Breen v. Texas A&M University , 485 F.3d 325 ( 2007 )

United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
FILED
April 24, 2007
Charles R. Fulbruge III
No. 04-40712
Clerk
SEAN BREEN, as Administrator of the Estate of Christopher
Breen; CHRISTOPHER BREEN; JOHN E. BREEN; MARIAN K. BREEN,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his individual
capacity; RAY BOWEN,
Defendants-Appellees.
Consolidated with
No. 04-40713
JAMES KIMMEL, as representative of the Estate of Lucas
Kimmel (deceased); JAMES KIMMEL; WALIETA KIMMEL,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL J. THOMPSON, in his official
capacity; RAY BOWEN, in his individual capacity; WILLIAM L.
KIBLER, in his individual capacity; JOHN J. KOLDUS, III, in
his individual capacity,
Defendants-Appellees.
Consolidated with
04-40714
BILL DAVIS,
Plaintiff-Appellant,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his individual
capacity; RAY BOWEN, in his individual capacity; WILLIAM L.
KIBLER, in his individual capacity; JOHN J. KOLDUS, III, in
his individual capacity,
Defendants-Appellees.
Consolidated with
04-40715
HOWARD SCANLAN; DENISE SCANLAN; LAUREN N. T. SCANLAN,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his individual
capacity; RAY BOWEN, in his individual capacity; WILLIAM L.
KIBLER, in his individual capacity; JOHN J. KOLDUS, II, in
his individual capacity,
Defendants-Appellees.
Consolidated with
04-40780
JOHN ANDREW COMSTOCK; DIXIE ANN ZINNEKER,
Plaintiffs-Appellants,
VERSUS
TEXAS A&M UNIVERSITY; ET AL.,
Defendants,
TEXAS A&M UNIVERSITY; J. MALON SOUTHERLAND, in his
individual capacity; RUSSELL THOMPSON, in his individual
capacity; RAY BOWEN; WILLIAM L. KIBLER, in his individual
capacity; JOHN J. KOLDUS, III, in his individual capacity,
Defendants-Appellees.
Consolidated with
04-40812
JAQUELYNN KAY SELF, Individually and as Administratrix of
the estate of Jerry Don Self, Deceased; KATHY MCCLAIN
ESCAMILLA, Individually and as Administratrix of the Estate
of Bryan A. McClain, Deceased; PHILLIP MCCLAIN, ANDREA
HEARD, Individually and as Administratrix of the Estate of
Christopher Lee Heard, Deceased; LESLIE G. HEARD; GREGORY
ANTHONY POWELL, Individually and as Administrator of the
Estate of Chad A. Powell, Deceased; BEVERLY JILL POWELL;
MATTHEW LYNN ROBBINS; DOMINIC M. V. BRAUS; NANCY BRAUS,
Plaintiffs-Appellants,
VERSUS
RAY M. BOWEN; J. MALON SOUTHERLAND; WILLIAM KIBLER; RUSSELL
W. THOMPSON; JOHN J. KOLDUS, III; M. T. HOPGOOD, JR., Major
General; DONALD J. JOHNSON; ZACK COAPLAND; KEVIN JACKSON;
JAMES R. REYNOLDS; ROBERT HARRY STITELER, JR.; MICHAEL DAVID
KRENZ,
Defendants-Appellees.
Appeals from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
These consolidated appeals arise out of the violent
collapse of the Texas A&M University bonfire stack on November
18, 1999, which killed 12 students and injured 27 others. In
1
these appeals, plaintiffs seek to overturn the district court’s
grant of summary judgment under Federal Rule of Civil Procedure
56 dismissing their 42 U.S.C. § 1983 claims against University
officials for damages resulting from that tragic event. In
previous appeals, a panel of this court, in Scanlan v. Texas
A&M University, 343 F.3d 533 (5th Cir. 2003), reversed the
district court’s dismissal of those claims under Rule 12(b)(6).
Upon remand after that decision, the district court granted
summary judgment in favor of defendants, holding that the
University officials were entitled to qualified immunity from
suit. See Breen v. Southerland, No. 3:01-CV-00670, slip op.
(S.D. Tex. May 21, 2004). This second group of appeals
followed.
I. Procedural Background
In the wake of the 1999 Texas A&M bonfire collapse, the
plaintiffs, including the estates of deceased victims, injured
survivors, and relatives of affected students, filed suits
against Texas A&M University and certain University officials
in the United States District Court for the Southern District
of Texas.1 Plaintiffs asserted, inter alia, that the University
1
The defendants in the cases on appeal before us are Dr. Ray
Bowen, Dr. Zack Coapland, Major General Marvin Hopgood, Jr., Dr.
Kevin Jackson, Brigadier General Donald Johnson, Dr. William
2
and its officials were liable to plaintiffs under 42 U.S.C. §
1983 for violating the students’ substantive due process rights
to bodily integrity. Plaintiffs’ section 1983 claims were
predicated on a state-created danger theory—i.e., that the
University and its officials created a dangerous environment
for students and were deliberately indifferent to their safety
by encouraging the unqualified and inexperienced students to
build the enormous bonfire stack without adequate supervision
by University personnel. Plaintiffs also asserted several
state law causes of action against the various defendants.
