     Case: 12-60515       Document: 00512072807         Page: 1     Date Filed: 12/04/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         December 4, 2012

                                     No. 12-60515                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



RUBY CAROL DIXON, a Minor, by and through Her Mother and Next
Friend, Paula Dixon; and PAULA DIXON, Individually,

                                                  Plaintiffs-Appellants
v.

ALCORN COUNTY SCHOOL DISTRICT; STACY D. SUGGS, in His Official
Capacity as Superintendent of Alcorn County Schools; VAN CARPENTER, in
His Official Capacity as Principal of Kossuth Elementary School; and
TERESA WILBANKS, in Her Official Capacity

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:10-CV-92


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       After minor child Ruby Carol Dixon (“Ruby Carol”) was physically
attacked by a mentally disabled classmate at school, her mother brought suit
against the school district and its representatives. She alleged that the school


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60515    Document: 00512072807       Page: 2   Date Filed: 12/04/2012



                                 No. 12-60515

deprived Ruby Carol of her substantive due process rights by failing to remove
the mentally disabled child from the classroom despite his history of troubling
and aggressive behavior. The district court granted summary judgment against
Ruby Carol and her mother and dismissed their claim. We AFFIRM.
                                       I.
      Ruby Carol was enrolled in the fourth grade at Kossuth Middle School
during the 2009–2010 school year. A second child, L.L., was enrolled at Kossuth
Middle School as a fourth grade special education student during that time.
Although L.L. was a special education student, he interacted with the normal
fourth grade class for part of each school day.
      L.L. was a troubled student with a documented history of emotional
outbursts and misbehavior. During the first half of the fourth grade school year,
L.L. was disciplined for multiple incidents of misconduct, including hitting his
teacher with his lunchbox, slamming the classroom door in another child’s face,
kicking a student in the leg, making threatening remarks, and otherwise
misbehaving. Though L.L. did not violently attack other children, he often
exhibited aggressive behavior, made disturbing remarks, and used violent
imagery.
      L.L.’s behavior problems were known to many school officials. Kim Hamm,
Supervisor of Curriculum and Instruction at the School District, and Van
Carpenter, Principal of Kossuth Elementary School, each opined that L.L. should
be taken out of the regular classroom and placed in a day treatment program.
L.L.’s teacher, Holly Seago, also documented her concerns that L.L. might injure
her or a student. Despite these concerns, Superintendent Stacy Suggs
determined that L.L. should remain in the regular classroom environment.
      Although L.L. did not focus his outbursts on any particular students, L.L.
directed his comments towards Ruby Carol on two occasions in February 2010.
On February 23, 2010, Ruby Carol was absent and L.L. stated to his entire class,

                                       2
    Case: 12-60515     Document: 00512072807      Page: 3   Date Filed: 12/04/2012



                                  No. 12-60515

“I am just happy Ruby Carol is not here.” On February 26, L.L. told Ruby Carol
to “Stop looking at me, you enemy!”
      L.L.’s misconduct reached a climax on March 4, 2010, when Ruby Carol
accidentally bumped into L.L. while waiting to sharpen her pencil. L.L.
immediately grabbed Ruby Carol, held her head against the wall, and proceeded
to rub a Clorox cleaning wipe into her eye. During this outburst, he told her that
she was a “fat little bitch” and that he was washing the “f**k” germs out of her
eyes. Ruby Carol received medical treatment for the injury to her eye.
      Ruby Carol’s mother filed suit against the school district, Superintendent
Suggs, Principal Carpenter, and special education instructor Teresa Wilbanks
(“Defendants”). Specifically, her complaint alleged that the school deprived her
and her daughter of substantive due process under 42 U.S.C. § 1983 by failing
to immediately remove L.L. from Ruby Carol’s classroom when the school
became aware of his violent propensities.
      The Defendants subsequently filed a motion for summary judgment, which
the district court denied, and a motion for reconsideration, which the district
court also denied. Following this Court’s recent decision in Doe v. Covington
County School District, 675 F.3d 849 (5th Cir. 2012) (en banc), the Defendants
filed a motion for relief from the district court’s order denying their previous
motions. Based on this recent authority, the district court found that the
plaintiffs could no longer state a viable substantive due process claim against
Defendants and granted the motion.
                                        II.
      We review an order granting a motion for summary judgment de novo.
Storebrand Ins. Co. U.K., Ltd. v. Emp’rs Ins. of Wausau, 139 F.3d 1052, 1055
(5th Cir. 1998). Summary judgment is warranted when the pleadings,
depositions, interrogatories, and admissions on file, together with the affidavits,



