Lisa SHIVELY, on her own behalf and on behalf of her minor child other T.S., Estate of James Shively, on behalf of Lisa A. Shively, Executrix originally named as James Shively, Plaintiffs-Appellees, v. GREEN LOCAL SCHOOL DISTRICT BOARD OF EDUCATION, Defendant, and Michael Nutter, Wade Lucas, Cindy Brown, Mark Booth, Jeff Miller, Jeff Wells, in their official and individual capacities, John Doe 1 through 10, Defendants-Appellants.
No. 13-3423.
United States Court of Appeals, Sixth Circuit.
Aug. 27, 2014.
579 Fed. Appx. 348
BEFORE: GRIFFIN, WHITE, and STRANCH, Circuit Judges.
Defendant school officials appeal the district court‘s denial of their motion to dismiss on qualified immunity and state-law immunity grounds. The district court denied qualified immunity to all Defendants on Plaintiffs’ Fourteenth Amendment substantive due process and equal protection claims on the ground that Defendants failed to prevent or respond to ongoing gender-and religious-based harassment and bullying, and denied Defendants statutory immunity from state-law claims of negligence and malicious conduct. We AFFIRM in part, REVERSE in part, and REMAND to the district court.
I.
The district court stated the following pertinent facts:
Plaintiffs Lisa and James Shively filed this action under
The Shivelys allege that T.S. is Jewish, that few Jews attend Green Local School District, PID 123, that the named Defendants are “responsible for the implementation of all official governmental laws, policies, regulations, and procedures” governing the Green Local School District, PID 121-23, and that the harassment and bullying faced by T.S. took the form of “constant name-calling, harassment based on her religion, teasing and verbal intimidation, and on several occasions, physical violence.” PID 123. The district court observed that bullying-physical, verbal, and online-went on for several years, including:
a) Students regularly said she would “rot in Hell” because she did not believe in Jesus Christ; she was regularly called a “dirty Jew” or “Hitler;”
c) She was tripped, shoved, hit, kicked, had her books knocked out of her hands on a regular basis;
d) In September, 2007, T.S. was stabbed in the leg with a pencil during class; T.S. had to be transported to an urgent-care center, where the tip of the pencil was removed from her leg with a scalpel;
e) In April, 2008, Mrs. Shively informed Defendant Wade Lucas, then the superintendent of schools, that she would keep T.S. out of school until the bullying situation was addressed; Mrs. Shively kept T.S. out of school for one week, but eventually brought her back to school when nothing was done to address the situation;
f) In September and October, 2008, T.S. was verbally harassed on a daily basis, called “a fucking Jew” by several boys as she got on the bus; the bus driver never disciplined the boys or filed any sort of report to the school district;
g) On October 14, 2008, two boys spat on T.S. on the bus[;]
h) In November, 2009, T.S. was assaulted by a boy in the choir room at school, causing T.S. to have to be taken to the hospital and to wear crutches for several weeks. After the incident, the boy who assaulted T.S. and others continued to verbally harass and threaten T.S., telling her they would break her crutch over her head;
i) In October, 2010, several students created a Facebook page, entitled, “If you think T.S. is a whore and needs to go back to 8th grade, join!” The mother of one of the girls who created the page posted comments on the page;
j) In January, 2011, two students at Green High School created a “kill list” which included T.S.‘s name as a target for being killed or hurt. While school officials assured Mrs. Shively that the perpetrators would never be able to set foot in the high school again, one of the perpetrators was seen by T.S. in the cafeteria just three weeks after the incident;
k) On August 24, 2011, the first day of the current school year, T.S. was helping with a “Club Fair,” a program meant to showcase the various clubs students can join, when students began shouting “Jew” at her from across the cafeteria;
l) On September 20, 2011, a female student approached T.S. in the cafeteria in front of other students and called T.S. a “whore,” among other names;
m) On September 30, 2011, T.S. endured an entire day of teasing and harassment from students between and during class.
Shively, 2013 WL 774643, at *1-2.
The Shivelys allege that all named Defendants knew of the ongoing harassment because of the several instances in which Lisa Shively notified school officials, police, and school guidance counselors.
