*4 NYGAARD, Circuit Judge. Phillips (“Phillips”), individually Jeanne capacity and in her as administrator of the son, estate of her decedent Phillips, appeals the District Court’s dismissal of against her claims various defendants for § of 42 violations U.S.C. 1983. The Dis Court, trict in deciding a motion under 12(b)(6), required to ac Fed.R.Civ.P. cept as true all factual allegations in the complaint and draw all from the inferences facts light most favorable Worldcom, Inc. v. Graphnet, Phillips. Inc., (3d Cir.2003). Moreover, in the event a fails to *5 claim, state unless would amendment be futile, the District Court give plain tiff the opportunity to amend her com Fauver, plaint. Shane 113, 116 (3d Cir.2000). Because the District Court dictates, did not follow these will re we verse and part remand.
I. typical As is state-created cases, the facts here are trag- inescapably Philip Ignelzi, A. Esq. (Argued), Michael ic. Beginning 2003, in October of Michael A. Murphy, Esq., Ogg, Cordes, Murphy & Michalski, who was employed by the Alle- Ignelzi, PA, Pittsburgh, for Appellant. gheny County 911 Call Center as a dis- patcher, position used his to surreptitious- Scott Dunlop, Esq., G. J. Pol- Stephen ly gain to access unauthorized information. jak, Esq. (Argued), Johnson, Alan E. Esq., Specifically, Michalski ran multiple Marshall, Warner, Dennehey, Coleman & searches of the 911 Call computer Center’s Goggin, PA, Pittsburgh, Appellees for network and databases in an attempt to Regional Communications, Northwest locate the whereabouts of his girl- former Nussbaum, Tush, Deutsch, Craig, Ging, friend, Ferderbar, Gretchen and her then- Zurcher, and Cestra. boyfriend, Phillips. By 19, Mark October Kobee, Wendy Esq., Wojeik, Michael H. 2003, Nussbaum, Daniel who Miehal- Esq., Office of Allegheny County Law De- supervisor, ski’s became aware Michal- partment, PA, Pittsburgh, Appellees ski’s placed actions and Michalski on a County Allegheny and Allegheny Coun- suspension, one-week but Michal- allowed ty 911. ski job to on remain for a week. The
day effect, the suspension before took Mi- FISHER, Before: NYGAARD, and again chalski used the 911 Call Center’s ROTH, Circuit Judges. computer network and databases without clear, isWhat is unclear. record son—the informa- personal to access authorization however, also contacted that Nussbaum Michalski Phillips. Mark regarding tion Phillips’ Depart- motor Township Mark Police accessed the McCandless specifically in an registrations plate license and volatile notify vehicle them of Michalski’s ment to Phillips’ Mark and locate track to effort, effort howev- made no Nussbaum state. whereabouts. police departments er, contact the Borough of Carne- Township or the hours of October Shaler evening
During morning Phillips, respec- hours Octo- early and Ferderbar gie where Michal- suspension, while Mi- Despite recognizing ber tively, lived. calls telephone numerous ski made Center’s the 911 Call had used chalski Danielle spoke with 911 Call Center Phillips, Mark to track system computer those tele- During Craig. Brian Tush Mi- detain no effort to made Nussbaum informa- calls, requested Michalski phone reaching Mark chalski, him from to deter locating him assist that would tion Mi- Phillips of to warn Mark Phillips or Craig assisted Michal- Tush Phillips. behavior. violent potentially chalski’s accessing unau- they were ski, aware contact- day, same Michalski Later that no had information personal thorized Center, 911 Call at the dispatchers dispatchers ed jobs as to their relationship Deutsch, Tush, Craig, Leonard including Center. the 911 Call Phillip Zurcher and Ryan Ging, Susan contacted Nuss- Ferderbar Gretchen of his Cestra, circumstances explain the that Michalski him to inform baum that he Michalski indicated termination. computer Center’s the 911 Call accessed and that for” nothing. left live “had *6 to dispatcher aas position in his system going Phillips Mark were and to Ferderbar enabled him which information obtain present in his him “pay putting and Mark to her and locate track by Michal- After confirm- this Despite contact Phillips’ residence. situation.” Mark ac- improperly ei- had contacted ski, dispatchers Michalski ing that none of Phil- Mark regarding or the information cessed or Mark Ferderbar ther Michalski at met with Nussbaum lips, Township of departments police him about and confronted Center 911 Call Later Carnegie. Borough of Shaler use of and unauthorized repeated his and killed afternoon, shot Michalski Mi- system. computer 911 Call Center’s handgun. Michalski Phillips with had that he admitted Nussbaum chalski her and and killed Ferderbar shot also sys- computer Center’s the 911 Call used sister. infor- unauthorized access to gain tem of her as Administratrix Phillips, Jeanne Phillips, and Nuss- regarding Mark mation defendants, estate, sued numerous son’s employment Michalski’s terminated baum Allegheny County, Allegheny including Call Center. the 911 and 911, Nussbaum Supervisor 911 County ap- “volatile Michalski’s Recognizing Deutsch, Tush, Craig, Dispatchers 911 concerned apparently pearance” Cestra, viola- alleging Zurcher Ging, act, a violent might commit Michalski 42 under rights Phillips’ civil tions of Mark calls. telephone two placed Nussbaum through pen- alleging, § U.S.C. message a voicemail either left Nussbaum action, death wrongful jurisdiction, dant warning telephone cellular on Ferderbar’s response, action. In survivorship and a. guard be on careful and her to be Phillips’ claims moved to dismiss Appellees per- her in warned or Nussbaum Michalski 12(b)(6) pursuant to Federal Rule plaintiffs and the that defendants had judge granted conduct, district the motion.1 engaged parallel plead- but had
ed no set of facts making
plausible
II.
such conduct
product
was the
of a conspir-
In
acy.
decision,
reaching this
the Su-
jurisdiction
We have
pursuant
to 28
preme
rejected
language that long
§
U.S.C.
1291. The standard of review for
12(b)(6)
part
had formed
of the Rule
stan-
12(b)(6)
a dismissal under Fed.R.Civ.P.
dard, namely the
Conley
statement
Omnipoint
de novo.
