Matthews v. Abington Heights School District

Filing 41

MEMORANDUM (Order to follow as separate docket entry) re 22 Amended Complaint filed by Christopher Mathews, Kerry Mathews, 24 MOTION to Dismiss Second Amended Complaint filed by Abington Heights School District. For the foregoing r easons, the defendants motion to dismiss (Doc. 24) will be granted and the second amended complaint (Doc. 22) will be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The clerk will be directed to mark this case as closed.An appropriate order follows. Signed by District Judge Joseph F Saporito, Jr on 3/11/25. (ms)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTOPHER MATHEWS and
KERRY MATHEWS, individually,
and as parents and natural
guardians of George Mathews, and
GEORGE MATHEWS, in his own
right,
Plaintiffs,

CIVIL ACTION NO. 3:22-CV-00959

v.

(SAPORITO, J.)

ABINGTON HEIGHTS SCHOOL
DISTRICT,
Defendant.
MEMORANDUM
This is a federal civil rights action, initially brought by the
plaintiff ’s parents, Christopher and Kerry Mathews, on behalf of their
child, George Mathews, the plaintiff. 1 Appearing through counsel, the
plaintiff commenced this action by filing a complaint in state court on

1 George Mathews was a minor when this action was commenced in

state court, so this action was initially brought by his parents as next
friends, appearing through counsel on his behalf. Mathews reached the
age of majority in 2023, and the parties have recently stipulated that the
caption and all references in the pleadings would be amended to reflect
his actual name instead of his initials. Doc. 34; Doc. 35. The original
complaint included claims asserted by the plaintiff ’s parents in their
personal capacity as well, but those claims have all been dismissed.

May 26, 2022. Doc. 2. The lone named defendant, Abington Heights
School District (the “School District”), timely removed the action to this
court on June 15, 2022. Doc. 1.
We have previously considered and granted a motion to dismiss the
this action, twice. See Mathews v. Abington Heights Sch. Dist., No. 3:22CV-00959, 2023 WL 261971 (M.D. Pa. Mar. 22, 2023) (dismissing original
complaint), Doc. 12 & 13; Mathews v. Abington Heights Sch. Dist., No.
3:22-CV-00959, 2024 WL 711610 (M.D. Pa. Feb. 21, 2024) (dismissing
first amended complaint), Doc. 20 & 21.
On March 6, 2024, the plaintiff filed his second amended complaint.
Doc. 22. The defendant has filed a Rule 12(b)(6) motion to dismiss the
second amended complaint for failure to state a claim upon which relief
can be granted. Doc. 24. The motion is fully briefed and ripe for decision.
Doc. 25; Doc. 32; Doc. 33.
I.

ALLEGATIONS OF THE SECOND AMENDED COMPLAINT
For the most part, the second amended complaint repeats the

factual allegations of the original and first amended complaint verbatim,

-2-

with some additional material pleaded. 2
In December 2021, Mathews was a 10th grade student at Abington
Heights High School.3 He was an exemplary honor roll student with no
disciplinary history at Abington Heights High School.
In the early morning hours of December 20, 2021, shortly after
midnight, Mathews’s parents received a telephone call from police
requesting that they meet with officers outside their home to discuss an
issue involving Mathews and an anonymous tip that had been submitted
through

the

Safe2Say

Something

anonymous

reporting

system

(“Safe2Say”). 4
Mathews’s parents met with two police officers inside the garage of
their home. During that meeting, the police officers informed the parents
what the Safe2Say anonymous reporting system was, and they informed
Mathews’s parents that an anonymous tip about Mathews had been

The newly added material consists mostly of commentary,
argument, or legal conclusions, rather than new fact allegations. Where
material, any new fact allegations are included in this fact summary.
3 He has since graduated from high school.
4 Safe2Say is an anonymous reporting system established by the
Commonwealth of Pennsylvania for individuals who may be a risk to
themselves or others, and any member of a school community, including
students, can make a report anonymously via an app, through a website
at Safe2SayPA.org, or by calling 1-844-SAF2SAY (1-844-723-2729).
2

