Morrow v. Balaski, No. 11-2000

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtMcKEE
PartiesBRITTANY MORROW; EMILY MORROW, Minors, In Their Own Right, And By Their Parents and Natural Guardians, Bradley Morrow and Diedre Morrow; BRADLEY MORROW; DIEDRE MORROW, Individually, Appellants v. BARRY BALASKI, Individually; THE BLACKHAWK SCHOOL DISTRICT
Decision Date05 June 2013
Docket NumberNo. 11-2000

Minors, In Their Own Right, And By Their Parents
and Natural Guardians, Bradley Morrow and Diedre Morrow;
BRADLEY MORROW; DIEDRE MORROW, Individually, Appellants

No. 11-2000


Argued on October 10, 2012
Opinion Filed: June 5, 2013


On Appeal from the District Court
for the Western District of Pennsylvania
(No. 2:10-cv-00292)
Chief Magistrate Judge Lisa Pupo Lenihan

Before: McKEE, Chief Judge, SLOVITER, SCIRICA,
VANASKIE and NYGAARD, Circuit Judges.

Albert A. Torrence, Esq. (ARGUED)
Attorney for Appellants

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Charles W. Craven, Esq. (ARGUED)
John J. Hare, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin

Scott G. Dunlop, Esq.
Teresa O. Sirianni, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
Attorneys for Appellees

McKEE, Chief Circuit Judge, with whom SLOVITER,
SCIRICA, RENDELL, AMBRO (joins Section III B of the
majority only), SMITH, FISHER, CHAGARES,
HARDIMAN, and GREENAWAY, JR., Circuit Judges join.

As is so often the case, the issues in this appeal arise from unsettling facts presented by sympathetic plaintiffs.1 We are asked to decide whether public schools have a constitutional duty to protect students from abuse inflicted by fellow students under the circumstances alleged here.

Appellants, Brittany and Emily Morrow, and their parents, Bradley and Diedre Morrow, brought this action against Blackhawk School District and Blackhawk High School's Assistant Principal, Barry Balaski.2 The Morrows

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claim that Brittany and her sister Emily were subjected to bullying in the form of a series of threats, assaults, and acts of racial intimidation at the hands of a fellow student and her accomplice. Unable to obtain help from school officials, the Morrows were ultimately compelled to remove their children from their school. Thereafter, the Morrows brought suit alleging that school officials denied them substantive due process under the Fourteenth Amendment by not protecting Brittany and Emily. The Third Amended Complaint (the "Complaint") asserted a cause of action under 42 U.S.C. § 1983 and a supplemental state law claim for "negligence and/or gross or willful misconduct."

The District Court dismissed the Complaint based on our decision in D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir. 1992) (en banc). There, we concluded that the school did not have a "special relationship" with students that would give rise to a constitutional duty to protect them from harm from other students given the alleged facts. See id. at 1372 (finding that "no special relationship based upon a restraint of liberty exists here"). The District Court also held that the injury the Morrows complained of was not the result of any affirmative action by the Defendants. Accordingly, the court held that the Defendants are not liable under the "state-created danger" doctrine. The District Court therefore dismissed the Morrows' Complaint, and this appeal followed. The appeal was initially argued before a panel of this Court. Thereafter, we granted en banc review to reexamine the very important questions raised by the allegations in the Complaint.

We now affirm the judgment of the District Court and hold that the allegations do not establish the special relationship or the state-created danger that must exist before a constitutional duty to protect arises under the Fourteenth Amendment.


A. Factual Background

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Brittany and Emily Morrow attended Blackhawk High School in Beaver County, Pennsylvania.3 Beginning in January 2008, they were subjected to a series of threats and physical assaults by Shaquana Anderson, a fellow student. Specifically, on January 5, 2008, Anderson threatened Brittany by phone and on a MySpace blog.4 Two days later, Anderson physically attacked Brittany in the school's lunch room. Pursuant to its "No Tolerance Policy," the school suspended both girls for three days. Brittany's mother also reported Anderson to the local police at the recommendation of Assistant Principal Balaski. As a result, Anderson was charged with simple assault, terroristic threats, and harassment. Nevertheless, Anderson continued to bully Brittany and Emily. In fact, shortly after she returned to school, Anderson again attacked Brittany by attempting to throw her down a set of stairs. During that incident, Anderson allegedly called Brittany a "cracker," told her that she was "retarded" and "had better learn to fight back," and asked "why don't you learn to talk right?"

On April 9, 2008, Anderson was placed on probation by the Court of Common Pleas of Beaver County, Juvenile Division, and ordered to have no contact with Brittany. Five months later, Anderson was adjudicated delinquent by a Juvenile Master of that court, and was again ordered to have no contact with Brittany. Copies of both of these "no-contact" orders were provided to the school and to Assistant Principal Balaski.

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Despite the court's intervention, on September 12, 2008, Anderson boarded Brittany's school bus, even though that bus did not service Anderson's home route. Anderson threatened Brittany, and she elbowed Brittany in the throat at a school football game that evening. A few days later, Abbey Harris, Anderson's friend, struck Emily in the throat. These incidents were reported to school officials.

The Morrows subsequently met with school officials, but they responded by telling the Morrows that they could not guarantee Brittany and Emily's safety. Instead, rather than removing Anderson and her confederate from the school, school officials advised the Morrows to consider another school for their children. In October 2008, the Morrows enrolled their daughters in a different school.

B. Procedural History

The Morrows thereafter filed this suit pursuant to 42 U.S.C. § 1983, alleging a violation of their Fourteenth Amendment substantive due process rights.5 They also included a supplemental state law claim against Assistant Principal Balaski for "negligence and/or gross and willful misconduct." The Morrows acknowledge that the Fourteenth Amendment's Due Process Clause does not generally impose an affirmative duty on the state to protect individuals from harm caused by private citizens. However, they argue that the general rule is not applicable because the Defendants had a "special relationship" with Brittany and Emily. They also argue that the Defendants are liable because they created the dangerous situation in which Brittany and Emily found themselves, and that circumstance gave rise to a duty to protect the Morrow sisters from that danger.

The District Court dismissed the Morrows' Complaint with prejudice, and declined to exercise supplemental jurisdiction over the state law claim.6 In its written opinion,

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the District Court explained that we have held that there is no special relationship between public school authorities and students. The court also concluded that the Morrows had "identified no action of the Defendants that utilized their authority in a way that rendered Minor Plaintiffs more vulnerable than they would have been otherwise." Morrow v. Balaski, No. 10-cv-292, 2011 WL 915863, at *5 (W.D. Pa. Mar. 16, 2011). Although the District Court noted that it was "sympathetic to Plaintiffs' plight," it nevertheless concluded that the Morrows "have not stated a cause of action under current Third Circuit case law." Id.

This appeal followed.7


Our review of a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6) is plenary. Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010). "Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court finds that plaintiff's claims lack facial plausibility." Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). Although we must accept the allegations in the complaint as true, "we are not compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion couched as a factual allegation." Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations and internal quotation marks omitted).


To state a claim under 42 U.S.C. § 1983, a plaintiff must allege a person acting under color of state law engaged in conduct that violated a right protected by the Constitution or laws of the United States. Nicini v. Morra, 212 F.3d 798,

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806 (3d Cir. 2000) (en banc). Accordingly, "[t]he first step in evaluating a section 1983 claim is to 'identify the exact contours of the underlying right said to have been violated' and to [then] determine 'whether the plaintiff has alleged a deprivation of a constitutional right at all.'" Id. (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998)).

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