                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                      File Name: 13a0787n.06
                                                                                         FILED
                                            No. 12-1367                            Aug 26, 2013
                                                                               DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

BRIDGET WALKER, et al.,                                )

       Plaintiffs-Appellants,                          )      ON APPEAL FROM THE
v.                                                     )      UNITED STATES DISTRICT
DETROIT PUBLIC SCHOOL DISTRICT, et al.                 )      COURT EASTERN DISTRICT
                                                       )      OF MICHIGAN
       Defendants-Appellees.                           )
                                                              OPINION


BEFORE: NORRIS, COOK, and McKEAGUE, Circuit Judges.

       ALAN E. NORRIS, Circuit Judge. A senseless shooting near Detroit’s Henry Ford

High School killed one student and seriously injured three others. The victims sued the shooters,

but also sought redress from the Detroit school system, the high school principal, and two school

security employees. The plaintiffs appeal the district court’s judgment in favor of the school

defendants on all claims. For the reasons that follow, we affirm the district court judgment.


                                                  I.


       Henry Ford High School has a long history of violence and gang activity. The record shows

that fights broke out on average twice a week, and it was not uncommon for guns or other dangerous

weapons to be brought to school. In addition, the school has experienced multiple “lockdowns” in

response to the presence of such weapons. Police officers testified that they often were summoned

to the school to break up fights that would spill out of the school and into the streets. These fights
sometimes involved as many as forty students with another sixty or so watching. The police routinely

confiscated handguns, knives, and other weapons from those in the crowd.


        On October 16, 2008, Henry Ford students Christopher Walker and William Morton began

to fight in a hallway. School security officers Carmen Evans and Colin Lowery broke up the fight

and sent Walker and Morton back to their respective classes. After school, Morton, along with

Derryck Brantley and Devon Bell, returned and opened fire on a group of students walking away

from the school. Walker was killed, and Kejuana McCants, Leon Merriweather, and Malik Slater

were injured.


        Plaintiffs sued Morton, Brantley, and Bell (the convicted shooters) for assault and battery.

They also sued the school district, school principal, and the two security officers on theories under

42 U.S.C. § 1983 of violation of their substantive due process rights by virtue of state-created

danger, and under state law theories of gross negligence and public nuisance.


        The district court ultimately entered judgments totaling $8 million against each of the

shooters on the assault and battery claim. However, it dismissed the school system as a defendant

for failure to state a claim and later granted summary judgment in favor of the school employees on

all claims.


                                                 II.


        Plaintiffs raise three arguments on appeal. First, they contend in support of their §1983 due

process claim that the school system’s merger of nearby Redford High School into Henry Ford

resulted in a “state-created danger” of increased violence due to the known presence of rival gangs

at the two schools. Second, they maintain that school officials failed to respond adequately to the
fight between Morton and Walker, and that failure caused a “state-created danger” that led to the

shooting. Finally, the plaintiffs argue that a twenty-five year history of serious gang violence in and

around Henry Ford represents a “public nuisance” under state law attributable to the school system

and the school officials.


        We review a dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) de

novo. McCormick v. Miami Univ., 693 F.3d 654, 658 (6th Cir. 2012). The court must “construe the

plaintiff’s complaint liberally, in plaintiff’s favor, accepting all factual allegations as true and

drawing all reasonable inferences in favor of the plaintiff.” Logsdon v. Hains, 492 F.3d 334, 340 (6th

Cir. 2007). However, the factual allegations must “raise a right to relief above the speculative level.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Stated another way, the plaintiff must provide

“more than conclusions and an unsubstantiated recitation of the necessary elements of a claim.”

McCormick, 693 F.3d at 658.


        We also review de novo a district court’s grant of summary judgment. Big Dipper Entm’t,

L.L.C. v. City of Warren, 641 F.3d 715, 717 (6th Cir. 2011). Summary judgment is appropriate only

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When reviewing the evidence, we

draw all inferences in the light most favorable to the non-moving party. Big Dipper Entm’t, L.L.C.,

641 F.3d at 717. “Credibility determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions, not those of a judge . . . .” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986).


                                                   III.
        With those precepts in mind, we turn to the plaintiffs’ appeal. We first address the alternative

state-created danger theories, and then analyze the public nuisance claim.


