Doe v. Herman et al
Filing
33
ORDER granting in part and denying in part 15 Motion to Dismiss Signed by Honorable David C Norton on 6/10/2016. (rweh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
JANE DOE, by her Natural Guardian and Legal
Representative, FATHER DOE,
Plaintiff,
vs.
PAUL HERMAN, Individually; CYNTHIA
MCBRIDE, Individually; NATE SPITULSKI,
Individually; and BERKELEY COUNTY
SCHOOL DISTRICT,
Defendants.
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No. 2:15-cv-4757-DCN
ORDER
This matter is before the court on defendants Cynthia McBride (“McBride”) and
Nate Spitulski’s (“Spitulski”)(collectively the “moving defendants”) motion to dismiss
plaintiff Jane Doe’s (“plaintiff”) claims against them pursuant to Federal Rule of Civil
Procedure 12(b)(6). For the reasons set forth below, the court grants in part and denies in
part the moving defendants’ motion to dismiss.
I. BACKGROUND1
Plaintiff is a minor under the age of eighteen and was, at all times relevant to this
action, a student at Goose Creek High School (“GCHS”). Am. Compl. ¶¶ 1, 51. At the
beginning of the 2014-15 school year, plaintiff became aware of defendant Paul Herman
(“Herman”), a school official employed by the Berkeley County School District
(“BCSD”)2 as an Assistant Principal at GCHS. Id. ¶¶ 3, 49, 51. During the school year,
Herman engaged plaintiff in intimate conversations on school grounds, in plain view of
1
2
The following facts are drawn from plaintiff’s amended complaint.
The BCSD is a defendant in this action but is not involved in the instant motion.
1
other students and GCHS employees. Id. ¶ 51. On December 18, 2014, Herman told
plaintiff that he was sexually attracted to her, but warned her: “If this were to ever get
out no one would believe you . . . .” Id. ¶ 55. Between December 2014 and February
2015, Herman engaged in a variety of public behaviors with plaintiff which plainly
demonstrated his prurient sexual interest in her, including: (i) directing plaintiff into his
office, where he would kiss and touch her during and after school; (ii) replacing other
GCHS personnel in supervising school and extra-curricular activities involving plaintiff,
without offering any rational basis for such decisions; (iii) engaging plaintiff in intimate
conversations and making sexual comments to her on a daily basis, in public areas and in
plain view of other school officials; (iv) excusing plaintiff from her classes for no
disciplinary or educational purpose; (v) habitually waiting outside of plaintiff’s
classrooms to speak with her when she exited class; and (vi) regularly watching plaintiff
on the school’s surveillance cameras to track her movement and location. Id. ¶ 53.
Privately, Herman also used his age and position to advance his prurient sexual interest in
plaintiff by telling her he could change her grades without regard to her academic
performance and threatening to suspend male students who spoke to her. Id. ¶ 57.
From January to February 2014, Herman communicated with plaintiff by
telephone and sent her text messages discussing sexual and other inappropriate subject
matter. Id. ¶ 59. On Friday 20, 2015, Herman isolated plaintiff in his office and
subjected her to sexual battery. Id. ¶ 58. The next day, plaintiff’s father (“Father Doe”)
learned of the inappropriate telephone communications Herman was sending plaintiff,
and on Monday, February 23, 2015, Father Doe reported Herman to the Berkeley County
Sheriff’s Office. Id. ¶ 59.
2
The moving defendants were also employed as Assistant Principals at GCHS
during the 2014–15 school year. Id. ¶¶ 4, 5. Spitulski’s responsibilities included
supervision, management, and control over the GCHS Teachers’ Assistants (“TA”)
program, requiring him to supervise and investigate misconduct among students and
employees in the TA program. Id. ¶ 11. McBride’s responsibilities included acting as
the GCHS Title IX administrator, requiring her to supervise, identify, and administer civil
rights concerns among students and employees at GCHS. Id. ¶ 10. The moving
defendants each had a general responsibility to observe GCHS student-employee
interactions for inappropriate conduct. Id. ¶ 13. Specifically, BCSD policy required that:
Any employee who believes that he/she has witnessed inappropriate
conduct of a sexual nature toward an employee or a student must
immediately report such a situation to his/her immediate supervisor or
principal . . . . All administrators/supervisors/contact persons will initiate
an investigation of any incident or alleged sexual harassment or
inappropriate conduct of a sexual nature reported to them or observed by
them in consultation with the district’s Title IX Coordinator.
