                                                     NOT PRECEDENTIAL


              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                             ___________

                             No. 19-3309




G.S., as an individual and mother and natural guardian of S.S., a minor,

                                                   Appellants

                                   v.

            PENN-TRAFFORD SCHOOL DISTRICT;
         GREGORY CAPOCCIONI; ANTHONY AQUILIO;
            MATTHEW HARRIS; SCOTT INGLESE


             ____________________________________

       On Appeal from the United States District Court for the
                 Western District of Pennsylvania
               (District Court No.: 2-18-cv-00204)
          District Court Judge: William S. Stickman, IV
          ______________________________________

             Submitted under Third Circuit LAR 34.1(a)
                         on April 21, 2020


   Before: HARDIMAN, RENDELL and FISHER, Circuit Judges
                (Opinion filed: May 13, 2020)
                                      O P I N I O N*


RENDELL, Circuit Judge:

       G.S, parent and guardian of minor S.S., appeals the District Court’s grant of

Penn-Trafford School District’s motion to dismiss for failure to state a claim. For the

following reasons, we find that the District Court correctly determined that G.S.’s

complaint failed to state a claim, however erred in dismissing the case without leave to

amend or considering futility of amendment. We will therefore remand for further

proceedings consistent with this opinion.

I.     BACKGROUND

       A.     Factual Background 1

       As a freshman at Penn-Trafford High School, S.S. was the subject of bullying by a

group of her fellow students. The students posted threatening messages on social media

about S.S., directly sent S.S. threatening messages and called S.S. derogatory names.

S.S. reported this bullying to the school’s Assistant Principal, Gregory Capoccioni.


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
 In reviewing a dismissal under Federal Rule of Civil Procedure 12(b)(6), we must
“accept[] all well-pleaded allegations in the complaint as true and view[] them in the light
most favorable to the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d
Cir. 2011). Thus, we review the facts as they are alleged in the complaint.
                                             2
Capoccioni characterized S.S.’s complaints as “girl drama” and spoke with the students

who had been bullying S.S. A. 33. The bullying continued the following school year.

The same group of students yelled at S.S. and threw food at S.S. during school. S.S.

again reported these incidents to Capoccioni. Capoccioni told S.S. to ignore them and

said there was nothing the school could or would do.

       In S.S.’s sophomore year, one of the students discovered that S.S. had spoken to

Capoccioni and retaliated against S.S by throwing her into a locker and stating that

“snitches get stitches.” A. 35. S.S. reported the ongoing bullying several more times,

and on one occasion, Capoccioni told S.S. to “yell back when the female students yelled

mean things to her.” A. 37. Following that advice, S.S. yelled back at one of her

aggressors, A.T., who responded “I’m going to kick your ass!” A. 39. The following

day, Capoccioni called S.S. into his office and informed S.S. that there was a rumor a

fight would occur between S.S. and A.T that afternoon. Capoccioni told S.S. that if there

were a fight between S.S. and A.T., “S.S. would win because she is taller.” A. 40.

During that meeting, S.S. reported that A.T. smoked marijuana. After S.S. left,

Capoccioni called A.T. to his office and questioned her about her marijuana use. Later

that day, A.T. confronted S.S. and asked if she had informed Capocioni about her alleged

drug use. A.T. then attacked S.S. by pushing her head into the wall and punching her in

the head and nose, causing S.S. to lose consciousness. S.S. suffered several serious

injuries and was taken to the hospital.




                                            3
       S.S. was suspended for three days because of her involvement in the fight. S.S.

requested that the suspension be removed from her school record, however the school

administrators denied her request. Assistant Superintendent Scott Inglese said that “prior

incidents of . . . S.S. telling on others, frequently being in the office reporting bullying

incidents, and prior incidents of verbal confrontations with other students factored into

the[ir] decision to uphold the suspension.” A. 48 (internal quotation marks omitted).