Communications
Gibson,
355 U.S.
78 S.Ct.
2 L.Ed.2d
Enters., L.P. v. Newtown Township, 219
(1957),
that a
may not be
(3d Cir.2000).
Because this
dismissed
it appears beyond
“unless
doubt
requires
standard
tous
review the District
that the
can prove no set of facts
any
Court’s order anew and without
defer
in support of his claim which would entitle
ence,
pause
we
here to re-evaluate our de
him
45-46,
to relief.” Id. at
After argument, oral we par- ty” asked the paradigm for evaluating sufficiency ties to Twombly brief the impact decision’s of complaints. time, however, At the same pleading generally standards and on the Supreme Court never said that it in- appeal specifically. New issues in civil tended a change law, drastic in the procedure jurisprudence signifi- are more indeed convey strove to the opposite im- standards, cant pleading than which pression; are rejecting even in Conley’s “no key that opens access courts. set of facts” language, the Court does not Twombly, Supreme Court held appear to have believed that really it was plaintiffs failed to state a claim under changing the Rule 8 or Rule § 1 of the Sherman Antitrust Act. Therefore, framework. our review of how filing 1. Rather than its own motion to dis- District by entering Court closed the case *7 miss, Allegheny County stay filed a motion for judgment counts, for all defendants on all responsive pleading of time to file a pending Court did not have before it a motion to resolution of the motion to dismiss. County dismiss from the Allegheny County or oppose did not stay the motion to and the parties appeal 911. The do not mention granted District Court it. After consideration issue, presumably this because it makes no papers, of the granted the District Court light difference in of the fact that the Su- complaint motion to dismiss the and in its preme Court's Dep't decision in Monell v. final stay, granted order lifted the the motion Services, 658, Social 436 U.S. 98 S.Ct. entirety, to dismiss in judg- its and entered (1978) 56 § L.Ed.2d 611 bars 1983 suits ment for all defendants. The District Court against municipalities respondeat based on supplemental declined jurisdiction to exercise superior allege failed to facts remaining over Plaintiff's state law claims supporting pattern practice an official or and transferred the case to the Court of Com- giving claim injury. rise to constitutional Allegheny County. Pleas of Appellee mon Al- legheny County join did 911 not in the motion 2. See In re Litigation, Paoli R.R. YardPCB 221 stay, apparently and the District Court nev- (3d Cir.2000) ("de 461 required novo means er responsive it to file a pleading, likely inquiry [that] ... most court's is not limited because the District Court consid- Allegheny County ered or part any constricted the record ... 911 to be nor is or (which coextensive with either Northwest deference due the ... [under conclusions re- dismiss) view]”). filed a Allegheny motion to County (which stay). filed a Although motion to
231
12(b)(6)
determining
how Twombly
of Rule
has
altered review
Twombly
standard,
changed
§ 1
we start with what
by recognizing the
begin
cases
Twombly expressly leaves intact. The
it
decided.
Su-
in which was
antitrust context
(“We
reaffirmed that
preme Court
at 1963
Fed.R.Civ.P.
Twombly, 127 S.Ct.
e.g.,
See
“
only a
‘requires
plain
short
state-
proper
to address the
granted certiorari
claim
showing
pleader
ment of the
conspir-
an antitrust
pleading
standard
relief,’ in
‘give
is entitled to
order to
parallel
con-
through allegations
acy
defendant fair notice of what the ... claim
duct.”).
context,
§ 1
antitrust
Outside
”
rests,’
grounds upon
is and the
it
which
however,
question
the critical
is whether
require
this standard does not
Supreme
Court
and to what extent
12(b)(6)
allegations.” Twombly,
“detailed factual
general
altered the
Rule
standard.
(quoting Conley,
at 1964
S.Ct.
U.S.
Twombly,
Before
standard
99).
The Supreme
78 S.Ct.
Court
for decades. Our
been well-established
that,
12(b)(6)
also reaffirmed
on a Rule
in-
of the standard has
typical statement
the,
motion,
facts
must be taken as
structed that:
complaint may
true and a
dismissed
be
inquiry under Rule
applicable
The
merely
appears unlikely
because it
that the
12(b)(6)
are re-
is well-settled. Courts
can
prove those facts or will ulti-
well-pleaded allega-
all
quired
accept
mately prevail on the merits. See id. at
true and to
tions in the
1964-65,
Supreme
1969 n. 8. The
Court did
in favor
all reasonable inferences
draw
point
drawing
not address the
about
rea-
The
non-moving party.
inquiry
of the
plaintiff,
sonable inferences in favor of the
ultimately
plaintiffs
not whether
will
but we do not read its decision to under-
merits,
in a trial on the
but
prevail
principle.
mine that
they
op-
should be
whether
afforded
concepts
find
new
We
two
in support
to offer evidence
portunity
First,
Twombly.
general
in its
discussion
their claims. Dismissal under Rule
12(b)(6),
Supreme
of Rules
Court
12(b)(6)
ap-
it
appropriate
is not
unless
language
ap
used certain
does not
beyond
can
pears
doubt
ex
pear to have used before.
no
of facts in
of his
prove
support
set
attacked
plained
“[w]hile
claim
would entitle him to relief.
which
motion to dismiss does
by Rule
Props.,
In re
Ctr.
Inc. Sec.
Rockefeller
allegations,
factual
not need detailed
(3d Cir.2002)
Litig., 311 F.3d
215-16
plaintiffs
obligation to
provide
[Rule 8]
(internal
omitted).
com-
citations
Another
‘grounds’ of his
to relief re
‘entitle[ment]
standard,
which
mon formulation
conclusions,
quires more than labels and
*8
does not include the “no set of facts” lan-
a formulaic recitation of the elements
guage, reads:
a
of action
not do.” Twom
cause
will
of the
evaluating
propriety
the
dis-
(alteration in
bly,
at 1966. The Court
pleading.
in notice
Fair notice
allegations must be matters
complaint’s “[factual
8(a)(2) depends
type
Rule
on the
right
to raise a
to relief above
under
enough
complaints
require
n.
will
at least
Id. at 1965 & 3.
case—some
speculative level.”
allegations
factual
to make out a
some
Second,
Supreme
Court disavowed
“showing
pleader
is entitled to
many
language that
it had used
certain
relief,
give
in
the defendant fair
order
lan
“no set of facts”
times before—the
...
notice of what the
claim is and the
It is
Conley.
from
See id. at 1968.
guage
grounds upon
Twombly,
which it rests.”
language
that the “no set of facts”
clear
Indeed, taking
at
Twom-
127 S.Ct.
of the Rule
may
longer
part
no
be used as
bly
contemporaneous opin
the Court’s
12(b)(6) standard. As the Court instruct
—
Pardus,
U.S. -,
ion in Erickson v.
ed,
phrase
forgotten
is best
“[t]his
(2007),
127
167 L.Ed.2d
S.Ct.