Id. ¶ 9 (citing BCSD Policy AR GBAA-R Employee Sexual Discrimination and
Harassment- Issued 3/8/05; Revised 7/10/07).
Plaintiff alleges that the moving defendants became aware of Herman’s sexual
interest in plaintiff through first hand observations and their interactions with Herman.
Id. ¶¶ 19, 22. Plaintiff contends that the moving defendants observed Herman and
plaintiff together for no educational reason throughout the school and in Herman’s office
on a daily basis and witnessed Herman frequently engage plaintiff in behavior deemed
inappropriate under BCSD policy. Id. ¶¶ 22, 24. Despite these alleged observations, the
moving defendants did not report Herman’s misconduct or take any other action to
prevent Herman from harming plaintiff. Id. 19, 25–27.
3
Plaintiff further alleges that the moving defendants went beyond simply failing to
intervene and actually enabled Herman’s misconduct. With regard to Spitulski, plaintiff
alleges that Spitulski learned that Herman was concealing his misconduct toward plaintiff
under the guise of the TA program and that Spitulski aided this concealment by telling
BCSD officials and GCHS employees that plaintiff was Herman’s TA, despite knowing
that she was not. Id. ¶¶ 31–37. Plaintiff also alleges that Spitulski participated in certain
of the conversations between herself and Herman, wherein Herman informed plaintiff
that he could change her grades without regard to her academic performance. Id. ¶ 38.
As for McBride, plaintiff alleges that McBride confronted Herman about the
inappropriate amount of time he was spending with plaintiff in plain view of GCHS
students and employees, and “directed [] Herman to conceal and hide his contact with
plaintiff in private isolated settings at GCHS.” Id. 46, 47.
On the basis of these allegations, plaintiff filed this action on November 30, 2015.
The moving defendants filed the instant motion to dismiss on February 2, 2016. Plaintiff
filed a response, along with an amended complaint, on February 16, 2016. The amended
complaint brings causes of action under § 1983 against the moving defendants under a
supervisory liability theory and a state-created danger theory. The moving defendants
filed their reply on February 26, 2016. The court held a hearing on April 12, 2016. The
motion is ripe for the court’s review.
II. STANDARDS
Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss for
“failure to state a claim upon which relief can be granted.” When considering a Rule
12(b)(6) motion to dismiss, the court must accept the plaintiff’s factual allegations as true
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and draw all reasonable inferences in the plaintiff’s favor. See E.I. du Pont de Nemours
& Co. v. Kolon Indus., 637 F.3d 435, 440 (4th Cir. 2011). But “the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a motion to dismiss, the
court’s task is limited to determining whether the complaint states a “plausible claim for
relief.” Id. at 679. Although Rule 8(a)(2) requires only a “short and plain statement of
the claim showing that the pleader is entitled to relief,” “a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 570). “Facts pled that are ‘merely consistent with’ liability are not
sufficient.” A Soc’y Without a Name v. Va., 655 F.3d 342, 346 (4th Cir. 2011) (quoting
Iqbal, 556 U.S. at 678).
III. DISCUSSION
At the outset, the court must address plaintiff’s argument that the amended
complaint supersedes the previous complaint and renders the instant motion moot. Pl.’s
Resp. 2. Although an amended complaint generally supersedes the original complaint,
Young v. City of Mount Ranier, 238 F.3d 567, 573 (4th Cir. 2001), the amended
complaint is not sufficient to moot the motion to dismiss in this case. To the extent the
amended complaint contains the same deficiencies addressed by the initial motion, the
court may deem that motion to be made against the amended complaint. Contreras v.
Thor Norfolk Hotel, L.L.C., 292 F. Supp. 2d 798, 800 n.1 (E.D. Va. 2003) (“Although
Plaintiff filed his Amended Complaint after Defendant's Motion to Dismiss was filed, a
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pending motion to dismiss may be deemed against the amended complaint if the fatal
defects remain.” (citing 6 Charles A. Wright et al., Federal Practice and Procedure § 1476
at 558 (2d ed. 1990)). Here, the moving defendants’ reply directs their original
arguments against the amended complaint. Defs.’ Reply 3. Thus, the court will
“consider the motion as being addressed to the amended pleading.” Id. at 800.