1. State-Created Danger


        First, the plaintiffs challenge the district court’s dismissal of their claim against the Detroit

Public School District based on the theory that the merger of the high schools resulted in a state-

created danger. There is no constitutional requirement that the government must “protect the life,

liberty, and property of its citizens against invasion by private actors.” DeShaney v. Winnebago Cnty.

Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). In DeShaney, government authorities temporarily

removed a child from his abusive father, but when the child was later returned home the father beat

the child so severely that he suffered brain damage. Id. at 192-93. The Court explicitly recognized

that the government has a duty to protect an individual while the government has custody or control

of that individual, or has otherwise created a special relationship that justifies a duty to protect. Id.

at 199-200; see also Stemler v. City of Florence, 126 F.3d 856, 867 (6th Cir. 1997). However, the

Court noted that the child was not injured while in custody and, though the government returned the

child to a situation where the dangers of harm to the child were evident, the government “played no

part in their creation, nor did it do anything to render [the child] more vulnerable to them.”

DeShaney, 489 U.S. at 201. Therefore, the Court held that there was no due process violation and

the government could not be held liable. Id.

        Lower courts, including this circuit, have relied on this language to recognize a “state-created

danger” exception that creates a duty to protect in limited circumstances. See, e.g., Kallstrom v. City

of Columbus, 136 F.3d 1055, 1066 (6th Cir. 1998) (The government “may not cause or greatly
increase the risk of harm to its citizens without due process of law through its own affirmative

acts.”).

           To establish a “state-created danger” claim, a plaintiff must show “(1) an affirmative act by

the state which either created or increased the risk that the plaintiff would be exposed to an act of

violence by a third party; (2) a special danger to the plaintiff wherein the state’s actions placed the

plaintiff specifically at risk, as distinguished from a risk that affects the public at large; and (3) the

state knew or should have known that its actions specifically endangered the plaintiff.” Koulta v.

Merciez, 477 F.3d 442, 445 (6th Cir. 2007) (quoting Jones v. Reynolds, 438 F.3d 685, 690 (6th Cir.

2006)).

           It is often difficult in the abstract to characterize whether the government’s handling of a

situation constitutes an “affirmative act” or a “failure to act.” It is an important threshold question

because a “failure to act is not an affirmative act under the state-created danger theory.” Jones v.

Reynolds, 438 F.3d 685, 691 (6th Cir. 2006) (quotation omitted) (collecting numerous cases

illustrating a failure to act as insufficient for state-created danger). “Because it is sometimes difficult

to distinguish action from inaction . . . we have refined the test. Rather than focusing on the often

metaphysical question of whether [officials’] behavior amounts to affirmative conduct or not, we

have focused on whether [the victim] was safer before the state action than he was after it.” Koulta,

477 F.3d at 445-46 (quotation omitted) (holding that briefly detaining an intoxicated driver but

subsequently ordering her to leave without determining the extent of intoxication did not “create”

or “increase” the dangers of her drunk-driving).

           When an official intervenes to protect a person, then later returns the person to “a situation

with a preexisting danger,” the intervention does not satisfy the affirmative act requirement for state-

created danger. Bukowski v. City of Akron, 326 F.3d 702, 709 (6th Cir. 2003). In Bukowski, Akron
police took Lisa Bukowski, a mentally challenged nineteen-year-old female, away from the home

of thirty-nine year old Leslie Hall, who had communicated with Bukowski online and encouraged

her to travel from Pennsylvania to Akron to visit him. Id. at 705. In response to a missing persons

report and after a trace of Bukowski’s online activity, Akron police took custody of her and

interviewed her. Id. at 705-06. The police recognized that Bukowski was mentally challenged, but

concluded she was reasonably capable given her ability to read, write, and travel to Akron on her

own. Id. at 706. After determining they had no legal authority to detain Bukowski, the police

honored her repeated request to return to Hall’s residence. Id. When Bukowski’s parents picked up

their daughter from Hall’s residence, they learned she had been repeatedly raped, both before and

after the police had intervened. Id. The Bukowskis argued that the police “affirmatively acted by

returning her to Hall’s residence.” Id. at 709. We held that “merely returning a person to a situation

with a preexisting danger” cannot serve as an affirmative act for a state-created danger claim. Id.;

see also DeShaney, 489 U.S. at 201.

