                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 17-3708



              MICHAEL S. HAMMON; AMY C. HAMMON,

                                                        Appellants

                                    v.


KENNETT TOWNSHIP; SCUDDER G. STEVENS; RICHARD L. LEFF; ROBERT A.
              HAMMAKER; ALBERT J. MCCARTHY




              On Appeal from the United States District Court
                 for the Eastern District of Pennsylvania
                   (District Court No.: 2:17-cv-01586)
               District Judge: Honorable Gene E.K. Pratter



               Submitted under Third Circuit L.A.R. 34.1(a)
                            on July 10, 2018


                     (Opinion filed: August 22, 2018)


       Before: SHWARTZ, NYGAARD, and RENDELL, Circuit Judges
                                      O P I N I O N*


RENDELL, Circuit Judge:

       Michael and Amy Hammon (the “Hammons”) appeal the District Court’s order

dismissing their 42 U.S.C. § 1983 complaint against Kennett Township, the township’s

board of supervisors, and Officer Albert McCarthy (“McCarthy”) alleging a substantive

due process violation based on theories of state-created danger and Monell liability, as

well as various state laws claims.1 We will affirm.

                                      I. Background

       McCarthy was chief of police of Kennett Township.2 In 2008, McCarthy hit his

head on a steel beam and suffered a brain injury that caused him to have a seizure within

24 hours. McCarthy notified the township and continued to work. More than three years

later, in October 2011, while driving a police cruiser on the job, McCarthy suffered an

absent seizure and rear-ended another car. McCarthy immediately stopped driving and

notified the township, the DMV, and the public. McCarthy worked with the township,

resulting in his taking medical leave and his drivers license being suspended. McCarthy

voluntarily submitted to neurological consults every three months after the initial

accident. McCarthy was permitted to return to active duty following his medical leave,

which included driving while on duty.


*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The Hammons do not appeal the District Court's dismissal of the state law claims.
2
  McCarthy is the sole police officer in Kennett Township and therefore the chief of
police.
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       Three years later, in April 2015, McCarthy had another seizure while driving on

duty resulting in his vehicle striking Mr. Hammon’s vehicle. Mr. Hammon sustained

injuries from the accident, and sued Officer McCarthy, the township, and members of the

township’s board of supervisors.

                                   II. Standard of Review

       We exercise plenary review over an order granting a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir.

2000). To survive a motion to dismiss, the plaintiff must plead “factual content that

allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). We accept as true all

well-pleaded allegations, but disregard legal conclusions and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Id. A complaint

must do more than allege a plaintiff’s entitlement to relief, it must “show” such an

entitlement with facts. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

                                        III. Analysis

                              A. State-Created Danger Claim

       To state a claim against an individual under § 1983, a plaintiff must show that the

defendant (1) was a person who (2) under the color of state law (3) caused a (4)

deprivation of constitutional rights. See City of Oklahoma City v. Tuttle, 471 U.S. 808,

816 (1985). The Hammons claim that the township, supervisors, and McCarthy violated

Mr. Hammon’s substantive due process rights based on the theory of state-created



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danger.3 We analyze the state-created danger claim using the four element test set forth in

Morrow v. Balaski, 719 F.3d 160, 177 (3d Cir. 2013). The four elements required for a

successful state-created danger claim are: (1) the harm ultimately caused was foreseeable

and fairly direct; (2) a state actor acted with a degree of culpability that shocks the

conscience; (3) a relationship between the state and the plaintiff existed such that the

plaintiff was a foreseeable victim of the defendant’s acts, or a member of a discrete class

of persons subjected to the potential harm brought about by the state’s actions, as

opposed to a member of the public in general; and (4) a state actor affirmatively used his

or her authority in a way that created a danger to the citizen or that rendered the citizen

more vulnerable to danger than had the state not acted at all. Id.

       The District Court properly concluded that the Hammons failed to aver facts to

support the second, third, and fourth elements of the state-created danger test. To

determine whether the conduct ‘shocks the conscience,’ the deliberate indifference

standard was applied. The elements of deliberate indifference are: (1) there is an

unreasonable risk of a deprivation of rights; (2) that the supervisor or municipality was

aware of the risk; (3) that they were indifferent to that risk; and (4) the failure to enact

policies regulating that risk caused the deprivation of rights in this instance. See Sample

v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). The District Court properly found that the

Hammons failed to allege deliberate indifference. The complaint did not plead that


3
 The Hammons also brought a substantive due process claim against McCarthy alone.
There would be no analytical distinction between the § 1983 claim against the township,
supervisors, and McCarthy, and the claim against McCarthy alone. Thus, no additional
analysis of the substantive due process claim against McCarthy alone is needed.
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McCarthy was barred from driving his vehicle when the 2015 accident occurred. Further,

following the 2011 accident, McCarthy immediately stopped driving and notified the

township, the DMV, and the public. McCarthy worked with the township, resulting in his

taking medical leave and his drivers license being suspended. McCarthy voluntarily

submitted to neurological consults every three months after the initial accident. Thus, the

actions of the township, the supervisors, and McCarthy fail to shock the conscience.

