              Case: 14-15638    Date Filed: 07/30/2015   Page: 1 of 4


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-15638
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:14-cv-03441-MHS



QADIYR SADIQ,

                                                               Plaintiff-Appellant,

                                    versus

HAROLD J. WELLER,
Fire Chief, Individually and Personal Capacity,


                                                              Defendant-Appellee.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (July 30, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Qadiyr Sadiq, proceeding pro se, appeals the district court’s dismissal with

prejudice of his 42 U.S.C. § 1983 complaint against Harold J. Weller, Chief of the

City of Fairburn Fire Department, in his individual and personal capacity, for

failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). The

complaint alleged that Sadiq’s house burned down due to inadequate water

pressure and the fire department’s failure to check for hot spots, which he

attributed to Weller’s incompetence, thus depriving Sadiq of his property in

violation of the Fourteenth Amendment Due Process Clause. On appeal, Sadiq

argues that the district court erred in dismissing his complaint for failure to state a

claim and in dismissing the complaint without first providing him with an

opportunity to amend.

      We review dismissals under Rule 12(b)(6) de novo, accepting the facts

alleged in the complaint as true and construing them in the light most favorable to

the plaintiff. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). We generally

review the denial of an opportunity to amend for an abuse of discretion, but we

review questions of law, such as whether amendment would be futile, de novo.

Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir. 2007).

      Although a complaint need not set forth detailed factual allegations, the

plaintiff must allege sufficient facts to render the claim “plausible on its face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974 (2007). A


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plausible claim for relief requires pleading “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, 129 S.Ct. 1937, 1949 (2009).

“Ordinarily, a party must be given at least one opportunity to amend before the

district court dismisses the complaint.” Id. at 1014. However, an opportunity to

amend need not be given if amendment would be futile. Id.

      To avoid dismissal of a 42 U.S.C. § 1983 claim, a plaintiff must allege facts

demonstrating that he was deprived of a constitutional right by a person acting

under color of state law. Holmes v. Crosby, 418 F.3d 1256, 1258 (11th Cir. 2005).

“Absent the existence of an underlying constitutional right, no section 1983 claim

will lie.” Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th

Cir. 1987).

      The Due Process Clause of the Fourteenth Amendment provides that no state

shall “deprive any person of life, liberty, or property without due process of law.”

U.S. Const. amend. XIV, § 1. The United States Supreme Court has clarified that

“[t]he Clause is phrased as a limitation on the State’s power to act, not as a

guarantee of certain minimal levels of safety and security.” DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998, 1003

(1989). Thus, “the Due Process Clause[] generally confer[s] no affirmative right to

governmental aid, even where such aid may be necessary to secure life, liberty, or


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property interests of which the government itself may not deprive the individual.”

Id. at 196, 109 S.Ct. at 1003.

      As the Supreme Court made clear in DeShaney, the Due Process Clause

confers no affirmative right to governmental services. Thus, Sadiq failed to state a

cognizable due process claim, as there is no constitutional right to fire protection.

Therefore, Sadiq could not prevail in a § 1983 action against Weller under any

version of the facts, and amendment would have been futile. Accordingly, the

district court did not err in dismissing Sadiq’s complaint with prejudice for failure

to state a claim.

      AFFIRMED.




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