The defendants knew about the harassment because plaintiff Lisa Shively, T.S.‘s mother, visited, e-mailed and called whichever school T.S. was attending at the time on numerous occasions to complain about the bullying, to ask that something be done, and to warn school officials that T.S. was depressed because of the constant harassment; on several occasions, Mrs. Shively contacted law enforcement authorities, including a resource officer who worked inside the school.
PID 125-26. The Shivelys further allege: Despite being told repeatedly about the bullying and harassment, defendants did nothing to stop or diminish the harass-
PID 126. On October 3, 2011, Mrs. Shively informed school officials that T.S. could no longer attend Green High School because of the bullying and the school‘s failure to respond to it. PID 125.
Defendants filed a motion for a judgment on the pleadings pursuant to
II.
This court reviews de novo a district court‘s decision on a motion for judgment on the pleadings as well as a motion to dismiss under
III.
Defendants first argue that the Shivelys failed to plead with particularity facts alleging each administrator violated a constitutional or statutory right. Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. Because vicarious liability is inapplicable to § 1983 claims, a plaintiff must plead that each government-official defendant, through the official‘s own individual actions, has violated the Constitution. Id.
Defendants argue that the Shivelys fail to specifically allege that Defendants violated T.S.‘s rights to due process and equal protection, and the district court erred when it failed to review the allegations against each Defendant and instead summarily denied immunity to all.
First, in Iqbal, the Supreme Court discussed its subject-matter jurisdiction to address the denial of a motion to dismiss under the collateral-order doctrine, holding that appellate jurisdiction is not confined to the ultimate issues relevant to the qualified immunity defense itself, but may be based on the complainant‘s failure to state a claim. Iqbal, 556 U.S. at 673, 129 S.Ct. 1937 (citing Hartman v. Moore, 547 U.S. 250, 257, n. 5, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). The Court opined that whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded, holding that the sufficiency of Iqbal‘s pleadings was both “inextricably intertwined with” (citing Swint v. Chambers Cnty. Comm‘n, 514 U.S. 35, 51, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995)) and “directly implicated by” the qualified immunity defense. Iqbal, 556 U.S. at 673, 129 S.Ct. 1937 (citing Hartman, 547 U.S at 257, n. 5); see also Heyne, 655 F.3d at 561, 565 (reviewing whether Heyne‘s complaint adequately and separately alleged a plausible constitutional violation by school officials claiming qualified immunity).
Second, Iqbal explained that to survive a motion to dismiss on the grounds of qualified immunity, a plaintiff must allege sufficient facts, accepted as true, to state a claim for relief that is plausible on its face. 556 U.S. at 678, 129 S.Ct. 1937. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for misconduct alleged. Id. Determining whether a complaint states a plausible claim for relief is a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. at 679, 129 S.Ct. 1937.
In the instant case, the facts alleged in the complaint are sufficient to plausibly suggest that the school official Defendants knew about the ongoing harassment and bullying faced by T.S. and failed to act. Defendants Wade Lucas, Mark Booth, and Michael Nutter are specifically alleged to have had knowledge of and to have made decisions regarding complaints of harassment. Defendants Cindy Brown, Jeff Miller, and Jeff Wells served as Principal of Green Intermediate School, Principal of Green Middle School, and Assistant Principal of Green Middle School, respectively. The complaint alleges that Defendants “knew about the harassment because plaintiff Lisa Shively, T.S.‘s mother, visited, emailed and called whichever school T.S. was attending at the time on numerous occasions to complain about the bullying, to ask that something be done, and to warn school officials that T.S. was depressed because of the constant harassment; on several occasions, Mrs. Shively contacted law enforcement authorities, including a resource officer who worked inside the school.” PID 126. Defendant principals’ specific roles were such that they would likely have known based on the factual allegations. The Shivelys also allege that Defendants “knew or should have
Given the number and variety of ways the Shivelys allege they contacted school officials, the Shivelys notification of police, medical care professionals, and the guidance counselor, and the Superintendent‘s knowledge of the ongoing harassment, the complaint plausibly alleges that Brown, Miller, and Wells, as the Principals and Assistant Principal of schools attended by T.S., knew about the ongoing student-on-student bullying and, given their positions of authority, were involved in making decisions regarding how it would be addressed. This conclusion is also supported by the procedural posture of this case, where litigation has continued during the pendency of this appeal and Brown, Miller, and Wells are proper Defendants before this court on the Shivelys’ state-law claims. We conclude that the district court did not err in finding that the Shivelys’ complaint meets the standard necessary to comply with Rule 8. See Iqbal, 556 U.S at 683-84, 129 S.Ct. 1937.