1081
negative gloss
accepted
on an
incomplete,
in
together, we understand the Court to
been
pleading standard: once a claim has
where,
may
that a
arise
at
struct
situation
adequately, may
supported by
it
be
stated
point, the factual detail in a com
some
showing any set of facts consistent
plaint
undeveloped
is so
that it does not
complaint.”
in the
Twom
provide
type
a defendant the
of notice of
bly,
233
demanding
heightened pleading
spe
of
with
of facts consistent
showing any set
probability require
nor
imposing
cifics
complaint.” Twom
in the
the
1964, 1965,
14,
at
n.
ment. See id.
1973
Twombly,
After
at 1969 n. 8.
127 S. Ct
bly,
Indeed,
Twombly
the Court cited
mere
allege
longer
no
sufficient
it is
just days
authority
later as
for traditional
action;
“a
of
instead
of a cause
elements
Erick
principles.
Rule 8 and
See
suggestive of
allege
facts
son,
already recognized principles
C.
reading
Conley’s lan
hyper-literal
rejected
Twombly.3
guage
raised
question
The more difficult
Supreme Court
Twombly is whether the
language,
rejecting
Conley
requirement
imposed
“plausibility”
a new
to base its
was careful
Supreme Court
materially alters
stage that
pleading
id.
at the
pre-existing principles.
See
analysis
regime.
id. at
pleading
notice
See
emphasized
& n. 8. The Court
1968-69
(“Whether
(Stevens, J., dissenting)
opinion that it was neither
throughout
its
Cir.2006)
(3d
(compare
Conley
129-131
in which we recited
3. Recent cases
dissent), Pryor v. Nation-
majority opinion and
apply
hyper-
language
did not
it in the
but
Ass'n,
Collegiate
288 F.3d
rejects
al
Athletic
Twombly
include
literal
which
sense
Cir.2002),
(3d
Sterling
Levy
above),
v.
(in
564-65
cited
Leuthner
addition to those
Cir.2002).
Co.,
(3d
Pa.,
Holding
Shield Ne.
Blue Cross and Blue
*10
only
might
“Plausibility”
what it
mean.
is re-
the
actions will benefit
defen-
Court’s
cases,
treble-damages
requirement
or
lated to the
of a Rule 8
dants
antitrust
discussion,
sufficiency
general
a
the
“showing.”
its test for the
of
its
whether
Supreme
explained
concept
all
that the
complaint will inure to the benefit of
Court
defendants,
only
a
question
“showing” requires
is a
that
the
of a
notice of
civil
answer.”).
grounds,
distinguished
future will
The answer to this
claim and its
question
showing
pleader’s
difficult to divine. Numerous
such a
from “a
‘bare
is
“plausibility”
Twombly
references
averment
he wants relief and is enti-
”
concept
Twombly,
seem to counsel reliance on the
as
tled to it.’
factual for these claims. pose probability requirement Hawk, Schneider, Ridge at Red L.L.C. v. pleading stage,” “simply but instead calls (10th Cir.2007). Yet, enough facts to raise a reasonable ex Twombly repeatedly decision indicated pectation discovery will reveal evi that the not adopting apply Court was necessary dence of’ the element. Id. ing “heightened pleading standard.” 127 (“[W]e D. require height
S.Ct. at 1974
do not
pleading
specifics,
only
ened fact
but
As Professor
H. Cooper
Edward
enough facts to state a claim to relief that
out,
pointed
foregoing
has
all of the
discus
face.”).
plausible
on its
not
We are
sion can
proposition:
be reduced
this
opinion
in finding
confusing.
alone
See
8(a)(2)
right.
Rule
has it
H.