Turning to the merits of the instant motion, the moving defendants argue that they
are entitled to qualified immunity from plaintiff’s 42 U.S.C. § 1983 claims against them.
Defs.’ Mot. 3. In order to state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must
allege (1) that he or she “has been deprived of a right, privilege or immunity secured by
the Constitution or laws of the United States,” and (2) “that the conduct complained of
was committed by a person acting under color of state law.” Dowe v. Total Action
Against Poverty in Roanoke Valley, 145 F.3d 653, 658 (4th Cir. 1998) (citing 42 U.S.C.
§ 1983). “Qualified immunity shields government officials from civil liability insofar as
their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Hill v. Crum, 727 F.3d 312, 321 (4th
Cir. 2013) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine
whether a defendant is entitled to qualified immunity, the court must examine whether
the defendant violated the plaintiff’s constitutional or statutory rights, and if so, whether
the defendant’s “conduct was objectively reasonable in view of the clearly established
law at the time of the alleged event.” Id.
The moving defendants argue that they did not violate plaintiff’s rights under a
supervisory liability theory because they were not Herman’s supervisors, and even if they
were, they did not possess sufficient knowledge or display the requisite “deliberate
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indifference.” Defs.’ Mot. 4–10. The moving defendants also argue that did not violate
plaintiff’s rights under a state-created danger theory because they did not undertake any
affirmative conduct which increased the risk of harm posed by Herman. Id. at 10–12.
The court addresses each argument in turn.
A.
Supervisory Liability
Plaintiff argues that the moving defendants are liable under a theory of
supervisory liability because they were responsible for supervising Herman’s interactions
with plaintiff and failed to act to prevent Herman from abusing plaintiff, despite knowing
of the risk Herman posed. Am. Compl. ¶¶ 64–78. The moving defendants contend that
they did not have supervisory authority over Herman. Defs.’ Mot. 4.
“[S]upervisory officials may be held liable in certain circumstances for the
constitutional injuries inflicted by their subordinates.” Slakan v. Porter, 737 F.2d 368,
372 (4th Cir. 1984). To establish supervisory liability under § 1983, the court must find
“(1) that the supervisor had actual or constructive knowledge that his subordinate was
engaged in conduct that posed ‘a pervasive and unreasonable risk’ of constitutional injury
to citizens like the plaintiff; (2) that the supervisor’s response to that knowledge was so
inadequate as to show ‘deliberate indifference to or tacit authorization of the alleged
offensive practices[;]’ and (3) that there was an ‘affirmative causal link’ between the
supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.”
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994) (quoting Slakan, 737 F.2d at 373, 376).
Though the Fourth Circuit has stated that the plaintiff bears a “heavy burden of proof in
supervisory liability cases,” Slakan, 737 F.2d at 373, the question of supervisory liability
is ordinarily an issue of fact, not law. Shaw, 13 F.3d at 799.
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The moving defendants argue that plaintiff fails to allege that they had actual
supervisory authority over Herman. As the Fifth Circuit explained in Doe v. Rains Cty.
Indep. Sch. Dist., 66 F.3d 1402, 1415 (5th Cir. 1995), “supervisory liability” requires that
the defendant’s inaction be causally linked to the plaintiff’s constitutional injury, and
therefore, the defendant have had the ability to control the primary wrongdoer, otherwise
“the causal connection between the failure to act and the ultimate injury [is] too
speculative to support a finding of § 1983 liability.” Moreover, because § 1983 liability
is only imposed when a defendant acts “under color of state law,” the defendant’s control
over the primary wrongdoer must arise from a power or right conferred under state law.