Defendants moved to dismiss plaintiffs’ actions for
failure to state a claim, and, in the alternative, for summary
judgment. For reasons assigned in an opinion dated July 23,
2002, the district court granted the defendants’ motions to
dismiss and dismissed plaintiffs’ complaints in their entirety.
See Kimmel v. Texas A&M Univ., 267 F. Supp. 2d 646 (S.D. Tex.
2002). First, the district court held that plaintiffs’ claims
against Texas A&M University were suits against the state and
were therefore barred by sovereign immunity. Id. at 653-54.
No appeal was taken from that holding. Second, as to
Kibler, Dr. John Koldus, III, Michael Krenz, James Reynolds, Dr. J.
Malon Southerland, Robert Stiteler, Jr., and Russell Thompson.
3
plaintiffs’ section 1983 claims against the University
officials, the district court held that plaintiffs failed to
state a cognizable substantive due process claim because
plaintiffs’ allegations were insufficient to establish that the
officials acted with deliberate indifference. Id. at 656-58.
In analyzing the sufficiency of plaintiffs’ section 1983
claims, the district court considered not only the allegations
of plaintiffs’ complaints, but also the findings of the Final
Report of the Special Commission on the 1999 Texas A&M
Bonfire,2 although that document was not incorporated by or
otherwise made part of plaintiffs’ complaints. Kimmel, 267 F.
Supp. 2d at 654. Finally, the district court declined to
exercise supplemental jurisdiction over plaintiffs’ state law
claims and dismissed them without prejudice. Id. at 658-59.
Upon plaintiffs’ first appeal in this case, a panel of
this court reversed the district court’s Rule 12(b)(6)
dismissal of plaintiffs’ section 1983 claims against the
University officials. Scanlan, 343 F.3d at 537-39. The court
first held that the district court erred by considering, for
2
The Final Report documented the findings of a special
commission convened by the president of the University to
investigate the collapse of the bonfire stack. See Scanlan, 343
F.3d at 535.
4
purposes of the defendants’ Rule 12(b)(6) motions to dismiss,
the facts stated in the Final Report.3 The Scanlan court then
considered whether the plaintiffs’ allegations were sufficient
to state a claim under 42 U.S.C. § 1983. The court noted that,
although this circuit had never adopted the state-created
danger theory, it had previously recognized that a plaintiff
seeking to recover under such a theory must show that (1) “the
defendants used their authority to create a dangerous
environment for the plaintiff;” and (2) “the defendants acted
with deliberate indifference to the plight of the plaintiff.”
Id. at 537-38. The court found that, construing the
allegations in the light most favorable to the plaintiffs, the
complaints stated a cause of action under the state-created
danger theory because they averred that: (1) the bonfire
construction environment was dangerous; (2) the University
officials knew that it was dangerous and would create an
opportunity for the resulting harm to occur; and (3) the
officials were deliberately indifferent to the students’ safety
3
The court held that the district court erred in considering
the facts stated in the Final Report because the Final Report was
not attached to the defendants’ motions to dismiss, the plaintiffs
objected to its being considered, it was not central to plaintiffs’
claims, and the plaintiffs relied on other evidence in support of
their claims. Scanlan, 343 F.3d at 536-37.
5
because they delegated the construction of the bonfire stack
to students, whom they knew were not qualified to handle such
a dangerous project, failed to provide adequate supervision,
and ignored the danger that the stack posed to the students
working on it. Id. at 538. Accordingly, the Scanlan court
reversed the district court’s judgment dismissing the
plaintiffs’ section 1983 claims and remanded the case to the
district court for further proceedings.
On remand, the University officials renewed their motions
for summary judgment. The district court granted the motions
on the ground that the officials were entitled to qualified
immunity from suit. See Breen, No. 3:01-cv-00670, slip op. at
3-11. The district court found that, although the summary
judgment record contained material factual disputes concerning
both whether defendants’ conduct created or increased the
danger to the students involved in construction of the bonfire
stack and whether defendants acted with deliberate
indifference, the defendants were nevertheless entitled to
qualified immunity because their conduct was not objectively
unreasonable in light of clearly established Fifth Circuit law
at the time of their actions. Id., slip op. at 6-11.
6
II. Standard of Review
Summary judgment is proper where there is no genuine issue
of material fact and the moving party is entitled to judgment
as a matter of law. Fed. R. Civ. P. 56(c). This court reviews
a grant of summary judgment de novo, applying the same
standards as those applicable in the district court. Baton
Rouge Oil & Chem. Workers Union v. Exxon Mobil Corp., 289 F.3d
373, 376 (5th Cir. 2002). Ordinarily, on summary judgment, the
moving party has the initial burden of establishing that there
are no issues of material fact and that it is entitled to
judgment in its favor as a matter of law. See Rivera v.
Houston Indep. Sch. Dist., 349 F.3d 244, 246-47 (5th Cir.