       The District Court properly determined that Mr. Hammon was not a foreseeable

victim. To be a foreseeable victim, a plaintiff must be “part of an identifiable and discrete

class of persons subject to the harm the state allegedly has created” and this element is

not satisfied “[w]here the state actor creates only a threat to the general population.”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 913-14 (3d Cir. 1997). The Hammons

argued that because Mr. Hammon was a resident and taxpayer of the township, he was a

member of a discrete class of drivers whom McCarthy would encounter while driving his

police vehicle. However, we have held that drivers on a particular road are not

identifiable. See Stover v. Camp, 181 F. App’x 305, 308 (3d Cir. 2006); Solum v.

Yerusalim, No. CIV. A. 98-4056, 1999 WL 395720 (E.D. Pa. June 17, 1999), aff’d 211

F.3d 1262 (3d Cir. 2000). The alleged risk that McCarthy could suffer a seizure was not

limited in scope and was directed toward the public in general. For these reasons, Mr.

Hammon was not a foreseeable victim.

       The District Court also properly applied the Morrow analysis in determining that

allowing McCarthy to resume his duties was not an affirmative act on the part of the

Appellees. “[M]erely restating the Defendants’ inaction as an affirmative failure to act

                                              5
does not alter the passive nature of the alleged conduct.” Morrow, 719 F.3d at 179. Just

as in Morrow, where the school’s failure to expel the student was not an affirmative act,

the failure to prevent McCarthy from driving while working is not an affirmative act.

Allowing McCarthy to return to work does not constitute an affirmative act necessary to

establish a state-created danger claim.

                                      B. Monell Claim

       The Hammons’ § 1983 claim against the township, the supervisors, and McCarthy

will fare no better under Monell. In Monell v. Department of Social Services, 436 U.S.

658, 691 (1978), the Supreme Court held a local government cannot be held liable under

§ 1983 under a theory of respondeat superior. Rather, “[i]ndividual defendants who are

policymakers may be liable under § 1983 if it is shown that such defendants, ‘with

deliberate indifference to the consequences, established and maintained a policy, practice

or custom which directly caused [the] constitutional harm.’” A.M. ex rel. J.M.K. v.

Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (second alteration in

original) (citing Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).

As noted above, to prove deliberate indifference, the plaintiff must prove the following

elements: (1) there is an unreasonable risk of a deprivation of rights; (2) that the

supervisor or municipality was aware of the risk; (3) that they were indifferent to that

risk; and (4) the failure to enact policies regulating that risk caused the deprivation of

rights in this instance. Sample, 885 F.2d at 1118.

       The Hammons allege that Appellees (1) failed to adopt a policy, practice, or

custom which prohibited the employment of a person with known medical conditions; (2)

                                              6
adopted a policy, practice, or custom of not monitoring McCarthy’s medical condition;

and (3) adopted a policy, practice or custom of employing and continuing to employ a

police officer who did not meet the state qualifications for the position. Further, the

Hammons argue that they have averred sufficient facts to demonstrate deliberate

indifference by the township, the supervisors, and McCarthy.

       A municipality cannot be held liable where the plaintiff has experienced no

violation of her constitutional rights. See Brown v. Commonwealth of Pa. Dep’t of Health

Emergency Med. Servs. Training Inst., 318 F.3d 473, 482 (3d Cir. 2003). The Hammons

have not demonstrated that their constitutional rights were violated because they have not

shown that either a “special relationship” or state-created danger existed. Thus, the

District Court properly dismissed the Monell claim.

                         C. Denial of Leave to Amend Complaint

       The Hammons also contend that the District Court erred in failing to provide the

Hammons an opportunity to amend their complaint. When dismissing a complaint in a

civil rights case, the District Court must sua sponte provide the plaintiff with an

opportunity to amend the complaint, or make a finding that such an amendment would be

futile or inequitable. Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). The

Hammons allege that information learned during discovery after their original complaint

was filed would strengthen their stated claims.

       The Third Circuit reviews a district court’s denial of leave to amend for abuse of

discretion. In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1434 (3d

Cir. 1970). If a claim “is vulnerable to 12(b)(6) dismissal, a district court must permit a

                                              7
curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515

F.3d at 236 (citation omitted). Based on this standard of review, and the Hammons’

failure to articulate how any new additional facts would cure their complaint of the

deficiencies analyzed above, we find that the denial of leave to amend was not an abuse

of discretion. No additional information could make the Hammons’ complaint satisfy

each requirement of their federal claims. Thus the opportunity to amend their complaint

would be futile and is not required.

                                       IV. Conclusion

       For the foregoing reasons, we affirm the District Court’s order granting a motion

to dismiss.




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