IV.
Defendants argue they are entitled to qualified immunity on the Shivelys’ due process and equal protection claims. The defense of qualified immunity shields government officials performing discretionary functions from liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). “Qualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (internal quotation marks and citations omitted). This standard requires courts to examine the right asserted “at a relatively high level of specificity, and on a fact-specific, case-by-case basis.” O‘Malley v. City of Flint, 652 F.3d 662, 668 (6th Cir.2011) (internal quotation marks and alterations omitted).
This court follows a three-step analysis when reviewing a district court‘s decision concerning qualified immunity. See Gaspers v. Ohio Dep‘t of Youth Serv., 648 F.3d 400, 412 (6th Cir.2011). First, we evaluate whether the facts demonstrate that a constitutional violation has occurred. Id. (citing Holzemer v. City of Memphis, 621 F.3d 512, 519 (6th Cir.2010)). Second, we determine whether the violation involved a clearly established constitutional right of which a reasonable person would have known. Id. Third, we consider whether the plaintiff has offered-here, by allegation in the complaint-sufficient evidence to indicate that what the official allegedly did was objectively unreasonable in light of clearly established constitutional rights. Id. While conducting this review, we view the facts in the light most favorable to the plaintiff. Id. (citing Siggers-El v. Barlow, 412 F.3d 693, 699 (6th Cir.2005)).
Defendants argue that the Shivelys fail to state a substantive due process claim because Defendants did not affirmatively act to increase the risk of harm to T.S. See Jones v. Reynolds, 438 F.3d 685, 691 (6th Cir.2006) (officers who came upon and failed to stop an illegal drag race did not affirmatively act or increase risk of danger to plaintiff).
As a general rule, the Due Process Clauses of the
[A] plaintiff may bring a substantive due process claim by establishing (1) an affirmative act by the State that either created or increased the risk that the plaintiff would be exposed to private acts of violence; (2) a special danger to the plaintiff created by state action, as distinguished from a risk that affects the public at large; and (3) the requisite state culpability to establish a substantive due process violation.1
Id. (quoting Schroder v. City of Fort Thomas, 412 F.3d 724, 728 (6th Cir.2005)). In determining whether an affirmative state act increased the risk of harm to an individual, the question is whether the individual was safer before the state action than after it. Id. at 539.
Defendants correctly argue that this court does not find a state-created danger where a victim would have been in the same or greater danger had the officials not acted. See McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 466 (6th Cir.2006). In McQueen, a first-grade student shot another child in his class while his teacher was out of the room, twenty-seven feet down the hall. Id. at 463. This court opined that leaving the students unsupervised was not an affirmative act that increased the risk of violence because the danger was created by the perpetrator‘s presence in the room with the victim, and there was no guarantee that had the teacher been in the room, the perpetrator would have been discouraged from shooting or the teacher could have prevented the shooting. Id. at 465-66. However, this court distinguished McQueen from an Eighth Circuit case where a school employee suspected the occurrence of a sexual assault and “placed the boys in the shower together [the next day] to confirm his suspicions,” id. at 467 (citing Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir.1993)), explaining that “[s]imply walking out of the room without any inkling that the [perpetrator] had a gun is different both in degree and kind.” Id.
Although other school harassment cases from this Circuit granted immunity to defendants on state-created danger claims, in
In any event, even assuming there was a state-created danger, reasonable officials would not have believed that their conduct was unlawful based on clearly established law. Defendants correctly argue that federal cases addressing the state-created danger doctrine have not previously found school officials liable for student-on-student harassment. Although these cases are distinguishable, the fact remains that at the time Defendants violated T.S.‘s substantive due process right, it was not clearly established that school officials violate due process by failing to address student-on-student harassment. Accordingly, we reverse the district court‘s denial of qualified immunity for violations of T.S.‘s substantive due process right.