2003). If the moving party meets this burden, the burden then
shifts to the non-moving party to point to evidence showing
that an issue of material fact exists. Id. at 247. When a
defendant invokes qualified immunity, however, the burden
shifts to the plaintiff to rebut the applicability of the
defense. See McClendon v. City of Columbia, 305 F.3d 314, 323
(5th Cir. 2002) (en banc) (citing Bazan ex rel. Bazan v.
Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)). In
determining whether summary judgment is appropriate, we view
all of the evidence in the light most favorable to the non-
7
moving party and draw all reasonable inferences in its favor.
See Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 515-
16 (5th Cir. 2005).
III. Section 1983 and Qualified Immunity
Section 1983 provides a private right of action for
damages to individuals who are deprived of “any rights,
privileges, or immunities” protected by the Constitution or
federal law by any person acting under the color of state law.
42 U.S.C. § 1983. Notwithstanding section 1983’s broad
language, state officials performing discretionary functions
are often protected from liability by the doctrine of qualified
immunity, which shields such officials from suit “‘insofar as
their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.’” McClendon, 305 F.3d at 322 (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether
an official is entitled to qualified immunity from a suit
alleging a constitutional violation, we conduct a familiar two-
step inquiry. First, we must ask whether the plaintiff has
alleged facts to establish that the official violated the
plaintiff’s constitutional rights. Hope v. Pelzer, 536 U.S.
730, 736 (2002) (“The threshold inquiry a court must undertake
8
in a qualified immunity analysis is whether plaintiff’s
allegations, if true, establish a constitutional violation.”);
Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required
to rule upon the qualified immunity issue must consider, then,
this threshold question: Taken in the light most favorable to
the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?”). Whether
the facts establish a violation of a constitutional right is
determined with reference to current law. See Atteberry v.
Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir. 2005);
McClendon, 305 F.3d at 323. If the facts do not establish that
the defendant violated the plaintiff’s constitutional rights,
we need not inquire further. See Saucier, 533 U.S. at 201.
If they do, the defendant is still entitled to qualified
immunity unless the court finds that the defendant’s conduct
was objectively unreasonable in light of clearly established
law at the time of the state actions at issue. See McClendon,
305 F.3d at 323.
A. Violation of a Constitutional Right
Plaintiffs here assert that defendants violated the
students’ rights to bodily integrity under the substantive
component of the Fourteenth Amendment’s Due Process Clause by
9
creating or exacerbating the dangerous situation that
ultimately injured the students. Specifically, plaintiffs
assert that defendants knew that building the bonfire stack,
a recognized and sanctioned University activity, was a
dangerous activity and that the student leaders were not
qualified to design and supervise its construction. Plaintiffs
allege that, notwithstanding that knowledge, defendants
deliberately delegated the design and construction process to
the students and deliberately decided not to provide the
students with or require that they have adequate supervision.
Plaintiffs argue that defendants’ actions give rise to a
cognizable substantive due process claim under the state-
created danger theory.
1. Substantive Due Process and State-Created Danger
The Due Process Clause of the Fourteenth Amendment
provides that “[n]o State shall . . . deprive any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Supreme Court has long recognized
that the Due Process Clause is more than a guarantee of
procedural fairness and “cover[s] a substantive sphere as well,
‘barring certain government actions regardless of the fairness
of the procedures used to implement them.’” County of
10
Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels
v. Williams, 474 U.S. 327, 331 (1986)). The reach of
substantive due process is limited, however, and it protects
against only the most serious of governmental wrongs. The
Court has emphasized that “because guideposts for responsible
decisionmaking in this uncharted area are scarce and open-
ended,” courts should be “reluctant to expand the concept of
substantive due process.” Collins v. City of Harker Heights,
503 U.S. 115, 125 (1992).
When a plaintiff complains of abusive executive action,
substantive due process is violated “only when [the conduct]
‘can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense.’” Lewis, 523 U.S. at 847
(quoting Collins, 503 U.S. at 128). Though the meaning of the
term “conscience shocking” is necessarily indeterminate, the
Lewis court provided some guidance for lower courts to follow.
Negligent acts, for example, are insufficient to trigger a
substantive due process violation. Id. at 849 (“[L]iability
for negligently inflicted harm is categorically beneath the
threshold of constitutional due process.”). Conversely,
conduct intended to cause injury is, of course, most likely to
violate due process. Id. For conduct within the “middle
11
range” of “something more than negligence but ‘less than
intentional conduct, such as recklessness or ‘gross
negligence,’’” the inquiry is more difficult and requires a
searching inquiry into the facts and circumstances of the
particular case in light of the right asserted. Id. at 849-50
(quoting Daniels, 474 U.S. at 331); see also id. at 850
(“Deliberate indifference that shocks in one environment may
not be so patently egregious in another.”).
While it is clear that individuals have a substantive due
process right to be free from state-occasioned bodily harm, it
is equally clear that the Constitution does not, as a general
matter, impose upon state officials a duty of care to protect
individuals from any and all private harms. DeShaney v.
Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196-97
(1989) (“As a general matter, then, we conclude that a State’s
failure to protect an individual against private violence
simply does not constitute a violation of the Due Process
Clause.”). The DeShaney court recognized two possible
exceptions to this general rule, however. First, the Court
stated that the Constitution imposes upon the state a duty of
care towards individuals who are in the custody of the state.
Id. at 200 (“[W]hen the State takes a person into its custody
12
and holds him there against his will, the Constitution imposes
upon it a corresponding duty to assume some responsibility for
his safety and well-being.”). Second, some language from
DeShaney has been read to suggest that state officials also
have a duty to protect individuals from harm when their actions
created or exacerbated a danger to the individual. See id. at
201 (noting that, although the state may have been aware of the
dangers faced by the plaintiff, “it played no part in their
creation, nor did it do anything to render him more vulnerable
to them”).
This latter exception mentioned in DeShaney is often
recognized as the primary source4 for what has been termed the
state-created danger theory. A number of courts, including the
majority of the federal circuits, have adopted the state-
created danger theory of section 1983 liability in one form or
another.5 Prior to the Scanlan decision in the present group
4
But cf. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061
n.1 (9th Cir. 2006) (asserting that “the ‘state-created danger’
doctrine predates DeShaney” and that DeShaney is “more reasonably
understood as an acknowledgment and preservation of the doctrine,
rather than its source”).
5
See, e.g., Butera v. District of Columbia, 235 F.3d 637, 651
(D.C. Cir. 2001) (holding that “under the State endangerment
concept, an individual can assert a substantive due process right
to protection by the District of Columbia from third-party violence
when . . . officials affirmatively act to increase or create the
danger that ultimately results in the individual’s harm”);
13
of cases, this court had often expressed reluctance to embrace
the state-created danger theory, while noting its adoption by
other courts. Although this court discussed the theory in no
Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.
1998) (recognizing state-created danger claim where officials
released personal information about undercover officers to the
suspects whom the officers were investigating); Kneipp v. Tedder,
95 F.3d 1199, 1211 (3d Cir. 1996) (“[W]e hold that the
state-created danger theory is a viable mechanism for establishing
a constitutional claim under 42 U.S.C. § 1983.”); Uhlrig v. Harder,
64 F.3d 567, 572 (10th Cir. 1995) (stating that “danger creation”
theory is a recognized exception to DeShaney rule); Reed v.
Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993) (holding that
“officers may be subject to suit under section 1983 if they
knowingly and affirmatively create a dangerous situation for the
public and fail to take reasonable preventative steps to diffuse
that danger”); Dwares v. City of New York, 985 F.2d 94, 98-99 (2d
Cir. 1993) (recognizing state-created danger claim where police
officers allegedly conspired with group of “skinheads” to permit
them to assault demonstrators); Freeman v. Ferguson, 911 F.2d 52,
54-55 (8th Cir. 1990) (recognizing state-created danger claim where
police chief allegedly directed officers to ignore victim’s pleas
for assistance); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.
1989) (recognizing state-created danger claim where police officers
impounded vehicle, arrested driver, and left passenger stranded on
roadside in high crime area).
The First and Fourth Circuits have discussed the state-created
danger theory, but those courts have neither accepted nor rejected
it as a theory of recovery. See Velez-Dias v. Vega-Irizarry, 421
F.3d 71, 80 (1st Cir. 2005) (“‘This court has, to date, discussed
the state created danger theory, but never found it actionable on
the facts alleged.’”) (quoting Rivera v. Rhode Island, 402 F.3d 27,
35 (1st Cir. 2005)); Pinder v. Johnson, 54 F.3d 1169, 1175-76 (4th
Cir. 1995) (en banc). The Eleventh Circuit at one point recognized
the state-created danger theory, see Cornelius v. Town of Highland
Lake, 880 F.2d 348, 354-55 (11th Cir. 1989), but it appears to have
since repudiated the doctrine. See White v. Lemacks, 183 F.3d
1253, 1259 (11th Cir. 1999) (“[T]he ‘special relationship’ and
‘special danger’ doctrines applied in our decision in Cornelius are
no longer good law, having been superseded by the standard employed
by the Supreme Court in Collins.”).
14
fewer than 11 published decisions prior to Scanlan,6 it had not
formally approved of the theory or applied it to uphold a
plaintiff’s complaint against pretrial motions or affirm an
award of damages. See, e.g., Morin, 309 F.3d at 321 (noting
that Fifth Circuit had “neither adopted nor rejected the state
created danger theory”); McKinney, 309 F.3d at 313 (same).
This court had, however, recognized and described the essential
elements of such a claim for the purpose of demonstrating that
the plaintiffs’ complaints in particular cases failed to state
claims under the theory. In doing so, this court explained
that to recover on a state-created danger claim, the plaintiff
must show that the harm to the plaintiff resulted because (1)
the defendant’s actions created or increased the danger to the
plaintiff; and (2) the defendant acted with deliberate
indifference toward the plaintiff. See, e.g., Morin, 309 F.3d
at 321-22; McKinney, 309 F.3d at 313. This court had also
6
See Morin v. Moore, 309 F.3d 316, 321-24 (5th Cir. 2002);
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 313-14 (5th
Cir. 2002); McClendon, 305 F.3d at 324-26; Piotrowski v. City of
Houston, 237 F.3d 567, 583-85 (5th Cir. 2001) (“Piotrowski II”);
Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 391-92 (5th Cir.
