                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2006

Mohammed v. Phila Sch Dist
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1599




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 05-1599


                                SHARON MOHAMMED,
                         on behalf of Richard Mohammed, a minor,

                                                           Appellant

                                             v.

             THE SCHOOL DISTRICT OF PHILADELPHIA, PAUL G. VALLAS,
                     EDWARD MONASTRA, THOMAS SMYTH,
       NILVIA FRANCO-DEJESUS, GORDON ELDER, JOSEPH MEYER, IZZY PADRON,
               SHAWN RHODES, FRANK ROMAN, BRYAN SINGLETARY1




                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                   (No. 03-cv-4766)
                     The Honorable Cynthia M. Rufe, District Judge


                      Submitted Under Third Circuit LAR 34.1(a)
                                    May 8, 2006
       Before: BARRY and SMITH, Circuit Judges, and RODRIGUEZ2, District Judge

                                   (Filed: June 5, 2006)




   1
     All Defendants other than the School District, Paul G. Vallas, Superintendent of the
School District, Edward Monastra, principal of Olney High School, and Thomas Smyth,
the sergeant in charge of the school police officers, were dismissed from the case prior to
the district court’s ruling on Defendants’ motion for summary judgment.
   2
   The Honorable Joseph H. Rodriguez, Senior District Judge, United States District
Court for the District of New Jersey, sitting by designation.
                               OPINION OF THE COURT



RODRIGUEZ, District Judge.

       Sharon Mohammed, on behalf of her minor son, appeals from an order granting the

Defendants’ motion for summary judgment on her section 1983 case grounded in the

“state-created danger” theory. The underlying Complaint alleged a violation of Olney

High School student Richard Mohammed’s substantive due process rights to bodily

integrity and safety (Count I) as well as willful misconduct (Count II).

                                              I.

       On the morning of February 4, 2003, tenth grader Richard Mohammed was

punched in the face by another high school student while walking in a stairwell at Olney

High School in Philadelphia. Upon arriving at the school on the morning of the attack,

Richard Mohammed took “stairwell four,” on his way to his advisory room on the fourth

of six floors. Stairwell four was the only stairwell available to students at that time of the

morning. Between the third and fourth floors, an unidentified student attempted to attack

the student in front of Richard, but the intended victim ducked, and the attacker punched

Richard in the eye. Richard suffered traumatic hyphema of the eye and a fracture of the

right facial bone; he was in the hospital for six days.

       Despite the fact that the number of violent incidents at Olney High School had


                                              2
increased steadily from 1999 through 2003,3 there was no surveillance camera in stairwell

four and no security personnel were present to witness the attack. Attendance records

indicated that Olney High School was short four security officers on the day of the attack,

even though the school’s principal, Defendant Edward Monastra, had written a

memorandum to the School District on October 29, 2002 (and again on February 12, 2003

and March 18, 2003), imploring the District to provide the full complement of security

officers to which Olney High School was entitled. In fact, when the principal met with

security officials to address the problem on January 29, 2003, just days before the attack

on Richard Mohammed, Olney High School had been short a full complement of security

officers on 83 out of the previous 85 school days. Monastra described “a tremendous

amount of fights, serious incidents, fires like crazy . . . the building basically was out of

control.”

                                              II.

       This Court has jurisdiction over appeals from all final decisions of the district

courts pursuant to 28 U.S.C. § 1291. We review a grant of summary judgment de novo,

applying the same test as the district court. MBIA Ins. Corp. v. Royal Indem. Co., 426

F.3d 204, 209 (3d Cir. 2005). Summary judgment should be awarded only when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together with



   3
    There were 60 reported assaults or attacks on students or faculty/staff in 1999-2000, 87 in
2000-2001, and with 57 in the first half of 2002-03, Mohammed’s expert projected that well over
100 incidents would have been reported for the 2002-03 school year.

                                               3
the affidavits, if any, show that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). All

reasonable inferences must be made in favor of the nonmoving party, and the court may

not weigh the evidence or assess credibility. Id.

                                              III.

         This Court recently had occasion to review the “state-created danger” theory of

liability in cases brought pursuant to 42 U.S.C. § 1983. See Bright v. Westmoreland

County, 443 F.3d 276 (3d Cir. 2006). There, the Court reiterated the four salient elements

of a viable state-created danger claim. Id. at 281. First, the harm ultimately caused must

have been foreseeable and fairly direct. Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir.