See Edward
(2d
e.g. Iqbal Hasty,
235 have existed.4 at issue that otherwise would not The litigation. stage of County, v. 443 F.3d clearly pleading Bright Westmoreland case satisfies in this (3d Cir.2006) showing 276, of standard, making (quotations a sufficient 281 and foot- true) (taken omitted); as to City factual matter see also Rivas v. enough *12 However, ways complaint. It be clear. we have never amend her does matter to danger found a state-created claim be or not a leave to whether seeks an allegation meritorious without sub- that if a amend. We have instructed com authority sequent showing dismissal, that state to plaint is vulnerable affirmatively exercised in some fashion. permit district court must a curative amendment, an amendment would unless complaint against in the inequitable Grayson May be or futile. v. sufficiently defendant Nussbaum do not (3d Hosp., view 293 F.3d State 108 allege “affirmatively.” Spe- that he acted Cir.2002) Fauver, (citing Shane v. 213 F.3d cifically, Phillips alleges that Nussbaum (3d Cir.2000)). Shane, 116 we held authority by notifying misused his dismissing that when for a failure to state wrong dangers authorities of the Michalski a claim: Also, posed Phillips. Phillips to Mark al- leges authority that Nussbaum misused his suggest judges district ex- [W]e by deferring employment Michalski’s sus- state, pressly appropriate, where pension, knowledge with full that Michal- has leave to amend within a using ski was the 911 Call Center’s com- time, specified period appli- and that puters improperly access confidential may cation for dismissal of the action be information Mark Phillips about —informa- if timely made amendment is not tion which he used to determine Mark forthcoming within that time. If the whereabouts, Phillips’ and to track his amend, plaintiff does not desire to he movements. This misuse of Nussbaum’s may appropriate file an notice with the authority, Phillips alleges, worked to Mark district court asserting his intent Phillips’ by exposing detriment him to a complaint, stand on the at which time an continuing by danger, allowing Michal- order to dismiss the action would be Phillips. Phillips’ ski to harm Mark diffi- appropriate. however, culty, allegations, is that these (quoting City Id. at 116 v. Borelli Read core, omissions,
their are not commis- (3d Cir.1976)). ing, F.2d 1 951 n. sions—inactions rather than actions. To Phillips given Because was not such an sure, sufficiently alleged be it has been opportunity, we will remand to allow her to performance that Nussbaum’s worked to complaint decide whether to stand on her Mark Phillips’ expo- detriment in terms of attempt proper amendment so as to But, danger. sure to only portion ly allege by an affirmative act defendant of our test. Nussbaum. jurisprudence requires Our that Phillips action, Turning to defendants allege an affirmative than Tush rather Craig, complaint we find that ade Bright, inaction or omission. 443 F.3d quately alleges they affirmatively by acted (citing D.R. v. Middle Bucks Area Sch., providing Michalski with confidential 911 Vocational Tech. (3d Cir.1992) (en banc)). computer information about Mark Phillips Phillips’ com- permitted Michalski to harm him. plaint does not allegation make such an and, allegation This against hence, satisfies this element of our Nussbaum no state danger analysis. state-created danger created claim sufficiently has been pleaded. However, pleading an affirmative act
Nonetheless, Judge the District a state enough: actor is not erred when he dismissed plead must also a direct relationship causal without offering Phillips opportunity plaintiffs between the affirmative act and Bucks, inferences drawn from those 455 reasonable County Kaucher harm. Cir.2006). (3d may well allegations, Phillips The direct be able 418, 432 satisfy the facts that would four prove between affirmative connection causal Craig (actively provid- state-created anal- elements of Tush actions requested respect Craig. confidential to Tush and ysis with ing Michalski and the ulti- Phillips) Therefore, depriva- has about information plead- is well right, mate harm to tion of an actual constitutional *13 alleges that after Tush complaint life process right ed. The to and substantive due confi- Michalski with Craig provided liberty and under the Fourteenth Amendment information, that Michalski used dential the District Court’s and we will reverse and Mark hunt down kill to contrary information determination.
Phillips. B. element, sum, Phillips has this under Craig Tush and alleged that sufficiently a properly allege To state-created dan which affirmative actions undertook claim, additionally plaintiff a must ger by ex- Phillips’ to Mark detriment worked ultimately harm caused plead that the was and that danger him to there posing fairly result of and a direct a foreseeable their relationship causal between direct Morse v. Lower Mer the state’s actions. actions. the defendants’ harm and Dist., (3d lon School to Cir.1997). discussion here divert our foreseeability, We to the Dis As by District holding the rectify an incorrect initially determined since trict Court As to this fourth point. this Court on in allegations complaint the there were “no analy danger or, element of our state-created history had a of violence that Michalski sis, District Court determined did, the any of the defendants were if he allege to that defen had failed Phillips violence,” history this the harm aware of “rendered Mark Craig and dants Tush by was not foreseeable. caused Michalski danger.” Spe to more vulnerable never held that to establish fore haveWe the cifically, the District Court noted allege seeability, allege to where the shoot complaint fails the harm had a “histo who person caused if the and reasoned that ing place, took Indeed, types these ry of violence.” Phillips’ not occur Mark shootings did or im unexpected from cases often come residence, unauthorized information ultimately cause seri which pulsive actions Craig did not render by Tush and provided Kneipp in example, harm. For ous This was sim danger. to him vulnerable (3d Cir.1996), Tedder, it F.3d 1199 was Phillips was ply wrong. Where an police officer left alleged that when prelimi At dispositive. killed is late at outside alone intoxicated woman to stage, is reasonable nary pleading experi ordinary common sense night, gained rel could have infer that Michalski (in this instance attributed ence Phillips’ house at Mark evant information officer) the officer of sufficiently informed whereabouts, which have could as his forseeability of harm to woman. stalking in Michalski directly assisted put was sufficient to him This information killing him. signifi leaving the woman notice of harm to her. the risk cantly enhanced reading of the unduly an crabbed Such incurred that the harm concluded to We denies inferences foreseeable. Id. Kneipp in on the woman entitled. Based complaint is which her at 1208. complaint and Phillips’ Rivas, Also, supra., require allege it was we an aware- part that because the state actors were emer- ness on of the state actors that technicians, knowledge rises to level of actual gency expertise medical their sufficiently awareness of risk that is con- them with concrete information equipped put crete to the actors on notice of the that a seizure victim not be re- should here, harm. Turning to the they strained. The information that clearly alleged such an awareness was put was sufficient to them on notice of the Craig. Tush they harm that would result if failed to tell police officers who arrived on the Craig Tush and were dispatchers emergency scene to assist medical Allegheny County at the 911 Call Center. technicians with the seizure victim. We Starting paragraph Phillips’ com that, concluded in the context aof state- plaint adequately establishes that Tush claim, created the harm to the Craig actually were aware based on *14 seizure victim was foreseeable. 