Id. at 1411–13 (concluding that “it is state law’s grant of a right of legal control over the
immediate perpetrator of an injury that establishes that a state supervisor possessed and
exercised state authority”). For this reason, “supervisory liability” is not strictly reserved
for claims against direct supervisors, but a plaintiff must always show that the defendant
possessed a state-law created right of control.3 Id. at 1413 (“We have never suggested,
however, that only supervisors can be held liable for a failure to act that results in a
3
The court was unable to find any Fourth Circuit decisions explicitly addressing whether a
“supervisory liability” theory may apply to non-supervisors. Notably, however, the Fifth
Circuit’s supervisory liability test is substantially the same as the test applied by the Fourth
Circuit in Shaw. Compare Rains Cty., 66 F.3d at 1413 (finding liability “[w]here a supervisory
school official (1) knew facts pointing plainly toward the conclusion that the subordinate was
sexually abusing the student, (2) demonstrated deliberate indifference toward the student’s
constitutional rights by failing to take appropriate action to prevent or stop the abuse, the official
can be held personally liable to the student if (3) the official’s failure to act caused a
constitutional injury to the student”) (internal quotation marks omitted), with Shaw, 13 F.3d at
799 (requiring plaintiff to show “(1) that the supervisor had actual or constructive knowledge that
his subordinate was engaged in conduct that posed a pervasive and unreasonable risk of
constitutional injury to citizens like the plaintiff; (2) that the supervisor’s response to that
knowledge was so inadequate as to show deliberate indifference to or tacit authorization of the
alleged offensive practices; and (3) that there was an affirmative causal link between the
supervisor’s inaction and the particular constitutional injury suffered by the plaintiff.”). Given
the similarity between these two formulations of the supervisory liability doctrine, the court finds
the principles announced by the Fifth Circuit in Rains County to be instructive on the issue.
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constitutional injury. . . . While supervisors frequently have a right of control by virtue of
their status, control can exist in other ways.”).
The Rains County court went on to apply this rationale to the plaintiff’s allegation
that the defendant-teacher was liable under § 1983 for failing to report another teacher
who was sexually abusing the plaintiff. Id. at 1416. The court found that a state statute
requiring teachers to report child abuse to the proper authorities did not grant any right of
control over the abuser. Id. Therefore, the defendant’s failure to report the plaintiff’s
abuse under that statute “[did] not have the causal connection necessary to implicate an
exercise of state power.” Id. The court did note that if the defendant “otherwise
possessed authority under state law—e.g., as a teacher or a citizen—to exercise control
over [the abuser’s] actions,” she could have been held liable under § 1983. Id. at 1417.
However, finding no such authority under Texas law, the court ruled that the defendant
could not be held liable under § 1983 for her failure to report the abuse. Id.
Here, it is clear that the moving defendants were empowered—and indeed,
required—to investigate and report inappropriate behavior and potential abuse, id. ¶¶ 9–
11, 13, 25, but this authority is entirely analogous to the reporting statute addressed in
Rains County, and fails for the reasons discussed above. Rains Cty., 66 F.3d at 1416;
Jennings v. Univ. of N.C. at Chapel Hill, 240 F. Supp. 2d 492, 503 (M.D.N.C. 2002) (“In
the absence of legal control over [the abuser], these [d]efendants’ reporting omissions
cannot be said to have affirmatively caused the alleged deprivation of [p]laintiffs’
constitutional rights.”). Beyond the power to investigate and report, plaintiff contends
that Spitulski’s authority to “supervise” the TA program and McBride’s authority to
“supervise” and “administer” Title IX matters gave the moving defendants supervisory
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authority over Herman. Am. Compl. ¶¶ 10, 11, 69, 70. However, these allegations are
simply too vague to suggest that the moving defendants could have controlled Herman’s
actions. The fact that each GCHS assistant principal may have their own responsibilities
and concomitant spheres of authority does not suggest that they have the ability to
exercise anything resembling “control” over their fellow employees, especially those of
equal rank. Plaintiff has been unable to articulate what specific measures the moving
defendants could have taken to prevent Herman’s actions.4
Even assuming that the moving defendants could have established rules or
policies through their TA program or Title IX authorities that would have addressed the
risk Herman posed to plaintiff,5 there is nothing in the amended complaint to suggest that
state law gave them the power to unilaterally force Herman to comply with such
requirements. See Raines County, 66 F.3d at 1411–13 (“[I]t is state law’s grant of a right
of legal control over the immediate perpetrator of an injury that establishes that a state
supervisor possessed and exercised state authority.”). This power would, presumably, lie
with Herman’s formal supervisor—the GCHS principal.6
Without this enforcement power, any TA program or Title IX-related rules or
policies the moving defendants could have put in place would have had the same effect
4
When asked at the hearing what the moving defendants could have specifically done to
control Herman, plaintiff’s counsel first answered that they could have reported him to the
principal, which is clearly insufficient under Rains County, as discussed above. After further
questioning, plaintiff’s counsel again cited “supervisory” and “administrative” powers over the
TA program and Title IX matters. Of course, this simply restates, rather than resolves, the exact
same ambiguity that prompted the questioning.