1996). Second, a state actor must have acted with a degree of culpability that shocks the

conscience. County of Sacramento v. Lewis, 523 U.S. 833 (1998); Miller v. City of

Philadelphia, 174 F.3d 368, 375-76 (3d Cir. 1999). Such culpability is more than the state

actor acting in willful disregard for the plaintiff’s safety. Rivas v. City of Passaic, 365

F.3d 181, 194 (3d Cir. 2004). Third, a special relationship must have existed between the

state and the plaintiff 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. Kneipp, 95

F.3d at 1209, n.22; Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906, 913 (3d Cir.

1997).

         Finally, a state actor must have “used his or her authority in a way that created a

                                               4
danger to the citizen or that rendered the citizen more vulnerable to danger than had the

state not acted at all.” Bright, 443 F.3d at 281. As to the fourth element, the Court

stressed that “[i]t is misuse of state authority, rather than a failure to use it, that can

violate the Due Process Clause.” Id. at 282. In other words, “[l]iability under the state-

created danger theory is predicated upon the states' affirmative acts which work to the

plaintiffs' detriments in terms of exposure to danger.” D.R. by L.R. v. Middle Bucks

Area Vo. Tech. School, 972 F.2d 1364, 1374 (3d Cir. 1992) (en banc) (emphasis

supplied); contra Bright, 443 F.3d at 290 (Nygaard, J., dissenting) (stressing that the

Court should not focus on whether the act is appropriately characterized as “affirmative”).

       Although the Court is “naturally sympathetic” to the plight of Richard

Mohammed, see DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189, 212

(1989), we cannot find that the Defendants created the danger that he faced.

                                               IV.

       Because of the atmosphere of violence that permeated Olney High School, it was

foreseeable that Richard Mohammed, or any student, could have been attacked at any

time and in any location by another student. Such an attack, however, was not a fairly

direct result of the Defendants’ actions. The state actors in this case had no knowledge

that Richard Mohammed was in any more danger than each and every other student at

Olney High. Indeed, he was not even the intended victim of the assault. Nor did the

Defendants have knowledge that stairwell four was in need of monitoring, as only one of

the almost 200 violent incidents prior to the day of this attack took place in stairwell four.

                                                5
Although their security plan obviously failed in this instance, Defendants did not ignore

the rampant violence at Olney High, nor did they conceal any of the incidents.

Surveillance in stairwell four may have aided in apprehending the attacker, but it is

speculation to say that it would have prevented the attack. It is also speculative to assume

that if the full complement of security officers reported to Olney High that day, one of

them would have been assigned to monitor stairwell four. Thus, the Court cannot find

that the attack was a fairly direct result of any lack of surveillance or monitoring.

       Further, the Defendants’ actions neither injured Richard Mohammed nor rendered

him “more vulnerable to injury from another source than he . . . would have been in the

absence of state intervention.” Scheiber v. City of Philadelphia, 320 F.3d 409, 416 (3d

Cir. 2003). Even considering that the full complement of security officers was not

present at the school on the day of the attack, we cannot say that such a shortage “created

an opportunity that otherwise would not have existed,” Mark v. Borough of Hatboro, 51

F.3d 1137, 1152 (3d Cir. 1995), for the attack to occur. There is nothing about the state’s

conduct that placed Richard Mohammed in a position of increased danger. Although

Mohammed produced an expert report indicating that Defendants’ “actions and failures to

supervise on or prior to February 4, 2003 were negligent and reckless and as such were a

significant contributing cause to [the incident] and subsequent injuries to [Richard

Mohammed],” mere negligence or recklessness is insufficient to sustain a claim under the

state-created danger theory.

       Similarly, any negligence or recklessness of the individual Defendants in failing to

                                              6
monitor the stairwell cannot serve as the basis of a claim for willful misconduct under 42

Pa. C.S.A. § 8550. Willful misconduct occurs only where “the actor desired to bring

about the result that followed or at least was aware that it was substantially certain to

follow, so that such desire can be implied.” Bright, 443 F.3d at 287 (quoting Robbins v.

Cumberland County Children and Youth Services, 802 A.2d 1239, 1252-53 (Pa. Commw.

Ct. 2002)). The Defendants’ conduct in this case cannot be described as intentional, so it

cannot come under the purview of willful misconduct.

       Therefore, we will affirm the decision of the district court granting summary

judgment in favor of the Defendants.




                                              7