-3-

submitted. Specifically, the police officers informed Mathews’s parents
that an anonymous tip was submitted indicating that Mathews had made
statements that he had two firearms in his possession and that he was
going to Abington Heights High School on Monday, December 20, 2021,
to “shoot people on his list.”
At the time, Mathews had no access to any firearms. In fact, he had
been in quarantine due to COVID-19 exposure and would not be eligible
to return to school until December 22, 2021.
The police officers requested to speak to Mathews, who told the
officers that he did not have access to any firearms, that he never made
any statements about shooting anyone, and that he never created a list
of people he intended to shoot at Abington Heights High School.
At that time, the police officers indicated that they believed the
anonymous tip to have been false. But Mathews and his parents were
also informed that he should consider himself suspended from school
pending the school’s investigation. They were advised that they should
await a telephone call from the superintendent of the School District
before Mathews could return to school.
Shortly after the police officers departed, Mathews’s mother

-4-

advised him to contact his friends in an attempt to identify who made the
anonymous false tip via Safe2Say, and why they made that tip. Mathews
spoke with his fellow classmates, L.R. and P.M., both minors at the time,
who informed Mathews that another minor classmate, S.J., had “joked”
about submitting an anonymous false tip regarding Mathews via
Safe2Say. According to L.R. and P.M., they had been engaged in a game
of Fortnite5 together with Mathews and S.J., which led to a plot to make
an anonymous false tip about Mathews.
During a game of Fortnite, the four players had discussed how the
high school was “a ghost town” on the prior Friday night due to threats
that had circulated via social media regarding possible mass shootings in
schools across the nation. 6 At that point in the conversation, S.J. stated

5

See generally Pellegrino v. Epic Games, Inc., 451 F. Supp. 3d 373,

378 (E.D. Pa. 2020) (“Fortnite is a battle royale video game, a ‘genre that
blends the survival, exploration and scavenging elements of a survival
game with last-man-standing gameplay.’ In this format, ‘up to 100
players, alone, in pairs or in groups, compete to be the last player or group
alive’ by using weapons and other forms of violence to eliminate other
players.”) (citation omitted).
6 See, e.g., Hannah Natanson & Laura Meckler, Threats, Hoaxes
Add to School Stressors, Wash. Post, Dec. 21, 2021, at A1 (“[I]n a
‘challenge’ last week that swept the social network TikTok, students
promoted school shootings to take place this past Friday—for many, the
last day of class before winter break. Schools from D.C. to California
closed for the day or added police.”).
-5-

that he should submit an anonymous false tip regarding Mathews via
Safe2Say. S.J. then recorded and shared footage of himself via the
Snapchat application making the anonymous false tip, but the recording
disappeared once it was viewed, before the other players could record or
save it. 7
At approximately 1:30 a.m. on December 20, 2021, L.R. and P.M.
repeated their statements to a police officer regarding S.J.’s plan to
submit an anonymous tip about Mathews.
That same day, Mathews’s mother received a telephone call from
the Vice Principal at Abington Heights High School, 8 who indicated that,
after having interviewed S.J., and despite S.J.’s statements in his own
defense, the Vice Principal ultimately believed the tip to be false and
Mathews to be the “victim.” Nevertheless, and despite his innocence, the
Vice Principal suggested that Mathews refrain from returning to school
until after the impending winter holiday vacation, and she indicated that
she was continuing to investigate and interview students involved.

7

See generally Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy, 594

U.S. 180, 184 (2021) (“Snapchat [is] a social media application that allows
users to post photos and videos that disappear after a set period of time.”).
8 The second amended complaint does not identify the non-party
vice principal, but merely refers to her by title.
-6-

Even though police and the Vice Principal had already deemed the
tip to be false, she still chose to conduct interviews of certain students
involved in the incident, including L.M. When interviewing L.M., the Vice
Principal asked open-ended questions such as “Does [Mathews] make you
nervous?” and “Do you feel as though [Mathews] would shoot someone?”
The events of December 20, 2021, were not discussed with L.M. during
this interview; instead, the focus was on the unfounded possibility that
Mathews had a propensity for violence. Upon information and belief, the
plaintiffs allege that none of the students interviewed regarding this
incident were advised of the sensitivity of the matter and the damage it
could cause to Mathews.
On December 21, 2021, Mathews’s mother was contacted by the
Vice Principal, who told her that Mathews had been “cleared of the
matter” and that School District faculty or staff felt that Mathews was
“the victim.” The Vice Principal further informed Mathews’s mother that
S.J. had been suspended and that Mathews’s suspension was being lifted
and his absences attributed to COVID-19, and she instructed the
plaintiff ’s mother to contact her immediately if he faced any negative
repercussions as a result of the incident.