1999); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997);
Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.
1997) (en banc); Piotrowski v. City of Houston, 51 F.3d 512, 517
(5th Cir. 1995) (“Piotrowski I”); Johnson v. Dallas Indep. Sch.
Dist., 38 F.3d 198, 200-02 (5th Cir. 1994); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 530-32 (5th Cir. 1994); Salas v.
Carpenter, 980 F.2d 299, 309-10 (5th Cir. 1992).
15
stated that the state-created danger theory requires an
identifiable victim. See Morin, 309 F.3d at 322-23; Saenz, 183
F.3d at 392.
2. Scanlan’s Recognition of the State-Created Danger Theory
In most of the cases in which panels of this court had
discussed the state-created danger theory, the panel, in
effect, pretermitted whether to embrace or reject the theory,
but held simply that the facts of the particular case were
insufficient to state a claim under such a theory because the
plaintiff did not adequately allege that the defendants created
the danger,7 that the defendants acted with the requisite
culpability,8 that the plaintiff was an identifiable victim,9
or some combination thereof. In Scanlan, however, the panel
reversed the district court’s dismissal of plaintiffs’ section
1983 claims in the present group of cases on the ground that
plaintiffs had sufficiently alleged all of the elements of a
state-created danger claim. See Scanlan, 343 F.3d at 537-39.
Given that disposition, the question naturally arises
7
See Morin, 309 F.3d at 324; McKinney, 309 F.3d at 314;
Piotrowski II, 237 F.3d at 584-85; Johnson, 38 F.3d at 202; Salas,
980 F.2d at 309.
8
See McClendon, 305 F.3d at 326; Piotrowski II, 237 F.3d at
585; Johnson, 38 F.3d at 201-02; Leffall, 28 F.3d at 531.
9
See Morin, 309 F.3d at 322-23; Saenz, 183 F.3d at 391-92.
16
whether Scanlan constitutes recognition, approval, and adoption
for use by this court of the state-created danger theory.
Although the Scanlan opinion did not expressly announce that
it was adopting the state-created danger theory, it explicitly
recited the previously recognized essential elements of a
state-created danger claim, applied them to the pleadings, and
decided that the plaintiffs had stated a claim upon which
relief could be granted under the theory. See id. Unlike the
earlier cases discussed above, in which this court declined to
pass upon the validity of the state-created danger theory
because the plaintiff’s allegations did not establish the
necessary elements of such a claim, the Scanlan court
explicitly found that plaintiffs had alleged facts sufficient
to show both (1) that the defendants created or increased the
danger to the students; and (2) that the defendants acted with
deliberate indifference. See id. at 538 (“[T]he district court
should have determined [that] the plaintiffs had pleaded
sufficient factual allegations to show the bonfire construction
environment was dangerous, the University Officials knew it was
dangerous, and the University Officials used their authority
17
to create an opportunity for the resulting harm to occur.”).10
Thus, the Scanlan panel, unlike earlier panels of this
court, was squarely faced with complaints that sufficiently
alleged the elements of a state-created danger claim, and,
therefore, stated claims under that theory. Consequently, the
Scanlan court, by holding that the district court erred in
dismissing plaintiffs’ section 1983 claims, necessarily
recognized that the state-created danger theory is a valid
legal theory. Were that not the case, the Scanlan court would
have been required to affirm the district court’s dismissal of
plaintiffs’ complaints, notwithstanding the fact that they
sufficiently alleged the elements of a state-created danger
claim. Under Rule 12(b)(6), federal courts are required to
dismiss claims based upon invalid legal theories even though
they might otherwise be well-pleaded.11
10
The Scanlan opinion does not discuss the additional
requirement that the risk of harm be to an identifiable victim,
probably because defendants did not argue that the affected
students were not identifiable victims. Defendants do not argue
that plaintiffs have failed to establish that requirement in these
appeals.
11
As the Supreme Court stated in Neitzke v. Williams, 490 U.S.
319 (1989), Rule 12(b)(6) requires dismissal whenever a plaintiff’s
claim is based on an invalid legal theory:
Nothing in Rule 12(b)(6) confines its sweep to
claims of law which are obviously
insupportable. On the contrary, if as a matter
18
Since the Scanlan decision, the panels in three
subsequent, unrelated cases have issued opinions that contained
statements suggesting that Scanlan did not adopt the state-
created danger theory. See Rios v. City of Del Rio, 444 F.3d
417, 422-23 (5th Cir. 2006) (suggesting that Scanlan did not
adopt state-created danger theory because “nowhere in the
opinion does the court expressly purport to approve that
theory”); Beltran v. City of El Paso, 367 F.3d 299, 307 (5th
Cir. 2004) (citing Scanlan for the proposition that “[t]his
court has consistently refused to recognize a ‘state-created
danger’ theory of § 1983 liability even where the question of
the theory’s viability has been squarely presented”); Rivera
v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 n.5 (5th Cir.
