 2002) (ruling
that the Camden City School Board was an aim of the state given that the “vast majority” of their
funding came from the state).
The Third Circuit in Fitchik set forth three factors that courts can weigh to determine
whether or not a lawsuit “against an entity is actually a suit against the state itself.” Fitch ick, $73
F.2d 659. The court there expanded the three factors with certain questions including: “whether
the agency has the money to satisfy the judgment” and “how state law treats the agency.” Id. The
Amended Complaint does allege that the since “1995, the State has sought, obtained, and exercised
exclusive control over the Newark School System.” Am. Compi. ¶8. So this allegation inures to
the benefit of the School Defendants, that is, they are an arm of New Jersey. Yet, the School

Although it is an affirmative defense, sovereign immunity can be considered at the motion to
dismiss stage. If an insufficient showing is made, a court can revisit the issue at the summary
*4 (D.N.J. Dec.
judgment stage. See Sharp v. Kean Unñ, Civ. No. 14-423, 2014 WL 6908775, at
8, 2014).
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Defendants also ask the Court to take judicial notice of certain facts, including the percentage of
the district’s funding supplied by the state as well as the level of state control, to conclude that the
Newark district is an ann of the state. Defendants’ Reply Brief, D.E. 46, at pg. 3. However, such
facts are not subject to judicial notice and instead must be proven. Ordinarily, the Court would
hold an evidentiary decision before deciding this question, but since the Court is dismissing for
other reasons, it does not reach this issue.3
C. Section 1983

42 U.S.C.

§ 1983 provides in relevant part as follows:

Every person who, under color of any statute, ordinance, regulation,
subjects, or causes to be
custom, or usage, of any State or Territory
citizen of the United States or other person within the
subjected, any
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress[.]
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Section 1983 does not provide substantive rights; rather, it provides a vehicle for
vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94 (1989).
In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a violation
of a right secured by the Constitution or laws of the United States and, second, a plaintiff must

In their Opposition, Plaintiffs contradict the facts plead in the Amended Complaint, arguing
that the State only has “pedagogical interest in the school system,” while at the same time
alleging that the maintenance and facility management of the schools is somehow separate and
not controlled by the State. See Plaintiffs Opposition to Newark Public School Defendants’
Motion to Dismiss, D.E. 43, at p. 10-11. Plaintiffs claim that the State’s interest concerns only
the “educational” aspect of the Newark’s schools. Plaintiffs further assert that “the maintenance
of the facilities, including changing filters, ordering enough filters, and cancelling work orders
is not within the purview ofthe State’s involvement in the pedagogical interest in
for filters
the school system.” Id. (emphasis added). Plaintiffs add that there has been “no evidence that
the State in whole or part, controls, funds, or in any way directs Defendant Barton, the facilities
department, or maintenance of the drinking water at the schools.” Id. at 11. Thus, Plaintiffs
appear to be admitting that their entire case as to the State Defendants should be dismissed
because the water system in the school is not within the State’s responsibilities. This argument is
the exact opposite of what the Plaintiffs assert in the Amended Complaint. The Court is at a loss.
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contend that the violation was caused or committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
State officials acting in their official capacities are also immune from suit under Section
1983, as they are not “persons” within the meaning of the statute. See Will v. Michigan Dept. of
State Police, 491 U.S. 58, 65 (1989). As a result, the claims against the State Defendants in their
official capacity are also dismissed for this reason. However, plaintiffs can sue state officials in
their official capacity for prospective, or forward-looking, injunctive relief to remedy an ongoing
violation of federal law. See Lx Parte Young, 209 U.S. 123 (1908). The Ex Parte Young issue is
addressed below.
Municipalities may be liable under Section 1983 if a plaintiff can show the violation of his
rights was caused by a municipal policy, practice, or custom.