5
Alternatively, one might assume that such policies were already in place.
6
At the hearing, plaintiff’s counsel appeared to suggest that GCHS’s principal “delegated”
his supervisory powers to the moving defendants to the extent those powers related to the TA
program or Title IX matters. This suggestion is nowhere to be found in the amended complaint,
and even if it were, there is still nothing to suggest that this purported delegation was recognized
under state law.
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on Herman’s actions as the aforementioned BCSD’s sexual harassment policy—that is,
the moving defendants could have reported Herman’s violations to the principal, but the
principal would have the ultimate authority to impose punishment or other enforce
compliance. See Am. Compl. ¶ 9 (citing BCSD Policy AR GBAA-R Employee Sexual
Discrimination and Harassment- Issued 3/8/05; Revised 7/10/07). As long as the moving
defendants lacked this ultimate enforcement power, they did not possess the requisite
“legal control” over Herman to be held liable under a supervisory liability theory.
Plaintiff’s allegations regarding the moving defendants “administrative” and
“supervisory” authorities can be read to implicate such power in only a vague and
conclusory way, at best.
Therefore, the court finds that plaintiff has failed to plead sufficient facts to
support a supervisory liability theory.7
B.
State-Created Danger Theory
Plaintiff also contends that the moving defendants violated her rights under a
state-created danger theory. Am. Compl. ¶¶ 79–90. The moving defendants argue that
they cannot be held liable under such a theory because they did not take any affirmative
action which increased the risk of Herman’s abuse. Defs.’ Mot. 9–12.
“[T]o establish § 1983 liability based on a state-created danger theory, a plaintiff
must show that the state actor created or increased the risk of private danger, and did so
directly through affirmative acts, not merely through inaction or omission.” Doe v. Rosa,
795 F.3d 429, 439 (4th Cir. 2015), cert. denied sub nom. 136 S. Ct. 811 (2016). When
7
Because the court finds that the amended complaint fails to sufficiently allege that the
moving defendants had the power to control Herman, the court does not address whether the
moving defendants possessed sufficient knowledge of the risk Herman posed to plaintiff or
whether the moving defendants displayed the requisite “deliberate indifference” to impose
supervisory liability.
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determining whether a state committed an affirmative act, courts must “resist the
temptation” to allow inaction to be “artfully recharacterized as an action.” Id. at 441
(quoting Pinder v. Johnson, 54 F.3d 1169, 1176 n* (4th Cir. 1995).
The bulk of plaintiff’s amended complaint engages in this sort of “artful
recharacterization.” Id. Plaintiff’s allegation that the moving defendants “failed to take
steps to mitigate the risk that Plaintiff would be subject to [] Herman’s” abuse, Am.
Compl. ¶¶ 83, 85, fall well short of establishing the sort of “affirmative act” required
under the “state-created danger” theory. Plaintiff does, however, allege two acts which
require closer examination: (i) Spitulki’s alleged lies to other GCHS employees,
“informing” them that plaintiff was Herman’s TA; and (ii) McBride’s alleged
conversation with Herman, in which she told him he was spending too much time with
plaintiff “in plain view of GCHS students and employees,” and “directed [him] to
conceal . . . his contact with [p]laintiff.” Id. ¶¶ 35, 45, 46.
Each of these alleged incidents could be characterized as “affirmative acts”—
namely, communications. It is also at least plausible that these actions “increased” the
danger to plaintiff by helping Herman to evade detection. Spitulski’s statements could
have resolved questions other GCHS employees might have had about Herman’s
behavior, and McBride’s instruction to Herman to keep his contact with plaintiff private
could have prevented such questions from arising in the first place. Thus, when read in
the light most favorable to plaintiff, these allegations quite plainly state a claim that the
moving defendants “increased the risk of [] danger.” Rosa, 795 F.3d at 439.