        In addition to showing an affirmative act, a state-created danger claim requires that

government “‘actions place[d] the victim specifically at risk, as distinguished from a risk that affects

the public at large.’” McQueen v. Beecher Cmty. Schs., 433 F.3d 460, 468 (6th Cir. 2006) (quoting

Kallstrom, 136 F.3d at 1066). The special danger requirement is a significant hurdle for plaintiffs

attempting to establish a state-created danger claim. Id. (“As with the affirmative act requirement,

we have set a high bar for the special danger requirement.”). In cases where this court has recognized

a state-created danger, “the government could have specified whom it was putting at risk, nearly to

the point of naming the possible victim or victims.” Jones, 438 F.3d at 696 (citation omitted).

        For the third prong of state-created danger, “[t]he state must have known or clearly should

have known that its actions specifically endangered an individual.” Kallstrom, 136 F.3d at 1066. In
cases “where there is opportunity for reflection and unhurried judgments, a plaintiff must show that

the state acted with deliberate indifference.” Arledge v. Franklin Cnty., 509 F.3d 258, 263 (6th Cir.

2007) (quotation omitted).

       When the state makes complex governance decisions, even if a plaintiff can show that the

state had a “subjective awareness of substantial risk of serious injury,” a court must “make some

assessment that [the state] did not act in furtherance of a countervailing governmental purpose that

justified taking that risk.” Hunt v. Sycamore Cmty. Sch. Dist. Bd. of Educ., 542 F.3d 529, 541 (6th

Cir. 2008). As we have noted, “It is in the very nature of deliberative bodies to choose between and

among competing policy options, and yet a substantive due process violation does not arise whenever

the government’s choice prompts a known risk to come to pass. . . . Many, if not most, governmental

policy choices come with risks attached . . . and yet ‘it is not a tort for government to govern’ by

picking one option over another.” Schroder v. City of Fort Thomas, 412 F.3d 724, 729 (6th Cir.

2005) (quoting Scheuer v. Rhodes, 416 U.S. 232, 241 (1974)). As a result, even if a state actor is

aware of a substantial risk of harm when it takes action, this court is “unlikely to find deliberate

indifference if [the] action was motivated by a countervailing, legitimate governmental purpose.”

Hunt, 542 F.3d at 542.

       In this case, neither merging the high schools nor breaking up the fight satisfies the

affirmative act element of a state-created danger claim. Though the school board elected to merge

the schools, plaintiffs concede that chronic gang-related violence was present both before and after

the merger. The plaintiffs cite common sense in support of their claim that merging schools

containing rival gang members created or increased the risk of gang violence. However, plaintiffs’

claims are in the form of conclusory statements without any factual support. A district court need
not   and should not     accept such conclusory allegations as true. Ashcroft v. Iqbal, 556 U.S. 662,

678-79 (2009).

        Further, even if the plaintiffs had alleged facts facially supporting a reasonable inference that

the merger would increase the risk of gang violence after the merger of the schools, the relationship

between the merger and the violence that occurred was “too attenuated and indirect to count as an

‘affirmative act’ that placed [the plaintiffs] in the setting of a state-created peril.” Schroder, 412 F.3d

at 729 (6th Cir. 2005) (citing Martinez v. California, 444 U.S. 277, 285 (1980) (holding that

decedent’s death five months after a parole board granted killer’s release “is too remote a

consequence of the parole officers’ action to hold them responsible under the federal civil rights

law”)). We therefore find no error in the district court’s dismissal of the plaintiffs’ due process claim

to the extent it is based on the merger of the high schools.

        Turning to the fight on the day of the shooting, the plaintiffs contend that, if school officials

had intervened more effectively, the shooting may have been averted. Even assuming this is true,

there was no evidence presented that, by breaking up the fight, school officials created or greatly

increased the risk that Morton would return after school and open fire into a crowd. With the benefit

of hindsight the school officials may wish they had handled the fight differently. However, their

actions fall squarely in line with cases such as Deshaney, Jones, Koulta, Bukowski, and others, where

state actors have intervened and subsequently returned the victim to a pre-existing danger and such

intervention was held not to be an “affirmative act” for state-created danger purposes.