       B.     Procedural History

       G.S. brought two claims under 42 U.S.C § 1983: (1) a state-created danger claim

against the school administrators, and (2) a claim under Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) against Penn-Trafford School District (“the school district”) and its

administrators. 2 The defendants moved to dismiss the complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). The District Court granted the

defendants’ motion, ruling that: (1) G.S. did not plead affirmative actions which

demonstrated that the school administrators created or exacerbated S.S.’s danger, and (2)

G.S. did not plead sufficient facts to establish that the school district had a custom,

practice, or policy of ignoring reports of school bullying. The District Court marked the

case as closed without allowing leave to amend. On appeal, G.S. challenges the District

Court’s Order granting the Rule 12(b)(6) motion and argues that the District Court should



2
 The school administrators include: (1) Gregory Capoccioni, Assistant Principal of Penn-
Trafford High School, (2) Anthony Aquilio, Principal of Penn-Trafford High School, (3)
Matthew Harris, Superintendent of Penn-Trafford School District, and (4) Scott Inglese,
Assistant Superintendent of Penn-Trafford School District.
                                               4
have granted her leave to amend to state a First Amendment retaliation claim before

closing the case.

       The District Court had jurisdiction under 28 U.S.C. § 1331. We have appellate

jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s Rule 12(b)(6) dismissal. Great W. Mining & Mineral Co. v. Fox Rothschild

LLP, 615 F.3d 159, 163 (3d Cir. 2010). We review the District Court’s dismissal without

leave to amend for abuse of discretion. Id.

II.    DISCUSSION

       A.     State-Created Danger

       G.S. alleges that the school administrators violated S.S.’s liberty interest under the

Due Process Clause of the Fourteenth Amendment by failing to protect S.S. from other

students’ attacks and by encouraging students to engage in violent behavior. The Due

Process Clause generally does not impose upon the state an affirmative duty to protect its

citizens from harms caused by private actors. See DeShaney v. Winnebago Cty. Dep’t of

Soc. Servs., 489 U.S. 189, 195 (1989). However, the state-created danger doctrine stands

as an exception to the rule, which the plaintiff can use to establish liability under § 1983.

See Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996).

       To allege a state-created danger, G.S. must assert that “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.” Bright v.


                                              5
Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (citation omitted). In Morrow v.

Balaski, 719 F.3d 160 (3d Cir. 2013) (en banc), we held that the plaintiff failed to state a

state-created danger claim because a school’s repeated inaction and failure to protect a

student does not constitute an “affirmative act.” Id. at 177-78. The “affirmative act”

requirement “serves to distinguish cases where officials might have done more from

cases where officials created or increased the risk itself.” Id. at 179 (alterations and

citation omitted).

       G.S. reasons that because Capoccioni “took no action to stop [the student] from

assaulting S.S. during school hours,” he “encourag[ed]” the violent behavior. G.S. Br. 6.

This inference is unsupported by our case law. As we have consistently held, inaction

does not give rise to an affirmative act, and therefore, Capoccioni’s failure to respond to

S.S.’s complaints is insufficient to establish liability under Morrow.

       G.S. also argues that Capoccioni’s conduct during his meetings with S.S. put S.S.

at an increased risk of danger. This includes his comment that S.S. would win in a fight

against A.T. and his act of summoning A.T. to his office after S.S. reported A.T.’s

marijuana use. While we agree these are affirmative actions, they did not render S.S.

more vulnerable to danger. See Kaucher v. County of Bucks, 455 F.3d 418, 432 (3d Cir.

2006) (“[A] specific and deliberate exercise of state authority, while necessary . . . , is not

sufficient.”). “There must be a direct causal relationship between the affirmative act of

the state and plaintiff’s harm. Only then will the affirmative act render the plaintiff more




                                               6
vulnerable to danger than had the state not acted at all.” Id. (emphasis added) (internal

quotation marks and citation omitted).