2003) (noting of Scanlan that “[d]espite remanding that case
to the district court for further proceedings, we did not
recognize the state created danger theory”). In each of
those cases, however, as in so many of this court’s other
of law “it is clear that no relief could be
granted under any set of facts that could be
proved consistent with the allegations,” . . .
a claim must be dismissed, without regard to
whether it is based on an outlandish legal
theory or on a close but ultimately unavailing
one.
Id. at 327 (internal citations omitted).
19
state-created danger cases, the court found that, assuming,
arguendo, the validity of the state-created danger theory, the
plaintiff’s allegations did not establish the elements of such
a claim. See Rios, 444 F.3d at 423-25; Beltran, 367 F.3d at
307-08; Rivera, 349 F.3d at 249-50. Thus, nothing in those
cases turned on whether the state-created danger theory is or
is not valid in this circuit. Accordingly, the statements in
those cases pertaining to Scanlan were unnecessary to their
holdings and, as such, constituted only non-binding dicta.12
The Scanlan panel’s clearly implied recognition of state-
created danger as a valid legal theory applicable to the case
is the law of the case with respect to these further appeals
in these same cases now before this panel. Under the law of
the case doctrine, the factual findings and legal conclusions
12
As Judge Posner noted, there are numerous and sometimes
inconsistent definitions of dictum, but as a practical matter, a
court can determine whether a particular passage in an earlier
opinion is dictum by considering factors such as whether “the
passage was unnecessary to the outcome of the earlier case and
therefore perhaps not as fully considered as it would have been
were it essential to the outcome,” or whether “the passage was not
an integral part of the earlier opinion, and so it was a redundant
part of that opinion and, again, may not have been fully
considered.” United States v. Crawley, 837 F.2d 291, 292 (7th Cir.
1988). Under either of these formulations, the statements from
Rios, Beltran, and Rivera suggesting that Scanlan does not
represent an acceptance of the state-created danger theory, which,
as noted above, were unnecessary to the outcome or analysis in
those cases, clearly qualify as dicta.
20
of a panel of this court continue to govern throughout that
case; we will not ordinarily revisit those findings or
conclusions on subsequent appeals. See Free v. Abbott Labs.,
Inc., 164 F.3d 270, 272 (5th Cir. 1999). The doctrine “applies
not only to issues decided explicitly, but also to everything
decided ‘by necessary implication.’” Office of Thrift
Supervision v. Felt (In re Felt), 255 F.3d 220, 225 (5th Cir.
2001) (citing Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.
1989)). Although the law of the case does not absolutely bind
later panels, we will generally apply it unless (1) the
evidence is materially different on the later appeal; (2) there
has been a change in controlling law on the applicable issues;
or (3) the initial decision was clearly erroneous and adhering
to it would result in manifest injustice. Free, 164 F.3d at
272.
Because the necessary implication of the Scanlan court’s
decision is that the state-created danger theory is, indeed,
a valid basis for a claim on the set of facts alleged in the
complaints in these cases, that clear implied holding is the
law of the case in the present group of appeals. Moreover, as
none of the exceptions to the law of the case doctrine even
arguably applies here, this panel cannot justifiably revisit
21
that conclusion.
3. Did the University Officials’ Conduct Violate the
Students’ Substantive Due Process Rights in this Case?
Because Scanlan established that plaintiffs have a
substantive due process right to be free from bodily injuries
caused by state-created dangers on the facts alleged in
plaintiffs’ complaints, we next must determine whether, viewing
the summary judgment evidence in the light most favorable to
plaintiffs, there is an issue of material fact as to whether
the defendants’ conduct violated that right. See Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 613 (5th Cir. 2004)
(“When reviewing a grant of summary judgment based on qualified
immunity, we must first determine whether a plaintiff
successfully alleged facts showing the violation of a
constitutional right by state officials, and whether there is
a genuine issue of material fact that the violation
occurred.”). The district court held that issues of fact
precluding summary judgment existed on both prongs of
plaintiffs’ state-created danger claims. As to the first
prong—that defendants created or increased the danger to the
plaintiffs—the district court found as follows:
Plaintiffs ultimately allege that the
University Officials increased the danger
22
to the victims by affirmatively delegating
technical and complex Bonfire
responsibilities to unqualified students
without adequate supervision or guidelines.
Defendants maintain that they “passively
continued the status quo” and merely
permitted students to do what they wanted.
The resolution of these polar viewpoints
requires examination of literally hundreds
of facts. It would be inappropriate and
virtually impossible for the Court to
decide as a matter of law and based on the
record now before the court whether the
state actors increased the danger to the
Bonfire victims.
Breen, No. 3:01-cv-00670, slip op. at 6-7. With respect to
deliberate indifference, the district court took its guidance
from Scanlan:
In its Opinion in this case, the Fifth
Circuit stated: “Whether deliberately
delegating the construction of the bonfire
stack to students the University Officials
allegedly knew were not qualified to handle
such a dangerous project, and whether
deliberately providing no supervision to
students building the bonfire even though
they knew the students were not qualified
to build the stack, constituted deliberate
indifference presents fundamental questions
of material fact.” Scanlan, 343 F.3d at
539. Though this statement was made in an
opinion disposing of Defendants’ Motion to
Dismiss, the summary judgment evidence
submitted since then has only muddied the
waters further. At this stage in the
proceedings, there remain multiple
questions of fact as to whether Defendants
acted with deliberate indifference.