This conclusion finds further support in the Fourth Circuit’s opinion in Robinson
v. Lioi, which recognized that a defendant may be held liable under the state-created
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danger theory for actions which provide direct aid to the primary wrongdoer. 536 F.
App’x 340, 345 (4th Cir. 2013) (recognizing plaintiff’s § 1983 claim against officer
where officer “affirmatively acted to interfere with execution of the warrant by
conspiring with [the primary wrongdoer] to evade capture and remain at large”). In
Robinson, a woman filed assault charges against her husband and a warrant was issued
for his arrest. Id. at 341. The defendant, an officer with the Baltimore City Police
Department, “withheld the warrant from the domestic violence unit that was responsible
for serving it[,] . . . warned [the husband] about the warrant[,] and sent him text messages
to help him avoid capture.” Id. When the husband later arrived at police headquarters,
the defendant “refused to serve or arrest him, falsely claiming that the warrant could not
be found.” Id. Eventually, the woman requested and obtained a protective order against
her husband, only to be attacked by him in broad daylight as she left the courthouse. Id.
The woman later died of the injuries she sustained in the attack, and her children and
estate sued the officer under § 1983. Id.
In addressing the Robinson plaintiffs’ state-created danger theory, the court found
that the officer’s “affirmative acts in the conspiracy with [the husband] ‘create[d] the
dangerous situation that resulted in a victim’s injury.’” Id. at 344 (quoting Pinder, 54
F.3d at 1177). As such, the court regarded the officer’s actions as having directly harmed
the victim. Id. at 345. The court emphasized that the officer’s actions went beyond
simply failing to execute the arrest warrant—which would have been simple inaction;
instead, the officer “affirmatively acted to interfere with execution of the warrant by
conspiring with [the husband] to evade capture and remain at large.” Id. Like the officer
in Robinson, McBride can be said to have “conspired” with Herman by allegedly
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advising him to keep his interactions with plaintiff out of public view. Similarly,
Spitulski’s alleged false statements to other GCHS employees may have covered up the
impropriety of Herman’s actions by offering some legitimate explanation for otherwise
suspicious activities.
The court recognizes that there is some tension between plaintiff’s state-created
danger theory and the Fourth Circuit’s statement in Doe v. Rosa that “[t]he ‘concept of
affirmative acts’ should not extend ‘beyond the context of immediate interactions
between the [state actor] and the plaintiff.’” Rosa, 795 F.3d at 439 (quoting Pinder, 54
F.3d at 1176 n*). However, this statement was drawn from a footnote in Pinder v.
Johnson which directs this instruction to “omission cases.” 54 F.3d at 1176 n* (“[C]ourts
should resist the temptation to inject this alternate framework into omission cases by
stretching the concept of ‘affirmative acts’ beyond the context of immediate interactions
between the officer and the plaintiff.”). Indeed, the Rosa court appeared to recognize this
distinction when it addressed the aforementioned Robinson case. Though the court did
note that the Robinson case was unpublished, it also distinguished Robinson on the
merits, stating that the conduct at issue in Robinson “was far more than a mere passive
failure to act; the type of omission claim which the court rejected in Pinder.” Rosa, 795
F.3d at 442 (quoting Robinson, 536 F. App’x at 344) (emphasis added). Thus, the Rosa
court recognized the validity of its prior holding in Robinson, and confirmed that where a
state actor engages in truly affirmative acts, such acts may give rise to liability on a statecreated danger theory even if such acts occurred outside of the “immediate interactions
between state actor and the plaintiff.” Id. at 441–42. This interpretation of Rosa is not
only consistent with Pinder and Robinson, but is also consistent with common sense; a
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state actor, or any other person for that matter, can take any number of actions that would
increase the risk of harm to others without actually interacting with them.
As discussed above, the amended complaint indicates that the moving defendants
undertook such actions here. Therefore, the court finds that plaintiff has alleged
sufficient factual material to state a viable claim under the state-created danger theory.
IV. CONCLUSION
For the foregoing reasons the court GRANTS the moving defendants’ motion to
dismiss as to plaintiff’s supervisory liability claims and DENIES the moving defendants’
motion to dismiss as to plaintiff’s state-created danger claims.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
June 10, 2016
Charleston, South Carolina
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