       First, the reason that Capoccioni initially called S.S. into his office was because

there was a rumor A.T. was planning on fighting S.S. that afternoon. Thus, Capoccioni’s

statement that S.S. would win the fight, although inappropriate, did not cause S.S. harm.

Second, the complaint does not allege that Capoccioni informed A.T. that S.S. had

reported her marijuana use, and thus, we agree with the District Court that it would be

“entirely speculative” to infer that Capoccioni caused the fight between A.T. and S.S. A.

16; see also Schuylkill Energy Res., Inc. v. Pa. Power & Light Co., 113 F.3d 405, 417 (3d

Cir. 1997) ( “We are not . . . required to accept as true unsupported conclusions and

unwarranted inferences.”). 3 Accordingly, G.S. failed to state a claim under the state-

created danger exception.

       B.     Monell Liability

       To state a claim against the school district under Monell, G.S. must allege that it

had a “policy or custom” which served as the “proximate cause of the injuries suffered.”

Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990). An official policy is made when


3
  Even if we accepted that Capoccioni caused S.S. to be more vulnerable to danger by
asking A.T. about her marijuana use, this argument still fails. In order to allege a state-
created danger claim, the state actor must have “acted with a degree of culpability that
shocks the conscience.” Bright, 443 F.3d at 281 (citation omitted). Because it does not
“shock the conscience” for an Assistant High School Principal to follow up on a student’s
alleged marijuana use, we reject this argument.


                                             7
a “decisionmaker possessing final authority to establish municipal policy with respect to

the action issues an official proclamation, policy, or edict.” Andrews v. City of

Phila., 895 F.2d 1469, 1480 (3d Cir. 1990) (internal quotation marks and citation

omitted).

       First, G.S. argues that the school district had a policy of ignoring reports of

bullying, which caused students to be physically assaulted. This argument fails because,

as discussed supra, a school’s failure to respond to reports of bullying cannot give rise to

liability under § 1983 because it is not an affirmative act. Second, G.S. argues that the

school district improperly suspended S.S. for reporting instances of bullying. Although

suspending S.S. was an affirmative act, the suspension did not expose S.S. to danger

because the fight with A.T. was already over, and therefore, did not cause S.S. further

harm. Accordingly, because G.S. has not adequately pleaded a constitutional violation,

G.S. has failed to state a Monell claim.

       C.     Leave to Amend

       While the District Court correctly determined that G.S.’s complaint failed to state

a claim, the District Court erred in dismissing the complaint without granting leave to

amend. “[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit

a curative amendment, unless an amendment would be inequitable or futile.” Phillips v.

County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). A district court must provide the

plaintiff this opportunity even if the plaintiff does not seek leave to amend. Id.



                                              8
       G.S. alleges that she requested leave to amend in her response brief to the

defendants’ motion to dismiss, seeking to add a First Amendment retaliation claim, and

she reiterates that request in this Court. The District Court stated in a footnote that G.S.’s

complaint “never references the First Amendment” and therefore dismissed her claim

because “[i]t does not put the Defendants on notice that Plaintiff is pursuing a First

Amendment claim for retaliation.” Regardless of whether G.S. properly pled a First

Amendment retaliation claim in her complaint, the District Court provided no valid

explanation for its dismissal of the case without allowing leave to amend. Appellees

argue that G.S. should not be afforded leave to amend because amendment would be

futile. The District Court made no finding as to whether amendment would be

inequitable or futile as to a claim for First Amendment retaliation and therefore erred in

dismissing the complaint without leave to amend. Foman v. Davis, 371 U.S. 178, 182

(1962). Accordingly, we will remand for further proceedings. See Dooley v. Wetzel, --

F.3d--, 2020 WL 1982194, at *6 (3d Cir. Apr. 27, 2020).

III.   CONCLUSION

       For the foregoing reasons, we will vacate the District Court’s Order marking the

case as closed and remand for further proceedings consistent with this opinion.




                                              9