23
Id., slip op. at 8.
We agree with the district court that Scanlan essentially
disposes of this first prong of the qualified immunity inquiry.
Scanlan quite clearly held that plaintiffs’ allegations, if
proven, would state a section 1983 claim under the state-
created danger theory. Scanlan, 343 F.3d at 539. The Scanlan
court also, however, went on to state that the conflicting
summary judgment evidence submitted by the parties in the
district court presented material fact issues concerning
plaintiffs’ state-created danger claims. See id. (“Had the
district court [converted the motion to dismiss into a motion
for summary judgment], the court would have been faced with the
questions of fact the evidence presents.”); id. (noting
existence of “fundamental questions of material fact”); id.
(“If all of the summary judgment evidence presents genuine
issues of material fact, those roles should be decided by a
trier of fact, not the defendants themselves.”). The Scanlan
court’s statements about the summary judgment evidence are
technically dicta and thus not the law of the case, but its
view of the summary judgment evidence in the record at the time
of its decision is nevertheless instructive. Although the
parties supplemented the summary judgment record with some
24
additional evidence on remand, as the district court noted, the
material factual disputes identified in Scanlan remain
concerning both whether defendants’ actions increased the
danger to the students and whether defendants acted with
deliberate indifference. We therefore conclude that plaintiffs
successfully alleged facts showing the violation of a
constitutional right by state officials under the state-created
danger theory, and that there is a genuine issue of material
fact that the violation occurred.
B. Clearly Established Law
Defendants in section 1983 cases are nevertheless entitled
to qualified immunity from a plaintiff’s claims unless their
conduct was objectively unreasonable in light of the clearly
established law at the time of their actions. McClendon, 305
F.3d at 323. The district court granted defendants’ motions
for summary judgment because it found that the state-created
danger theory was not clearly established law in the Fifth
Circuit as of November 18, 1999, the date on which the bonfire
stack collapsed.
Whether a right is clearly established depends, to a large
extent, on the level of generality at which the right in
question is defined. McClendon, 305 F.3d at 330-31. In the
25
qualified immunity context, a constitutional right is clearly
established only if, at the time of an official’s challenged
conduct, the contours of the right in question are
“‘sufficiently clear that a reasonable official would
understand that what he is doing violates that right.’” Hope,
536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S. 635,
640 (1987)). The essence of the clearly established law
requirement is that a defendant is entitled to “fair notice”
that his conduct violates the plaintiff’s constitutional
rights. See id. at 739-40. Thus, although the relevant right
must be defined with sufficient specificity to provide the
official with notice of the unlawfulness of his conduct, “the
term clearly established does not necessarily refer to
commanding precedent that is factually on all-fours with the
case at bar, or that holds the very action in question
unlawful.” Atteberry, 430 F.3d at 256-57 (internal citations
and quotation marks omitted).
In determining whether a right is clearly established, we
are not limited to precedent from the Supreme Court or this
court. As we have recognized, a right can become clearly
established either through cases that constitute binding
authority or on the basis of a consensus of persuasive cases
26
from other jurisdictions. See McClendon, 305 F.3d at 329 (“In
light of Wilson [v. Layne, 526 U.S. 603 (1999)], we must
consider both this court’s treatment of the state-created
danger theory and the status of this theory in our sister
circuits . . . .”).
The starting point for our consideration of whether the
state-created danger theory was clearly established in a
particularized sense relevant here on or before November 18,
1999, the date of the bonfire stack’s collapse, is our 2002 en
banc decision in McClendon, which considered a state-created
danger claim arising out of an injury that occurred in 1993.
In McClendon, this court concluded that the state-created
danger theory was not clearly established law in the Fifth
Circuit in 1993. The McClendon court first noted that this
court had only considered the state-created danger theory once
prior to 1993, in Salas v. Carpenter, 980 F.2d 299 (5th Cir.
1992), and that Salas “did not address the viability of the
state-created danger theory or define the contours of an
individual’s right to be free from state-created dangers.”
McClendon, 305 F.3d at 330. The court therefore found that
Salas was, on its own, “certainly insufficient” to provide a
defendant in 1993 with the requisite notice that his conduct
27
violated the plaintiff’s substantive due process rights. Id.
The McClendon court then proceeded to consider the
relevant authority from other circuits. The court observed
that “six circuits had sanctioned some version of the state-
created danger theory in July of 1993” and that no circuit had,
to that point, expressly rejected the theory. Id. Despite
this apparent consensus, this court found that “the mere fact
that a large number of courts had recognized the existence of
a right to be free from state-created danger in some
circumstances” was insufficient to make the theory clearly
established in the Fifth Circuit, in part because there was
little agreement among those courts as to the specific contours
of that right. Id. at 330-32 (“[W]hile a number of our sister
circuits had accepted some version of the state-created danger
theory as of July of 1993, given the inconsistencies and
uncertainties within this alleged consensus of authorities, an
officer acting within the jurisdiction of this court could not
possibly have assessed whether his or her conduct violated this
right in the absence of explicit guidance from this court or
the Supreme Court.”). The en banc court in McClendon also
found it significant that none of the cases from other circuits
applying the state-created danger theory had done so in a
28
factual context similar to that case. Id. at 332.