B.
The Shivelys allege that T.S. was deprived of an equal education opportunity as a result of religion-based bullying and harassment known to Defendants, in violation of the Equal Protection Clause of the
[T]o demonstrate a violation of the
Williams v. Port Huron Sch. Dist., 455 Fed.Appx. 612, 618 (6th Cir.2012) (citing Gant, 195 F.3d at 139-40). “We agree
The standard for deliberate indifference “announced by the Supreme Court is a ‘clearly unreasonable response in light of the known circumstances.‘” Vance v. Spencer Cnty. Pub. Sch. Dist., 231 F.3d 253, 260 (6th Cir.2000) (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 648, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999)).2 These claims do not require proof that “the defendant fully appreciated the harmful consequences of that discrimination, because deliberate indifference is not the same as action (or inaction) taken maliciously or sadistically for the very purpose of causing harm.” Williams, 455 Fed.Appx. at 619 (citing Gant, 195 F.3d at 141).
Patterson v. Hudson Area Schools, 551 F.3d 438 (6th Cir.2009), is instructive. In that case, this court declined to grant qualified immunity to school officials where, as here, an individual student suffered bullying that was “severe and pervasive” and “lasted for years” where the response taken by the officials was inadequate “to deter other students from perpetuating the cycle of harassment.” Id. at 447-48. This court held that “a reasonable jury certainly could conclude” that “the school district‘s standard and ineffective response to the known harassment became clearly unreasonable.” Id. at 449. “We cannot say that, as a matter of law, a school district is shielded from liability if that school district knows that its methods of response to harassment, though effective against an individual harasser, are ineffective against persistent harassment against a single student.” Id. at 448; see also Vance, 231 F.3d at 262-63 (declining to grant qualified immunity because once school knew its response to ongoing harassment of female student was inadequate “it was required to take further reasonable action in light of the circumstances to avoid new liability.“); cf. Williams, 455 Fed.Appx. at 619 (holding school officials were not deliberately indifferent where they made extensive efforts to combat racial harassment, including notifying police, holding a student assembly, meeting with the NAACP, discussing parents’ concerns, and hiring management consultants).
Here, the Shivelys’ allegations amply set forth facts sufficient to establish the requisite intent or indifference. Defendants failed to enforce the school policy on harassment. It is well settled law that departures from established practices may evince discriminatory intent. Nabozny, 92 F.3d at 455 (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977)). Further, Lucas acted as Superin-
knew to be ineffective to address severe and pervasive harassment that went on for years. Accordingly, the Shivelys have adequately pled that Defendants violated T.S.‘s right to equal protection.
The equal protection right to be free from student-on-student discrimination is well-established. See Williams, 455 Fed.Appx. at 619; Murrell, 186 F.3d at 1250-52; Flores, 324 F.3d at 1135. It is difficult to imagine how any school administrator could think he would not be liable for allowing unregulated religious and gender-based persecution that spanned a four-year period. In light of the case law, the Shivelys have pled facts that show Defendants were objectively unreasonable in failing to address their complaints of student-on-student harassment and are not entitled to qualified immunity on the Shivelys’ equal protection claim.
V.
Finally, the Shivelys allege state-law claims of negligence and/or gross negligence and malicious purpose.4 In order to establish a claim of negligence, a plaintiff must show: 1) defendant owed him a duty; 2) that duty was breached; 3) and that breach proximately caused plaintiff‘s injury. Titus v. Dayton Bd. of Ed., No. 17920, 2000 WL 84649, at *2 (Ohio Ct.App. 2000).
The individual Defendants claim statutory immunity. ”
The Shivelys allege that Defendants acted wantonly and/or recklessly and argue that generally, the issue of malice, bad faith, and wanton or reckless behavior is for the jury. See Fabrey v. McDonald Vill. Police Dep‘t, 70 Ohio St.3d 351, 639 N.E.2d 31, 35 (1994). A plaintiff is not required to affirmatively demonstrate an exception to immunity at the pleading stage because that would require the plaintiff to overcome a motion for summary judgment in his complaint. Instead, a plaintiff is only required to allege a set of facts which, if proven, would plausibly allow him to recover. See Mohat v. Horvath, 2013-Ohio-4290, ¶ 29, 2013 WL 5450296 (Ohio Ct.App.2013).