365 F.3d concrete information the risk of harm. at 194. First, paragraph 23 establishes that after being suspended job, from his Michalski Morse, Conversely, in there was spoke called the 911 Call Center and allegation no that the school district had Craig. Paragraph alleges Tush and sufficiently concrete information about the requested that Michalski information that presented by perpetra risk of violence the locating would assist Phillips. Michalski tor or trespassers property other on school paragraph Phillips alleges that Tush put the school district on notice of the Craig assisted Michalski. The com might harm that result from a propped- 27) plaint additionally alleges (paragraph Therefore, open door. when the school that Tush and Craig were aware that the district employees, contrary to their own relationship between Ferderbar and Mi regulations, unlocked the door for the con chalski recently ended and that Mi work, perpetrator tractors to and the chalski in a distraught was mental state as the violent through incident entered that a result.5 door, open we held that the school district sufficiently lacked concrete information to At paragraph the complaint alleges consider its action foreseeable cause of that again Michalski contacted the 911 Call the harm to the teacher who was shot. As spoke Center and with Tush and Craig, explained, we harm conversation, the was “too attenuat among During others. this only ed” because the notice to the school allegedly Michalski indicated he “had district the harm might occur was nothing left to live for” and that Ferderbar person ultimately who shot the and Mark Phillips going pay “were loitering hallways teacher had been putting him in present his situation.” We Morse, the week killing. before the allegation putting view this Tush and F.3d at Knowledge 908-09. of someone Craig on notice that their in giving actions itself, loitering, in and of provide did not Michalski the unauthorized information defendants with notice of a risk violence. about Mark Phillips significantly enhanced adequately then, To plead foreseeability the risk of harm to him. alleged The paragraph complaint alleges 5. At specifically Craig does not aver that Tnsh and this, “[d]efendants were aware that the relation- they certainly were aware are "defen- ship between Ferderbar and Michalski had generic dants” in this case and the use of that recently ended and that Michalski was dis- term includes them. traught over this.” paragraph While this of harm to Mark Phil- enhancing the risk made Tush also by Michalski statement reason, “foreseeability” lips of the risk and for actually aware Craig Therefore, alleged here. properly Phillips. Mark foreseeability as alleges adequately foreseeability element Once District and the these two defendants danger test has been deter- state-created contrary will to the determination Court’s mined, allege must also be reversed. “fairly direct” the attack or harm is only noted that the The District of the defendant’s acts. Such “di- result to have ac- who were individuals adequately pleaded has been rectness” information Phillips’ personal cessed Al- Craig. Tush and against defendants were Tush and computers on the 911 unavoidably spe- fact though inquiry Therefore, dis- the Court also Craig. case, a distinction cific for each individual danger counts the state-created missed harm that occurs to an exists between remaining defendants. against all other under the or discrete individual identifiable that occurs to a circumstances and harm against gist no connection to “random” individual with defendants remaining individual Morse, 132 harm-causing party. See Cestra) are (Deutsch, Ging, Zurcher (to satisfy the element at 909 first 41 of the com 40 and paragraphs found in plaintiffs [must harm visited on “the alleges that Michal Paragraph 40 plaint. *15 than random at- more foreseeable be] individual defendants contacted ski tack.”). Marasco, In Estate Smith v. Deutsch, Cestra and Ging, Zurcher and (3d Cir.2003), example, for we 318 F.3d the circumstances explained that Michalski finding that reversed the District Court’s that he related dismissal and also of his was not harm caused to that Ferd live for and nothing left to “had fairly di- because it was not foreseeable pay Phillips going were and Mark erbar that the doing, In we concluded rect. so situation.” present him in his putting officers were police that some of the aforemen fact alleges that Paragraph and medical con- of Smith’s mental effort to con aware “made no tioned defendants obviously stress- Ferderbar, or combined with the Phillips Mark ditions tact either ” him in created the they placed two position These ful departments.... police could be only allegations that Smith possibility foreseeable paragraphs contain killed, remaining especially with the knowl- injured to the individual pertain that only Not do these without his medication. specifically. edge that he was defendants Smith, any affirmative F.3d at 507. allege fail to See Estate of actions, that foresee further conclude we Morse, however, we held as a matter these alleged against ability was also law, could not have that defendants remaining defendants. work- allowing that construction foreseen these against also fails complaint The door could unlocked back to use an ers alleged not been it has defendants because individual mentally disturbed permit a also enhanced the any part actions on their that in harm to an individual and cause to enter harm. As the District Court risk of that Morse, at 908. the school. See indicated, were not ac- these defendants “fairly harm was not way, the Put another to defen- of the actions attributed cused direct.” or to defendant Craig Tush and dants Here, Phillips caused to the harm actions of these alleged No Nussbaum. of Tush fairly direct result be viewed as was remaining defendants could First, Morse, actions. in Craig’s my- unlike heard almost made me want to kill Phillips girlfriend Mark was not a random individual self.” Id. at 299. The former guidance in went to a “happened” path who to be of dan- counselor with the Rather, note, expressing Michael, ger. Phillips Mark was the new concern for indicating well as that she wanted him to boyfriend girlfriend. of Michalski’s former stop “bugging” her. Id. After complaint reviewing alleges The Michalski knew note, guidance counselor, Pamela Phillips was Mark Ferderbar’s new Stiles, called Michael into her office and boyfriend. also alleges had a him explore discussion with Craig Tush and knew that Michalski was upset. whether he was Id. express- Stiles distraught and that he had threatened to ly any asked Michael if plans he had “pay.” make Mark Phillips We conclude himself, harm to which he responded “defi- sufficiently that the attack pleads nitely giving not.” Id. Despite this an- “fairly and murder of Mark was a swer, about one week after this meeting, direct” Craig’s result of Tush and activi- Michael killed himself. ties. Far from being unrelated to an in- tervening party, example, third Sanford then against claim Stiles filed directly individual affected and the school district which she by these defendants’ decisions. It is rea- the defendants were liable for Mi- sonable infer from the chael’s death under a state-created time, Michalski used the access and infor- theory. Id. 301. In affirming the district given mation to him the defendants to summary court’s judgment favor of the plan an assault on Mark Phillips and Ferd- defendants, court concluded Sanford erbar. that Sanford had not established that Stiles acted with the requisite degree of
C. culpability grounded to sustain a claim danger theory. state-created In so con- Next, turn question we to the of whether *16 cluding, we held there is a continuum properly has alleged Tush and upon which the degree culpability re- Craig degree acted with a of culpability quired to establish such a claim must be that “shocks the conscience.” Bright, 443 measured, relating to circumstances of the F.3d at 281. depends This determination each case. largely on the circumstances of the case.