Applying the principles of McClendon to this case, we
conclude that the state-created danger theory was not clearly
established law in this circuit, with respect to the specific
facts here or otherwise, by November 18, 1999, and,
accordingly, the defendants are entitled to qualified immunity
from plaintiffs’ section 1983 claims. As was the case in 1993,
the relevant date in McClendon, neither the Supreme Court nor
this court had expressly recognized the validity of the state-
created danger theory as applied to any case prior to November
1999. Plaintiffs do not claim otherwise. Rather, they argue
that the state-created danger theory was clearly established
in the Fifth Circuit by November 1999 because (1) between 1993
and 1999, this court discussed the state-created danger theory,
and set out the necessary elements of the theory as it had been
recognized by other circuits, on numerous occasions; and (2)
the state-created danger theory was clearly established in
certain respects in the majority of the federal circuits by
November 1999.
In light of this court’s historical reticence towards
adopting the state-created danger theory, however, neither this
court’s discussions of the theory nor our sister circuits’
29
adoption of it convinces us that a reasonable official in any
of the defendants’ shoes would have had fair notice on or
before November 18, 1999 that his conduct with respect to the
danger created by the Texas A&M bonfire stack could violate the
students’ constitutional rights. Plaintiffs are correct that
a number of this court’s decisions prior to 1999 spelled out
the basic and essential elements that a plaintiff would need
to establish in order to state a claim under the state-created
danger theory, if it were to be adopted. See Randolph, 130
F.3d at 731; Doe, 113 F.3d at 1415; Piotrowski I, 51 F.3d at
515-16; Johnson, 38 F.3d at 201; Leffall, 28 F.3d at 530-31.
In each of those cases, however, this court also expressly
noted that the theory had never been adopted in this circuit.
See Randolph, 130 F.3d at 731; Doe, 113 F.3d at 1415;
Piotrowski I, 51 F.3d at 515; Johnson, 38 F.3d at 201; Leffall,
28 F.3d at 530. Because this court’s pre-November 1999
decisions evince substantial uncertainty as to the existence
of even the general right that the plaintiffs claim has been
violated, those decisions cannot be said to have given
defendants fair warning that any of their actions or omissions
with respect to the 1999 Texas A&M bonfire construction could
violate the affected students’ constitutional rights.
30
Moreover, similar to the situation in McClendon, any
consensus of the other federal circuits in adopting various
formulations of the state-created danger theory is insufficient
for this court to find that the theory was clearly established
in this circuit as applied to these cases. Although a majority
of federal circuits had approved of the state-created danger
theory in a general sense by November 18, 1999, there was not
a consensus among those courts as to the contours of the
underlying substantive due process right, see McClendon, 305
F.3d at 331, Butera, 235 F.3d at 653-54, and the plaintiffs
have not pointed to (and this court has not found) any pre-
collapse cases in which an appellate court applied the state-
created danger theory on facts even remotely analogous to the
facts of these cases. Accordingly, we find that the adoption
of the state-created danger theory in other circuits before
November 1999 was insufficient to give the University officials
fair notice that their conduct violated the students’
constitutional rights.13
13
Where this court has previously spoken on, and refrained from
deciding, an issue, a consensus of authority from other
jurisdictions would likely need to be particularly strong and clear
before it could support a finding that the legal principle in
question was clearly established law in this circuit. See
McClendon, 305 F.3d at 332 n.12.
31
We therefore conclude that the state-created danger theory
was not clearly established law in the Fifth Circuit on
November 18, 1999, and defendants are entitled to qualified
immunity.14
IV. Conclusion
For these reasons, we conclude that defendants are
entitled to qualified immunity from suit based on plaintiffs’
section 1983 claims, and we therefore AFFIRM the summary
judgment of the district court dismissing plaintiffs’
complaints.
AFFIRMED.
14
As our finding that the state-created danger theory was not
clearly established in this circuit at the time of the defendants’
conduct would be the same whether or not plaintiffs established
that defendants’ conduct violated their constitutional rights, one
might reasonably suggest that we could simply have proceeded
directly to the determinative second step of the qualified immunity
inquiry. The Supreme Court has made it clear, however, that courts
considering qualified immunity defenses ordinarily should address
the issue of clearly established law only if the plaintiff’s
allegations establish a constitutional violation. Lewis, 523 U.S.
at 841 n.5. The reason for this rule is, at least in part, because
“if the policy of avoidance were always followed in favor of ruling
on qualified immunity whenever there was no clearly settled
constitutional rule of primary conduct, standards of official
conduct would tend to remain uncertain, to the detriment of both
officials and individuals.” Id.
32