-7-

Faculty and staff were not informed of Mathews’s exoneration at
that point in time.
Mathews was able to return to school on December 22, 2021.
Naturally, he was extremely nervous to return to school, as he was
unsure how his fellow students would respond to his presence considering
the false tip.
Mathews was contacted by a friend and fellow student, K.B., who
informed Mathews that an unidentified student was asking other
students: “Where is your blue shirt so that [Mathews] does not shoot
you?”
Mathews’s mother immediately tried to contact the Vice Principal,
who was unavailable, and she ultimately spoke with the Principal at
Abington Heights High School.9 The Principal assured Mathews’s mother
that the comments would be investigated and addressed, and he
acknowledged that wearing blue was a detail mentioned in the false tip
regarding Mathews.
Mathews’s mother grew concerned that these specific details had

9 The second amended complaint does not identify the non-party

principal, but merely refers to him by title.
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been shared within the high school, as she believed rumors about
Mathews being a potential school shooter could essentially destroy his
life. 10 At that point, the Principal informed Mathews’s mother that he
would not send an email or text message to faculty or staff for fear of
“calling more attention” to the situation, but that faculty and staff at
Abington Heights High School would be made aware that Mathews was
innocent.
When Mathews returned to school on December 22, 2021, an
unidentified student addressed him as “shooter” during first period.
During third period that same day, in a class of approximately
twenty students, Mathews was addressed by his third period teacher, a
non-party identified in the pleadings only as “Teacher,” who said: “I am
hearing rumors. Are they true?”11 Teacher initiated a dialogue between
the students in the classroom regarding the situation, and Mathews’s
third period classmates all began to chime in regarding what they had
heard about the situation. When Mathews attempted to defend himself,

10 It is not clear from the second amended complaint whether she

expressed this concern to the Principal during that phone call.
11 The second amended complaint does not identify the non-party
teacher, but merely refers to him by position title.
-9-

Teacher interjected and began to lecture Mathews, stating “What were
you thinking?” and insinuating that S.J.’s false tip that Mathews had
made certain threats was true. Another teacher then entered the
classroom, at which point Teacher pointed to Mathews and asked: “Did
you hear what this kid did?”
Teacher’s statements created a ripple effect, and during sixth
period that same day, Mathews was approached by a group of students
who asked him if the rumors were true, at which point he had to explain
the situation and reiterated that the rumors were not true. As Mathews
was leaving school that day, another student yelled at Mathews in the
hallway, calling him “shooter.”
Mathews’s mother once again tried to contact the Vice Principal,
who was unavailable, and she once again spoke with the Principal. The
plaintiff ’s mother expressed her concern that faculty and staff continued
to perpetuate the incorrect belief that Mathews had made statements
regarding a potential school shooting. The Principal promised that
faculty and staff would be stationed in the hallways so Mathews was not
harassed by his fellow students. The Principal, however, refused to
release any information to Mathews’s mother regarding disciplinary

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action being taken against S.J., other than noting that students in this
type of situation could face a maximum of ten days of suspension, and
that the School District would need to determine if any additional action
needed to be taken.
While Mathews’s mother was speaking with the Principal, the Vice
Principal left a voicemail for her apologizing for her son’s “experience”
that day. In that voicemail, the Vice Principal stated that she did not
address the specific statements made to Mathews that day because she
was “unable to get that kid before the day ended.” She further stated that
she did not think this was “a widespread situation” because she had only
spoke with two students about it.
Mathews’s mother then contacted the Assistant Principal at
Abington Heights High School12 and once again expressed her concerns
that Mathews’s reputation and well-being had suffered irreparable
damage as a result of the incident and the manner in which it was
handled by the high school and the School District. In light of the
repeated requests by Mathews’s mother, the Assistant Principal agreed