Our most recent culpa- discussion The time in which government bility element of danger the state-created respond actors had to to an incident is of Stiles, test can be in found particular significance. example, For in Sanford (3d Cir.2006), opinion an Sanford, issued we stated that level of cul “[t]he four months after our Bright. decision in pability required to shock the conscience Sanford, was the mother of as the increases time state actors have to 16-year-old a boy who committed suicide a deliberate decreases.” at Id. 306. We short time after he high with a spoken then concluded although intent to guidance school counselor who had in- harm cause must be found in a “hyper- quired to boy’s as pressurized environment,” welfare and whether where officials any plans he had to harm himself. luxury San- are afforded the greater of a degree ford, at boy, 301. The Michael of deliberation and have time to make Sanford, had sent a girl- note to a former judgments,” “unhurried deliberate indif friend in which he said “I’ve heard 3 differ- is sufficient support allega ference ent you Ryan. stories about & I The one tion of culpability. Id. further We noted had no information which would have that deliberate indifference possibility “the a knowledge “hyperpressurized them in a envi- placed actual without might exist Hence, obvious the risk so “shock the of harm when ronment.” con- risk Finally, Id. be known.” science,” it should they have to have behaved with require a state circumstances where the to the results of deliberate indifference than something less exigent make actor to their actions.6 urgent but more decision “split-second” has sufficient i.e., a state judgment,” “unhurried than an facts, which, proven, would if demonstrate act “in a matter required to actor is deliberately these were defendants minutes,” consider a court must hours or indifferent, culpabili establishing a level “great disregarded a defendant whether conscience-shocking. ty Accept than substan- that was harm rather of serious risk complaint ing tial Id. risk.” true, alleges that Tush and complaint Therefore, Sanford, three under was dis Craig were aware Michalski used to deter can be possible standards up with Ferderbar traught over his break the con action state shocked mine whether getting him in yet they and confi assisted (2) (1) indifference; deliberate science: dential information on Ferderbar Phil that in negligence or arbitrariness gross Craig did not have to make lips. Tush (3) conscience; intent deed shocks judgments responding in any hurried Taking at 306. harm. 456 F.3d to cause requests for assistance. Un Michalski’s true, complaint leads allegations as cases, Tush like most state-created Tush and that defendants us to conclude did not have to make decision Craig in a acting “hyperpressur not Craig were all; they have refused Michalski’s could Instead, they had suf ized environment.” and terminated his inappropriate requests deliberately. The proceed ficient time immediately. call telephone asked alleged that Michalski obtaining Craig help for their Tush and allegations as true and Taking these computer information confidential therefrom, inferences drawing reasonable Phillips, assistance Ferderbar and Mark sufficiently allege does facts ultimately provided. Com they which only foresaw the that these defendants Also, paragraph plaint paragraph presented, their actions danger of harm Craig Tush telephones Michalski deliberately provid- indifferent but were others) he has and tells them that (among *17 more confidential informa- ing Michalski that to live for” and Ferderbar “nothing tion. putting pay for Phillips “would Mark that Phil- Court determined The District There him in this situation.” [Michalski] that the defendants’ lips allege failed to emergency here urgency no of or is sense the conscience” and behavior “shocked any allege not does either. a matter of law concluded as lead to an inference facts which would pro- in Craig Tush and alleged of conduct Phillips way to attack was on his Michalski person- unauthorized viding Michalski he was dispatchers that he told the concerning information Mark al here dispatchers house. The Phillips’ at case, particularly of each again clarify that the circumstances specific: “We 6. is Sanford possible. case, deliberation is extent to which danger the state any in state-created circumstances, deliberate indiffer- In some always shock the con- behavior must actor’s others, will not." will be required meet the ence sufficient. is But what science. upon 456 F.3d at conscience-shocking depend 309. level will 242 plaintiff.
from the 911 Call Center’s network and
exist between the state and the
required
analyze
does not rise to the
The District Court did not
this
databases
shocking
adequately allege
level of
action. The
element. To
conscience
such rela-
opined
tionship,
plaintiff
plead
District Court
no reasonable
need
facts
dispatcher
the same
position
“special relationship”
these dis
show
Morse,
patchers
liability.
would have understood his or her
basis for constitutional
Instead,
conduct to
132
at 912.
conscience-shocking.
relationship
be
Es
F.3d
Cf.
Marasco,
requirement
tate
v.
Smith
430 F.3d
the third element “contem-
(3d Cir.2005).
Court,
plates
154
The District
plaintiff
some contact such that the
here,
again
wrong.
was
was a foreseeable victim of the defendant’s
Morse,
acts
a tort sense.”
F.3d
First, the District
conclu
Court’s
relationship
912. The
that must be estab-
(Smith
sory reliance on Estate
Smith
plaintiff
lished between the state and the
II),
inappropriate.
The discussion in
“merely”
can be
plaintiff
was a
Smith II
focused on
application
victim, individually
foreseeable
or as a
qualified immunity—not
whether
Rivas,
member of a distinct class. See
plaintiff
appropriately
alleged
state-
relationship may
F.3d
202. Such a
exist
created danger
Although
claim.7
such a
plaintiff
where the
was a member of a
may
germane
determination
be
when de
persons subjected
discrete class of
to the
ciding qualified immunity, it is not rele
potential harm brought
by
about
determination
vant
to a
at the
Morse,
913;
state’s actions.
132 F.3d at
Second,
stage.
dismissal
our test
Rivas,
D.
personal
Ferderbar,
close
relationship with
Finally, the
state-created
with whom Michalski was
infatuated.
analysis requires that
relationship
some
Craig
Tush and
were aware of this connec-
government
7. To decide if an individual
offi-
often need to
determining
be resolved before
qualified
cial
immunity,
is entitled to
a court
whether defendant’s conduct violated a clear-
must first “determine whether the
ly
right.”
established
Curley
constitutional
deprivation
has
of an actual con-
Klem,
(3d Cir.2002).
277-78
A
Russo,
right
stitutional
at all." Wilson v.
qualified immunity
"prema-
decision as to
(3d Cir.2000) (citation omitted).
*18
ture when
disputes
there are unresolved
of
plaintiff
alleged
deprivation,
If
has
such a
a
historical
immunity
facts relevant to the
anal-
"proceed
court should thereafter
to determine
Wilson,
ysis.”