        As in so many state-created danger cases, the harm inflicted on the plaintiffs is tragic.

However, the violence that occurred was unquestionably committed by private actors, and the

plaintiffs have neither stated a plausible claim that the school district nor advanced sufficient factual

support for the claim that the school officials played a part in creating or greatly increasing the
danger that the plaintiffs would be victims of gun violence as they left school. Absent sufficient

allegations and evidence of such an affirmative act, the plaintiffs due process claims must fail. It

follows that we need not examine whether the plaintiffs faced a “special danger” or whether there

was requisite culpability on the part of the school system or school officials. The district court’s

disposition of both state-created danger theories must be upheld.

2. Public Nuisance


       The plaintiffs argue that the long history of gang violence in and around Henry Ford

constituted a public nuisance, and the actions of the school officials on the day of the shooting were

a proximate cause of the plaintiffs’ injuries. They challenge the district court’s summary judgment

ruling in the school officials’ favor. Gang violence is undoubtedly a public nuisance in some sense,

but the elements of the state-law tort of public nuisance cannot be satisfied here.

       Michigan state law defines a public nuisance as follows:


               A public nuisance is an unreasonable interference with a common right
       enjoyed by the general public. The term “unreasonable interference” includes conduct
       that (1) significantly interferes with the public’s health, safety, peace, comfort, or
       convenience, (2) is proscribed by law, or (3) is known or should have been known
       by the actor to be of a continuing nature that produces a permanent or long-lasting,
       significant effect on these rights. A private citizen may file an action for a public
       nuisance against an actor where the individual can show he suffered a type of harm
       different from that of the general public. . . .

               In general, even though a nuisance may exist, not all actors are liable for the
       damages stemming from the condition. A defendant is liable for a nuisance where (1)
       the defendant created the nuisance, (2) the defendant owned or controlled the land
       from which the nuisance arose, or (3) the defendant employed another person to do
       work from which the defendant knew a nuisance would likely arise.

Cloverleaf Car Co. v. Phillips Petroleum Co., 540 N.W.2d 297, 300-01 (Mich. Ct. App. 1995)

(citations omitted).
       The district court’s dismissal of the public nuisance claim against the school system was

proper because the school system is immune from tort liability. Mich. Comp. Laws § 691.1407(1);

see also Nelepa v. Plymouth-Canton Cmty. Sch. Dist., 525 N.W.2d 897, 901 (Mich. Ct. App. 1994).

(“[A] school district is a level of government of the type contemplated by the Legislature in the

statute regarding absolute governmental immunity.”)

       Similarly, school officials acting within the scope of their authority are immune from tort

liability provided their “conduct does not amount to gross negligence that is the proximate cause of

the injury or damage.” Mich. Comp. Laws § 691.1407(2)(c); see also Kendricks v. Rehfield, 716

N.W.2d 623, 625 (Mich. Ct. App. 2006) (“An employee of a governmental agency acting within the

scope of his or her authority is immune from tort liability unless the employee’s conduct amounts

to gross negligence that is the proximate cause of the injury.”). Nuisance is a tort that falls “within

the scope of statutory governmental immunity.” Pohutski v. City of Allen Park, 641 N.W.2d 219, 227

(Mich. 2002) (citation omitted).

       Establishing proximate cause is a high bar. The Michigan Supreme Court has made clear that,

under the immunity statute, “[t]he Legislature’s use of the definite article ‘the’ clearly evinces an

intent to focus on one cause. The phrase ‘the proximate cause’ is best understood as meaning the one

most immediate, efficient, and direct cause preceding an injury.” Robinson v. City of Detroit, 613

N.W.2d 307, 317 (Mich. 2000).

       The actions of the school officials do not reach this high bar. Even viewing the evidence in

the light most favorable to the plaintiffs, it does not justify a reasonable inference that the school

officials’ failure, when they broke up the right, to take some additional disciplinary or preventative

measure, constitutional such gross negligence as to be the proximate cause of the plaintiffs’ injuries.

Morton and the other shooters were the proximate cause of the plaintiffs’ injuries. Hence, the
defendant school officials are immune from tort liability under Michigan law and were properly

granted summary judgment on the public nuisance claim.



                                              III.


       The judgment of the district court is affirmed.