12 The second amended complaint does not identify the non-party

assistant principal, but merely refers to him or her by title.
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to send an e-mail to all faculty and staff of Abington Heights High School
exonerating Mathews.
The Assistant Principal subsequently sent an email to faculty and
staff on December 23, 2021, stating that the “Safe2Say report accusing
[Mathews] of possibly threatening the school” was investigated and found
to be false. Unfortunately, by that time, false rumors about Mathews had
already spread throughout the student population of Abington Heights
High School.
Before

the

impending

winter

holiday

vacation,

Mathews

approached Teacher, once again informed Teacher that he was in fact
innocent, and informed Teacher that he did not appreciate the way
Teacher handled the situation in third period on December 22, 2021.
Teacher admitted to mishandling the situation and apologized.
The second amended complaint alleges that, as a result of the acts
or omissions of the School District, Mathews’s reputation has been
forever tarnished by false rumors that he plotted to initiate a school
shooting. The second amended complaint further alleges that, since
December 20, 2021, Mathews has exhibited signs or symptoms of anxiety
and depression, including fatigue, insomnia, loss of interests, low self-

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esteem, and lack of concentration, which has contributed to absenteeism
and tardiness at school. Mathews’s previously excellent academic
performance has suffered as well, with his grades decreasing drastically,
making him ineligible for participation in a “Level Up Lackawanna”
program that allows high-achieving students to earn an early associate
degree in select majors by the time they graduate from high school
through a combination of dual enrollment classes. 13
II.

LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a

defendant to move to dismiss for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). “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 the plaintiff ’s claims lack facial
plausibility.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–56
(2007)). In deciding the motion, the Court may consider the facts alleged

13

See generally Lackawanna Coll., Level Up Program, https://www

.lackawanna.edu/offices-and-departments/admissions/level-up/
visited Mar. 4, 2025).
- 13 -

(last

on the face of the complaint, as well as “documents incorporated into the
complaint by reference, and matters of which a court may take judicial
notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322
(2007). Although the Court must accept the fact allegations in the
complaint as true, it is not compelled to accept “unsupported conclusions
and unwarranted inferences, or a legal conclusion couched as a factual
allegation.” Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc)
(quoting Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007)). Nor is
it required to credit factual allegations contradicted by indisputably
authentic documents on which the complaint relies or matters of public
record of which we may take judicial notice. In re Washington Mut. Inc.,
741 Fed. App’x 88, 91 n.3 (3d Cir. 2018); Sourovelis v. City of

Philadelphia, 246 F. Supp. 3d 1058, 1075 (E.D. Pa. 2017); Banks v. Cty.
of Allegheny, 568 F. Supp. 2d 579, 588–89 (W.D. Pa. 2008).
III.

DISCUSSION
The plaintiff has filed a one-count second amended complaint

against the School District,14 asserting a § 1983 Fourteenth Amendment

14 Count I of the second amended complaint appears to be a revised

version of Count IV of the first amended complaint, asserting a § 1983

(continued on next page)

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“state-created danger” substantive due process claim based on the verbal
harassment experienced by Mathews upon his return to school. For relief,
the complaint demands an award of compensatory damages.
A. State-Created Danger
It is well established that “[a]s a general matter, . . . a State’s failure
to protect an individual against private violence simply does not
constitute a violation of the Due Process Clause.” DeShaney v. Winnebago

Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989). “The Due Process
Clause forbids the State itself from depriving ‘individuals of life, liberty,
or property without ‘due process of law,’ but its language cannot fairly be
extended to impose an affirmative obligation on the State to ensure that
those interests do not come to harm through other means.’” Morrow, 719
F.3d at 166 (quoting DeShaney, 489 U.S. at 195) (emphasis in original).
As recognized by the Third Circuit, the “state-created danger
doctrine” is “a narrow exception to the general rule that the state has no