According to the Ohio Court of Appeals: One acts with a malicious purpose if one willfully and intentionally acts with a purpose to cause harm. Piro v. Franklin Twp., [102 Ohio App.3d 130, 656 N.E.2d 1035, 1041 (1995)]. Malice includes “the willful and intentional design to do injury, or the intention or desire to harm another through conduct which is unlawful or unjustified.” [Shadoan v. Summit Cnty. Children Serv. Bd., 2003-Ohio-5775, at ¶ 12, 2003 WL 22438893 (Ohio Ct.App.2003) (internal quotations omitted.)]. Bad faith is defined as a “dishonest purpose, moral obliquity, conscious wrongdoing, or breach of a known duty through some ulterior motive or ill will.” [Lindsey v. Summit Cty. Children Services Bd., 2009-Ohio-2457, at ¶ 16, 2009 WL 1478711 (Ohio Ct.App. 2009) (internal quotations and citations omitted)]. A person acts wantonly if that person acts with a complete “failure to exercise any care whatsoever.” Fabrey v. McDonald Police Dept., 70 Ohio St.3d 351, 639 N.E.2d 31, 35 (1994). One acts recklessly if one is aware that one‘s conduct “creates an unreasonable risk of physical harm to another[.]” [Thompson v. McNeill, 53 Ohio St.3d 102, 559 N.E.2d 705, 708 (1990), abrogated on other grounds Anderson v. Massillon, 134 Ohio St.3d 380, 983 N.E.2d 266 (2012) (internal quotations and citation omitted)]. Recklessness is more than mere negligence in that the person “must be conscious that his [or her] conduct will in all probability result in injury.” Fabrey, [639 N.E.2d at 35]. Spears v. Akron Police Dep‘t, No. 24847, 2010 WL 625822, at *4 (Ohio Ct.App. Feb. 24, 2010). “Distilled to its essence, and in the context of
The question of recklessness turns on whether Defendants knew of and could foresee harm to a student and whether they took actions in response to the5
In the instant case, the Shivelys have set forth facts demonstrating that Defendants’ actions were reckless under
VI.
For these reasons, we AFFIRM the district court‘s denial of qualified immunity to all individual Defendants on the Shivelys’ equal protection claim; AFFIRM the district court‘s denial of statutory immunity to all individual Defendants under the Shivelys’ state-law claims; REVERSE the district court‘s denial of qualified immunity to all individual Defendants on the Shivelys’ substantive due process claim; and REMAND to the district court for further proceedings.
GRIFFIN, Circuit Judge, concurring in part and dissenting in part.
Although I agree with the majority in most respects, I respectfully disagree with my colleagues regarding two issues.
The Supreme Court has explicitly held that “[b]ecause vicarious liability is inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official‘s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (emphasis added). Similarly,
“[t]his Court has consistently held that damage claims against government officials arising from alleged violations of constitutional rights must allege, with particularity, facts that demonstrate what each defendant did to violate the asserted constitutional right.” Lanman v. Hinson, 529 F.3d 673, 684 (6th Cir. 2008) (citing Terrance v. Northville Reg‘l Psychiatric Hosp., 286 F.3d 834, 842 (6th Cir.2002)). We must analyze separately whether [the plaintiff] has stated a plausible constitutional violation by each individual defendant, and we cannot ascribe the acts of all Individual Defendants to each individual defendant. Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 564 (6th Cir.2011).
The test, therefore, is whether, reading the complaint in the light most favorable to the plaintiff, it is plausible that each individual defendant‘s acts violated the plaintiff‘s clearly established constitutional right. Id. at 563-64.