Monell v. Dep ‘t of Soc. Sen’s. of

NYC. 436 U.S. 658, 690-91 (1978). Yet, Section 1983 claims cannot be brought under a theory

of respondeat superior, or supervisory liability. Polk County V. Dodson, 454 U.S. 312, 325 (1981).
Rather, when alleging that a supervisor is liable, Plaintiff bears the burden of showing “personal
involvement in the alleged wrongs

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[which] can be shown through allegations of personal

direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207
(3d Cir. 1988).
Importantly. defendants in a Section 1983 suit are also entitled to qualified immunity.
“Qualified immunity shields government officials from personal liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Paszkowski v. Roxbuiy Twp. Police Dep ‘t, No. 13-7088,
2014 WL 346548, at *2 (D.N.J. Jan. 30, 2014) (emphasis added). A court must engage in a two
part inquiry to determine whether qualified immunity applies: (1) “whether the allegations, taken

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in the light most favorable to the party asserting the injury show the [defendant’s] conduct violated
a federal right;” and (2) “whether the law was clearly established at the time of the violation.”
Ihienfeld v. Darby Borough Police Dep ‘t, No. 16-01990, 2017 WL 132169, at *6 (E.D. Pa. Jan.

13, 2017). “The defendant has the burden of establishing qualified immunity.” Id. The Supreme
Court has ruled that the “contours of the right must be sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Saucier v. Katz, 533 U.S. 194, 202
(2001).
As to the Section 1983 claims, the Court finds two deficiencies. First, Plaintiffs allege that
there was a policy, practice, or custom that led to the alleged harms. See, e.g., Am. Compl. ¶24.
Aside from this conclusory allegation, the Amended Complaint fails to plausibly assert facts in
support. The same is true of claims based on the fact that Defendants, in a supervisory role, had
personal involvement in the alleged wrongs either through personal direction or with actual
knowledge and acquiescence.

In sum, besides the plausibility deficiencies noted above, the

Amended Complaint also does not plausibly plead facts to support these allegations.
Second, and more importantly, Plaintiffs have failed to show a violation of a clearly defined
constitutional right. As such, Defendants are entitled to qualified immunity. While a plaintiff does
not have to cite a “case directly on point,” “existing precedent must have placed the statutory or
constitutional question beyond debate.” Collins v. City ofHarker Heights, Tex., 503 U.S. 115, 125
(1992). Substantive due process under the Fourteenth Amendment is a very limited right, and
courts have been reluctant to expand it. Id.

Of particular concern is allowing a plaintiff to

constitutionalize what are essentially state tort claims. Id. at 128. Plaintiffs here argue two theories
of constitutional violations under the Fourteenth Amendment’s due process protection: state
created danger and a violation of bodily integrity.