Fourteenth Amendment substantive due process claim under a statecreated danger theory. The first amended complaint also included § 1983
Fourteenth Amendment claims under equal protection, traditional
procedural due process, and “stigma-plus” procedural due process
theories. In his original complaint, the plaintiff also asserted state-law
tort claims and a claim for punitive damages. All of these other claims
have been omitted from the second amended complaint.
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duty to protect its citizens from private harms.” Henry v. City of Erie, 728
F.3d 275, 286 (3d Cir. 2013); see also Vorobyev v. Wolfe, 638 F. Supp. 3d
410, 424 (M.D. Pa. 2022) (“The Third Circuit has . . . recognized, but
narrowly construed, the state-created danger doctrine as a carefully
crafted and specifically defined exception to DeShaney’s scope.”). Under
this theory, “liability may attach where the state acts to create or enhance
a danger that deprives the plaintiff of his or her Fourteenth Amendment
right to substantive due process.” Morrow, 719 F.3d at 177 (citing Kneipp

v. Tedder, 95 F.3d 1199, 1205 (3d Cir. 1996)) (emphasis in original). To
state a claim under this theory, a plaintiff must plausibly allege the
following four elements:
1) the harm ultimately caused was foreseeable and
direct;
2) a state actor acted with a degree of culpability that
shocks the conscience;
3) a relationship between the state and the plaintiff
existed such that the plaintiff was a foreseeable victim
of the defendant’s acts, or a member of a discrete class
of persons subjected to the potential harm brought
about by the state’s 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.
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Id. (quoting Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.
2006)).
In considering and dismissing this same claim as alleged in the first
amended complaint, we found the plaintiff had failed to plausibly allege
the first element of a state-created danger claim—a foreseeable and fairly
direct harm—because the first amended complaint alleged only mental
or emotional harm, which is not a cognizable basis for recovery under a
state-created danger claim, and, moreover, it did so in a vague and
conclusory fashion. See Mathews, 2024 WL 711610, at *7; Doc. 20, at 19–
20; see also Carey v. City of Wilkes-Barre, 410 Fed. App’x 479, 483 (3d
Cir. 2011) (holding that the plaintiff ’s allegation of anxiety did “not rise
to the level of foreseeable and fairly direct harm,” and “the emotional
distress alleged by [the plaintiff] is not a cognizable harm”); J.B. ex rel.

J.B. v. Greater Latrobe Sch. Dist., No. 2:21-cv-00690, 2023 WL 5510365,
at *8 (W.D. Pa. Aug. 25, 2023) (“Emotional distress is not a cognizable
harm for purposes of setting forth a state-created danger claim.”); id. at
*9 (“Plaintiff ’s diagnosis of PTSD is not alone sufficient to establish
physical injury.”); Gohl v. Livonia Pub. Schs., 134 F. Supp. 3d 1066, 1086
(E.D. Mich. 2015) (“Courts have repeatedly held that allegations of

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emotional injury, without some measure of physical injury, are
insufficient for a substantive due process claim.”).
In an effort to cure this pleading defect, the second amended
complaint has added a conclusory allegation that, as a result of the School
District’s “action and/or inaction,” Mathews suffered “[p]hysical injuries
including

headaches,

sleeplessness/insomnia,

sleep

disturbances,

fatigue, somatization, [and] loss of appetite” as somatic manifestations of
mental or emotional distress.15 Second Am. Compl. ¶¶ 102, 127, Doc. 22.

In addition, the second amended complaint also alleges that
Mathews was suspended during the investigation and excluded from
attending school on December 20 and 21, 2021, which “undoubtedly
deprived” him of a protected property interest in a public education. See
Second Am. Compl. ¶¶ 103–04, 129–30, Doc. 22. This allegation, which is
immaterial to the plaintiff ’s substantive due process claim, appears to
seek to rehabilitate a previously dismissed traditional procedural due
process claim. See Mathews, 2024 WL 711610, at *7–8 (dismissing
procedural due process claim because nominal “suspension” did not
actually prevent plaintiff from attending school due to overlapping and
preexisting period of COVID quarantine). But when the court granted
the plaintiff leave to file a second amended complaint, the scope of
amendment was expressly limited to pleading a state-created danger
substantive due process claim. See id. at *9; see also Doc. 21 ¶ 3.
Moreover, we decline to credit this apparent attempt to artfully plead
around the grounds for that dismissal because any allegation that
Mathews was prevented from attending school on December 20 and 21,
2021, due to suspension is flatly contradicted by the plaintiff ’s prior
admissions in his verified original and first amended complaints.
Compare Compl. ¶ 19 (“G.M. had been in quarantine due to COVID-19
15