Following
Id. at 278.
the Dis-
right
clearly
whether that
was
established at
trict Court should have first decided whether
alleged
the time of the
violation.” Id. Al-
Phillips
alleged
deprivation
has
of a con-
though
important
qualified
it
to resolve
has, then,
right.
stitutional
If he
the Court
immunity questions
possible
at the earliest
right
should have determined whether that
stages
litigation,
importance
of
of resolv-
clearly
was
established at the time the individ-
ing qualified immunity questions early "is in
allegedly
ual
right.
defendants
violated that
reality
disputes
tension with the
that factual
differently from other simi-
Phillips
Mark
Moreover,
Phillips
specifi-
tion.
larly
persons.
threat-
situated
in Michalski’s
cally contemplated
paragraph
Complaint
violence.
ened
Olech,
wa
municipality
In
a
conditioned
Therefore,
Phillips
adequately
has
plaintiff-
for a
on the
property
ter service
between
relationship
a
there was
easement,
granting a 33-foot
even
owner’s
purposes
for
and the state
plaintiff
only a
easement
though
required
15-foot
theory.
danger
state-created
every
owner.
Id. at
property
from
other
Supreme
1073. The
S.Ct.
E.
on the
proceed
allowed the
sum,
erred in dis-
District Court
theory,
recognizing claims
class-of-one
claims
missing the state-created
has
“plaintiff alleges
that she
been
where
Craig. Al-
Tush and
defendants
against
differently from oth
intentionally treated
of
in the dismissal
find no error
though we
and that there is no
similarly
ers
situated
against de-
danger claims
the state-created
for the difference in treat
rational basis
Nussbaum,
and
Ging, Zurcher
fendants
The
ment.” Id. at
Second Circuit reversed a district court’s
determination that DeMuria had failed to Although DeMuria does relax adequately plead equal a “class of one” pleading the “class of one” requirements protection violation. DeMuria involved a by negating specificity, the need for an neighbor-to-neighbor dispute concerning allegation equal protection of an violation water run-off. plaintiffs The had made a still must contain a claim that a “general” “relatively allegation bare” has differently been treated from others gave the defendant officer police them similarly who are situated. The District police protection different standard of Court here complaint dismissed the be typically than that afforded a resident [of cause it determined that Phillips had not facts that town] the officer alleged that the defendants treated the was in duty violation of his as an officer. differently decedent from similarly others DeMuria, 328 707. The District Phillips’ situated. complaint does raise allegation Court found the police very general example, accusations. For officer had treated the DeMurias different- alleges against Count One claims Alleghe ly from other insufficiently citizens to be ny County and the Allegheny County 911 specific purpose for the of maintaining an One, In Paragraph Services. 45 Count equal protection claim because the DeMu- Phillips alleges that “the actions of the any similarly rias did not name situated defendant were intentional consti and/or or identify any differently-han- individuals disregard, gross tuted willful recklessness disputes. dled and deliberate indifference for Phillips’ personal safety, well-being and right The Appeals Court of reversed in derogation life of the Due Process and and held that Supreme holding Court’s Equal Protection clauses of the Four does requirement Olech not establish a teenth Amendment.” Count Two of the that a identify in a actu complaint alleges against claims the indi al instances where others have been treat Nussbaum, Tush, vidual defendants differently ed purposes equal protec Deutsch, Craig, Ging, Zurcher and tion. Id. at Ces Supreme 707. The Court tra. In Paragraph pointed “[i]ndeed, out that al appears leges that “the Olech herself actions of the did not ‘name names’ in defendants her were intentional complaint, but constituted general made the more willful alle and/or gation disregard, gross similarly property situated recklessness deliber owners had ate Phillips’ personal been asked for a indifference for different safety, easement.” Id. Supreme well-being right deter to life der mined that such allegation ogation an could “fairly Due Process Clause and be allegation Equal construed” as a sufficient Protection clauses of the Four stating equal protection claim. Id. teenth Amendment of the United States Olech, quoting U.S. 120 S.Ct. Constitution.” *20 Phillips’ rights the in a violation of specifically sulted these counts Clearly, both Protection Clause of the Equal under Protection Clause. Equal to the refer e.g. Amendment. See Com- Fourteenth Furthermore, spe- 50 and 58 Paragraphs Paragraphs Again, 54. how- plaint conduct that the defendants’ cifically allege ever, that allegation there is no in right to life of his deprived differently. treated Equal Protection Clause. of the violation and the in- But, accusations general these a in opposition to motion dismiss Clause Equal Protection of the vocation Court, again and before this the District enough. are not that appeal, Phillips argues on her that, per- alleges although other complaint does not decision note that Olech We personal had infor- similarly sons situated plaintiff that requirement establish legitimate 911 only mation accessed specific instances identify complaint in the discrimi- Phillips] was purposes, [Mark differently treated have been where others defendants against by the individual nated protection. equal purposes for the See they personal accessed his informa- in that Indeed, in DeMuria, F.3d at attempt in his tion to assist Michalski complaint in of the reversing the dismissal agree kill him. eventually track and We DeMuria, indicated Appeals the Court the District Court’s determination in that case plaintiffs that while that, no such complaint, the face of the in evi finding hurdle significant “face[d] less made. Even under the allegation was allegations of selective their prove dence to standards set forth stringent pleading treatment, such unequal and enforcement DeMuria, Phillips’ class-of-one Olech their claim at not defeat concerns should inadequately claim is equal protection however, Here, stage.” Id. pleading Nonetheless, this dismissal pleaded. specific contain does not Phillips’ complaint hence, error. premature and stage was differently. treated that he was (Para Complaint facts section The above, if a com indicated As we 17-42) ac egregious reveals graphs subject to a Rule dismiss is plaint at the 911 com individuals tions of various al, permit a curative court must a district are center —actions puter amendment unless such an amendment However, Phillips’ death. have led to or futile. Alston v. inequitable would be these actions allegation no there is Cir.2004). (3d Parker, 229, 235 differently being treated in him resulted Moreover, that a dis have instructed we whose other individuals—individuals from plaintiff with provide trict court 911 data information personal plaintiff if does even opportunity Complaint, 26 of the Paragraph base. Accordingly, to amend. Id. not seek leave “Defendants Tush indicates that example, does not seek leave plaintiff even when knowing Michalski Craig