The district court failed to separately analyze the constitutionality of each defendant‘s actions. Its failure to do so was error. Id. at 564. In the same vein, neither did the Shivelys “plead that each” individual defendant, “through [the individual defendant‘s] own actions” violated the constitution. Iqbal, 556 U.S. at 676, 129 S.Ct. 1937. The Shivelys did make specific allegations as to defendants Booth, Nutter, and Lucas (a school principal and two superintendents, respectively). The Shivelys’ complaint alleges that these defendants had knowledge of T.S.‘s harassment and that they made decisions about the district‘s response to that harassment. However, the complaint is deficient regarding defendants Wells, Miller, and Brown. The complaint does not allege any instances where Wells, Miller, or Brown were informed about T.S.‘s harassment or that they made any decisions about how to respond to that harassment.
The majority concludes that it is proper to allow claims against Wells, Miller, and Brown to proceed, despite the complaint‘s failure to make allegations regarding these defendants. I respectfully disagree. The majority reaches this conclusion on the theory that, because Wells, Miller, and Brown were administrators of the schools T.S. attended, it is reasonable to infer that they must have known about the harassment and made decisions in response to it. This, however, is precisely the type of inference that the law prohibits. Heyne, 655 F.3d at 564 (“We must analyze separately whether [the plaintiff] has stated a plausible constitutional violation by each individual defendant, and we cannot ascribe the acts of all Individual Defendants to each individual defendant.” (emphasis added) (citing Lanman, 529 F.3d at 684 and Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 512-15 (6th Cir.1991))). For these reasons, I would hold that we should address the claims against Lucas, Booth, and Nutter, as they were properly pleaded. However, the claims as to Wells, Miller, and Brown should be dismissed because the Shivelys have not shown that they are entitled to relief against these defendants.
Second, although I agree with the majority that the district court properly con-
Moreover, in my judgment, the Shivelys could not establish a due process violation in any event. As the majority notes, generally “a State‘s failure to protect an individual against private violence ... does not constitute a violation of the due process clause.” S.S. v. Eastern Kentucky Univ., 532 F.3d 445, 456 (6th Cir.2008). A failure of the state to protect a citizen is only cognizable if the plaintiff can establish that the “state-created danger exception” is met. This exception is satisfied if the plaintiff can show: (1) an “affirmative act[] by the state which either create[s] or increase[s] the risk that an individual will be exposed to private acts of violence“; (2) a “special danger“; i.e., that the state‘s actions “place[d] the victim specifically at risk, as distinguished from a risk that affects the public at large“; and (3) that the state “kn[ew] or should have known that its actions specifically endangered the individual.” McQueen v. Beecher Cmt‘y Sch., 433 F.3d 460, 464-70 (6th Cir.1999) (internal citations and quotation marks omitted).
Critical to the determination in this case is the first prong of the test-whether plaintiffs have alleged an “affirmative act[] by the state that either create[s] or increase[s] the risk that [T.S. would] be exposed to private acts of violence.” Id. at 464. Indeed, the Shivelys were required to allege that defendants took some affirmative act, but ultimately, their theory of the case is precisely the opposite-that defendants did not act, and that their failure to act is what permitted T.S.‘s harassment to continue.1 The thrust of the Shivelys’ allegations are that Booth, Nutter, and Lucas knew about the violence and harassment to which T.S. was subjected and failed to act. Repeatedly, the Shivelys assert that defendants are not entitled to qualified immunity because “defendants did nothing to stop” the violence and “fail[ed] to address” the violence. However, this court has specifically held that a “failure to act is not an affirmative act under the state-created danger theory.” Cartwright v. City of Marine City, 336 F.3d 487, 493 (6th Cir.2003). See also Langdon v. Skelding, 524 Fed.Appx. 172, 176 (6th Cir.2013) (holding no affirmative state action where “[t]he facts merely show that [the government] did not do enough to investigate the complaints of [child] abuse, and this is a mere failure to act“); Jasinski v. Tyler, 729 F.3d 531, 540 n. 5 (6th Cir.2013) (opining that the plaintiff‘s argument that the government‘s failure to provide her with previous child protective service complaints was the plaintiff‘s “least compelling argument for an affirmative state action“); Schroder v. City of Fort Thomas, 412 F.3d 724, 728-29 (6th Cir.2005) (holding that the failure to respond to parents’ complaints about the failure to enforce a resi-
For these reasons, I respectfully dissent in part, but concur in the remainder of the majority‘s opinion.