(continued on next page)

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But the plaintiff has failed to allege sufficient facts to plausibly establish
that these somatic symptoms of emotional distress were a foreseeable
and fairly direct result of the School District’s allegedly wrongful “action
and/or inaction”—that is, its failure to promptly and adequately
communicate the plaintiff ’s exoneration to school faculty, staff, and
students so as to prevent or minimize the rumors and harassment he

exposure since December 16, 2021, and would not be able to return to
school until December 22, 2021.”), Doc. 2, and Am. Compl. ¶ 19 (“G.M.
had been in quarantine due to COVID-19 exposure since December 16,
2021, and would not be able to return to school until December 22,
2021.”), Doc. 14, with Second Am. Compl. ¶ 19 (“G.M. had been in
quarantine due to COVID-19 exposure since December 16, 2021, and did
not plan to return to school until the following week.”) (emphasis added).
Although the original and first amended complaints have been
superseded by subsequent pleadings and rendered of no legal effect, we
may take judicial notice of factual admissions in the superseded
pleadings, which are part of the public record. See Pa. R. R. Co. v. City of
Girard, 210 F.2d 437, 440 (6th Cir. 1954) (“[P]leadings withdrawn or
superseded by amended pleadings are admissions against the pleader in
the action in which they were filed.”); see also Rowbottom v. City of
Harrisburg, No. 19-cv-00657, 2020 WL 6866262, at *1 n.1 (M.D Pa. Jan.
23, 2020) (taking judicial notice of factual admissions in superseded
pleadings). See generally In re Washington Mut. Inc., 741 Fed. App’x at
91 n.3 (“We need not . . . credit factual allegations contradicted by
matters of which we may take judicial notice.”); Sourovelis, 246 F. Supp.
3d at 1075 (“[W]hile Plaintiffs’ well-pleaded allegations must be accepted
as true for purposes of this motion, the Court need not accept as true
allegations that are directly contradicted by . . . matters of public
record.”); Banks, 568 F. Supp. 2d at 588 (“Neither does the court have to
accept as true anything in the complaint which contradicts facts of which
the court may take judicial notice.”).
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experienced as a result of the false tip. See Burk v. Townsend, No. CV-2201967, 2024 WL 3973764, at *10 (D. Ariz. Aug. 22, 2024) (“Plaintiff ’s
allegations of emotional harm but no actual physical injury caused by
Defendants’ actions are insufficient to state a Fourteenth Amendment
substantive due process claim.”) (citations omitted); cf. Strobel v. United

States, No. 24-3105, 2024 WL 5187589, at *2 n.1 (D. Kan. Dec. 20, 2024)
(discussing case law finding that somatic manifestations of emotional
distress, such as appetite loss, insomnia, headaches, and fatigue, are
insufficient to establish “physical injury” in the PLRA context).
The plaintiff ’s second amended complaint also fails to plausibly
allege the fourth element of a state-created danger claim—an affirmative
act by the School District that created a danger to Mathews or that
rendered Mathews more vulnerable to danger than had the School
District not acted at all. The second amended complaint repeatedly refers
to unspecified “action and/or inaction” by the School District as the
wrongful conduct that caused or enhanced the harassment experienced
by Mathews upon his return to school. See Second Am. Compl. ¶¶ 110–
13, 123–24, 127. In its brief in support, the School District notes that the
only factual allegation in support of this claim concerns a failure to act,