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As to the state-created danger theory, the government generally has no affirmative duty
under the Fourteenth Amendment to protect a citizen unless they are in state custody. Bright v.
Westmoreland County, 443 f.3d 276, 281 (3d Cir. 2006). However, if “state authority is
affirmatively employed in a manner that injures a citizen,” or “renders him ‘more vulnerable to
injury from another source than he or she would have been” in the absence of state intervention,
plaintiffs may bring a Fourteenth Amendment substantive due process claim under a theory of
“state created danger.” Id. The elements of such a claim are that:
1. the harm ultimately caused was foreseeable and fairly direct;
2. the 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 defendant’s acts’
or a ‘member of a discrete class of persons subject to the
potential harm brought about by his 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.
Id.
In other words, failure to act is not cognizable under the state-created danger theory
(unless the plaintiff was in custody at the time). Instead, the state actor must engage in some
affirmative act that changes the status quo that either resulted in danger or increased danger to
the plaintiff. The Third Circuit in Bright did “acknowledge[] that the line between action and
inaction may not always be clear,” but went on to state that “we have never found a state-created
danger claim to be meritorious without an allegation and subsequent showing that state authority
was affirmatively exercised.” Bright, 443 F.3d at 282.
The liberty interest in bodily integrity guarantees the “right generally to resist enforced
medication,” the right to be “free from medical invasion,” and the right to an abortion. See
Washington v. Glucksberg, 521 U.s. 702, 777 (1997). Moreover, the current matter is akin to that
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of Dorle v. South Fayette Tp. School Dist., 129 F.Supp.3d 220, 231 (W.D.P.A. 2015), in that the
state-created danger theory is essentially based on the same allegations as the bodily integrity
theory. Both are based on the lead in the Newark schools’ water and the related allegations.
In a successful state-created danger case, the Third Circuit reversed the district court’s
grant of defendant’s motion to dismiss, finding that plaintiff had sufficiently plead affinnative acts
on behalf of two named defendants. Philips v. County ofAllegheny, 515 F.3d 224 (3d Cir. 200$).
There, the decedent’s estate brought suit against the 911 call center that employed her son’s
murderer, Michael Michalski. Michalski’s two government co-workers had supplied him with
information on the victim’s whereabouts, knowing that it was unlawful for them to do so. Id. at
229. When Michalski called the two co-workers the next day and threatened the decedent’s life,
they made no effort to warn the victim, or the two others Michaiski killed, that they might be in
danger. Id. Again, the Third Circuit found that the two defendants had done something that
affirmatively created a situation that placed the victims in danger.
The case Plaintiffs cite to, L.R. v. Sch. Dist. of Philadelphia, is inapposite. $36 F.3d 235
(3d Cir. 2016). There, the defendant was a kindergarten teacher who released a student to a woman
who was a complete stranger, without asking to see identification or verification that the child was
allowed to leave the school, which was in direct violation of school policy. Id. at 239-40. The
woman took the student from school and later sexually assaulted her. Again, as in Kniepp and
Philips, the state actor—the teacher— affirmatively created the situation that lead to the alleged

injuries. Here, Plaintiffs have failed to allege this type of affirmative conduct.
Plaintiffs cite to no cases that support their theory, as pled, of either state-created harm of
violation of bodily integrity. The Court also could not find any authority. To the contrary,
substantive due process has been found not to guarantee a safe working environment or a right to

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minimum levels of safety in certain arenas. See, e.g. collins v. City ofHarker Heights, Tex., 503
U.s. 115 (1992), Searles v. Southeastern Pennsylvania Transp. AuthorTh’, 990 F.2d 789 (3d Cir.

1993). At best, it is unclear whether Plaintiffs’ alleged facts regarding lead in the drinking water
would constitute a constitutional violation. In fact, there are several cases suggesting that they do
not. However, the mere fact that the constitutional rights are unclear means that the Defendants
are entitled to qualified immunity under the second prong of the analysis.
Because Defendants are entitled to qualified immunity, the Section 1983 claims along with
the injunctive relief claim derived from Section 1983 are dismissed with prejudice.
D. Declaratory Judgment Act

The Declaratory Judgment Act does not confer subject matter jurisdiction on federal courts;
there must be an independent basis of federal subject matter jurisdiction to obtain a remedy under
the Act. Allen v. DeBello, 861 f.3d 433, 444 (3d Cir. 2017). As discussed above, the Court no
longer has subject matter jurisdiction over this case since the federal claims have been dismissed.
As a result, Count VII is dismissed.
F. Remaining State Law Claims

federal district courts have supplemental jurisdiction over state law claims related to those
brought under federal statutes. 28 U.S.C.

§ 1367(a). The court can, in its discretion, decline to

exercise supplemental jurisdiction if it has dismissed the claims over which it had original
jurisdiction. 29 U.S.C. §1367(c)(3). As discussed above, the federal claims have been dismissed,
and so the Court declines to exercise its supplemental jurisdiction over the remaining state law
claims. Thus, Counts III, IV, and V are dismissed without prejudice.

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IV.

Conclusion

For the reasons stated above, the State Defendants’ motion is GRANTED, and the School
Defendants’ motion is GRANTED. An appropriate Order accompanies this Opinion.

Dated: January 8th, 2018

John Michael VazqueJ.LD.J.

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