assisted after a defendant his amend personal unauthorized accessing they were it, district unless the to dismiss moves absolutely rela no information ineq be that amendment would court finds dispatchers functions as tionship to their futile, must inform the court uitable or call center.” emergency a 911 [sic] leave to amend that he or she has plaintiff does not aver allegation, however This of time. period within a set differently. treated Phillips was A district F.3d at 108. Grayson, 293 See if the Two, the action may dismiss court in Counts One Complaint, pleading amended does not submit reference to the specific contain does time, files if the actions, re- within which intentional Defendants’ *21 notice with the district court of intent Although his we conclude that the District Shane, complaint. to stand on the analysis Phillips’ See 213 Court did not err in its (citation omitted). claim, at 116 equal protection we will remand this well, claim as again instructing once opin The District Court’s memorandum provide Phillips District Court to an oppor- ion indicates that it dismissed Phillips’ Sec tunity complaint. to amend her prejudice tion 1983 with claims after re ceiving parties’ briefs on the motion to ROTH, Judge, Circuit Concurring: dismiss. There is no indication that the I concur in opinion majority. of the Phillips District Court informed that she I separately write a potential to note issue complaint. would have leave to amend her by that could be created application broad Moreover, opinion the memorandum con “class one doctrine.” tained neither a a finding that curative futile, inequitable amendment would be In the context of a substantive due finding nor a that Phillips had failed to file claim, process Supreme Court has es- timely amended pleading or had filed tablished that to recover a notice of her intention stand on the establish that govern- the behavior of the complaint. There is no indication that ment “shocks the conscience” of a reason- Phillips wishes stand on the County able observer. Sacramento v. purposes Indeed, appeal. this Phil Lewis, 833, 523 U.S. 118 S.Ct. that, lips argues in the event we determine (1998). is, L.Ed.2d 1043 That the gov- claim, she has failed to state we remand just ernment’s behavior must be not arbi- the matter to the District in Court with trary capricious, shocking. but to permit structions amendment. See Ba contrast, proceeding under Co., v. State Farm Ins. toff an equal protection theory “class of one” (3d Cir.1992). 851 n. 5 may if recover she can establish that she intentionally has been treated differently
V. similarly from others situated and that there is no rational basis for the difference pleading Standards of are not the same in treatment. Village Willowbrook v. proof. as standards of express We no Olech, 528 U.S. 120 S.Ct. opinion on whether Phillips ultimately will (2000). L.Ed.2d 1060 proceeding prove be able to her At plead- case. theory. here on such a however, ing stage, the District Court Hence, respects. erred several we will A reading broad of Olech could allow reverse the District Court’s any plaintiff dismissal of insufficiently shocking Tush, Nussbaum, Craig and and will re- process due claim to resurrect her consti- mand with instructions to the by District tutional claim repleading her case as permit Court an opportunity to representing a “class of one” victimized amend her state-created particular claims government action at issue.8 against Nussbaum. We will affirm I do not Supreme believe that the Court District Court’s dismissal of the remaining intended Olech to undermine Lewis in this defendants. fashion, and I would urge the District itself, conscience, 8. On the representa- facts of Lewis shock the the officer did treat that motorcycle tives of the passenger particular deceased motorcyclist differently than other argue could that while the similarly officer’s actions in motorcyclists situated and that there beginning high speed pursuit might not was no rational basis for such a decision. of this issue as mindful to be in this case. proceedings further conducts *22 RESOURCES, COAL
CUMBERLAND Petitioner,
LP, AND MINE SAFETY
FEDERAL COMMISSION;
HEALTH REVIEW Safety
Secretary Labor, Mine Administration, (MSHA), Re-
Health
spondent.
No. 06-4192. Appeals, States Court
United
Third Circuit.
Argued Nov. 2007.
Filed Feb. notes of (3d Cir.2004). Phillips’ Passaic, 181, elements of required F.3d 194 suggest 365 Here, claims. dismissed Phil- the District Court a Rule mo- lips’ complaint under III. tion, upon adequately based her failure to 1983, first, second and fourth elements plead Under Section a constitutional deprivation the harm was foresee- plead of the test —that depriva able, and that the constitutional actor’s behavior right state under by person acting conscience,” tion was caused that the de- “shocked the and Tedder, v. Kneipp law. the color of state fendant’s conduct rendered Mark Cir.1996). (3d 1199, 1204 95 F.3d danger. Bright, to See 443 more vulnerable right her deprivation Passaic, son’s alleges 281; City Rivas v. 365 F.3d life, bodily integrity Cir.2004). under liberty (3d and 181, Because the 194 to the Constitu Fourteenth Amendment analysis of sev- District Court erred its a constitutional lib Individuals have tion. elements, in turn. eral we will discuss each bodily integrity personal erty interest the Due Process protected by is A. Amendment. the Fourteenth Clause of element, begin with the fourth We Bucks Area Vocational D.R. v. Middle act, of an affirmative be requirement (3d School, 1368 Technical obviates the need to cause our conclusion Cir.1992) Wright, v. 430 (citing Ingraham elements with re analyze the other three 672-74, 51 L.Ed.2d 97 S.Ct. U.S. against claim Nussbaum. spect to the (1977)). 711 authority to actors must use their State However, the Due Process opportunity create an otherwise would an affirmative obli impose Clause does not third-party’s crime not have existed for the citizens. gation protect on the state to its Kneipp, 95 F.3d to occur. Dept. Winnebago County DeShaney See under the fourth we stressed that Bright, Servs., 189, 195-96, 109 489 U.S. Soc. claim, danger a state-created element of (1989). The L.Ed.2d 249 S.Ct. predicated upon ... [liability an danger theory operates as state-created acts which work states’ affirmative requires general to that rule and exception in terms of ex- detriment plaintiffs (1) test: plaintiffs four-part to meet a It is the misuse danger. posure to the ultimately harm caused rather than a authority, state failure (2) direct; fairly the state- foreseeable it, Due Process that can violate the use disregard for the actor acted in willful Clause. (3) rela safety; there was some plaintiffs added) (quoting (emphasis F.3d at 282 plain state and the tionship between the 1374). LR., The line (4) F.2d at tiff; au D.R. used his the state-actor may not al- action and inaction between opportunity thority to create Nussbaum, County, accepting this alle- Allegheny party whether 4. Neither addresses true, Craig them as state- gation are indeed state-actors. we will treat Tush and alleges were appeal. that these defendants purposes of this actors Corporation employees of the Northwest both