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rather than any affirmative act by school officials: namely, the alleged
failure of school administrators to adequately communicate the results of
their investigation to school faculty and staff, which in turn allowed
rumors about Mathews to spread among the student population. Br.
Supp. 8–9, Doc. 25. In his brief in opposition to the motion to dismiss, the
plaintiff does not contest this characterization, but instead he has
expressly declined to identify the affirmative act upon which his statecreated danger theory rests. See Br. Opp’n 14 (“[T]here is no need to
specifically identify an affirmative action.”), Doc. 32.
Looking to the allegations of the second amended complaint, we
agree that the plaintiff ’s claim rests entirely on the School District’s
alleged inaction or failure to act, pointing only to the School District’s
failure to timely communicate the results of its investigation—i.e., its
findings that the anonymous Safe2Say tip was false and that Mathews
made no threats of violence against the school or members of the school
community—to counter rumors and false information circulating among
the student population, and its failure to adequately train faculty and
staff on how to appropriately address such rumored threats. See Second
Am. Compl. ¶¶ 117–25. The School District’s failure to take such action

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does not constitute affirmative conduct that may trigger a duty to protect
under the state-created danger doctrine. See Bright, 443 F.3d at 282 (“It
is misuse of state authority, rather than a failure to use it, that can
violate the Due Process Clause.”). Indeed, to characterize the School
District’s inaction as an “affirmative exercise of authority” would permit
“the state-created danger exception [to] swallow the rule. . . . Any and all
failures to act would be transformed into an affirmative exercise of
authority.” Morrow, 719 F.3d at 178 (emphasis in original); see also

Gayemen v. Sch. Dist. of City of Allentown, 712 Fed. App’x 218, 221 (3d
Cir. 2017) (“This Court has repeatedly rejected similar efforts to
recharacterize inaction as action.”).
The plaintiff has failed to identify any affirmative act by the School
District that “rendered [him] more vulnerable to danger than had the
state not acted at all.” Morrow, 719 F.3d at 178 (quoting Bright, 443 F.3d
at 281). A failure to act is not the affirmative exercise of authority: The
School District’s failure to communicate its findings to faculty and staff
did not create a new danger, it did not cause Mathews to be harassed by
other students, who learned of the false threat of violence from social
media and the rumor mill rather than school officials, and it did not

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render him more vulnerable to such harassment. See Morgan v. Town of

Lexington, 823 F.3d 737, 744 (1st Cir. 2016) (“An alleged failure of the
school to be effective in stopping bullying by other students is not action
by the state to create or increase the danger.”); Phillips v. Cnty. of

Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) (holding that, if a plaintiff ’s
“allegations, at their core, are omissions, not commissions—inactions
rather than actions,” the plaintiff has failed to sufficiently plead a statecreated danger claim); Dorley v. S. Fayette Twp. Sch. Dist., 129 F. Supp.
3d 220, 237 (W.D. Pa. 2015) (“Courts must assess . . . whether state
officials ‘created or increased the risk’ themselves, or whether they
simply ‘might have done more’ to protect individuals from harm.”) (citing

Morrow, 719 F.3d at 179).
Accordingly, the plaintiff ’s § 1983 Fourteenth Amendment statecreated danger substantive due process claim will be dismissed for failure
to state a claim upon which relief can be granted, pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
B. Leave to Amend
The Third Circuit has instructed that if a civil rights complaint is
vulnerable to dismissal for failure to state a claim, the district court must

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permit a curative amendment, unless an amendment would be
inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir. 2002). This instruction applies equally to pro se plaintiffs and
those represented by counsel. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004). In this case, based on the facts alleged in the second amended
complaint, it is clear that any further amendment would be futile with
respect to the plaintiff ’s remaining § 1983 Fourteenth Amendment statecreated danger claim, particularly in light of the plaintiff ’s failure to cure
the previously identified pleading deficiencies of his first amended
complaint. Thus, the second amended complaint will be dismissed

without leave to amend.
IV.

CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss (Doc.

24) will be granted and the second amended complaint (Doc. 22) will be
dismissed for failure to state a claim upon which relief can be granted,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The
clerk will be directed to mark this case as closed.

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An appropriate order follows.

Dated: March 11, 2025

s/Joseph F. Saporito, Jr.

JOSEPH F. SAPORITO, JR.
United States District Judge

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