                                        3
     Case: 12-60515       Document: 00512072807          Page: 4     Date Filed: 12/04/2012



                                       No. 12-60515

if any, show that there is no genuine issue as to any material fact. FED. R. CIV.
P. 56; Celotex v. Catrett, 477 U.S. 317, 322 (1986).
                                             III.
       The lone issue presented by this appeal is whether this Court should adopt
the “state-created danger” theory of liability in the circumstances of the instant
case. Already adopted by several circuits,1 the state-created danger theory of
liability is derived from language in the Supreme Court’s decision in DeShaney
v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). The
Deshaney Court held that substantive due process did not impose a duty on state
actors to protect citizens from harm by private parties. Id. at 195–96. However,
the Court’s reasoning appeared to leave room for some form of liability:
       While the State may have been aware of the dangers that [the
       victim] faced in the free world, it played no part in their creation,
       nor did it do anything to render him any more vulnerable to them.
       . . . [The State] placed him in no worse position than that in which
       he would have been had it not acted at all.

Id. at 201.
       Though this Court has consistently refused to adopt the state-created
danger theory,2 we have stated the elements that such a cause of action would
require were we to recognize it. Specifically, a plaintiff would have to show (1)
that the environment created by the state actor is dangerous, (2) the state actor
must know it is dangerous (deliberate indifference), and (3) the state actor must
have used its authority to create an opportunity that would not otherwise have


       1
        See, e.g., Jackson v. Indian Prairie Sch. Dist. 204, 653 F.3d 647, 654 (7th Cir. 2011);
Lombardi v. Whitman, 485 F.3d 73, 80 (2d Cir. 2007); Kallstrom v. City of Columbus, 136 F.3d
1055, 1066–67 (6th Cir. 1998); Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir.1996); Carlton v.
Cleburne Cnty., 93 F.3d 505, 508 (8th Cir. 1996).
       2
         Doe, 675 F.3d at 865 (“We decline to use this en banc opportunity to adopt the
state-created danger theory in this case.”); see also Kovacic v. Villarreal, 628 F.3d 209, 214
(5th Cir. 2010).

                                              4
     Case: 12-60515       Document: 00512072807          Page: 5     Date Filed: 12/04/2012



                                       No. 12-60515

existed for the third party’s crime to occur. See Doe, 675 F.3d at 865.3 “Critically,
this court has explained that the ‘state-created danger theory is inapposite
without a known victim.’” Id. (quoting Rios v. City of Del Rio, Tex., 444 F.3d 417,
424 (5th Cir. 2006)).
       Recognizing that this Court has not yet adopted her proposed theory of
liability, Dixon argues that the egregious circumstances of this case present the
right scenario for the Court to do so now. However, as this Court has done
before, we need not determine the appropriateness of adopting the state-created
danger theory in our Circuit if the plaintiff’s allegations or evidence fail to
satisfy one of the theory’s elements as interpreted by our caselaw. See, e.g., id.
at 866; Piotrowski v. City of Houston, 51 F.3d 512, 517 (5th Cir. 1995).
       The starting point for our analysis must be our recent en banc decision in
Doe, where this Court declined to adopt the state-created danger theory in a very
similar context. 675 F.3d 849. In Doe, an elementary school permitted a nine-
year-old girl to be checked out of school six different times by a man to whom she
bore no relation and who did not have the requisite pre-approval of her parents.
Id. at 853. On each occasion, the man posed as one of her parents to check her
out of school, sexually molested her, and then returned her to school. Id. In
support of their state-created danger claim, the girl’s parents alleged that school

       3
        Descriptions of the state-created danger theory of liability often appear to identify
only two elements. However, the second element is then subdivided into three prongs, which
combine to subsume the original first element:

       [T]he state-created danger theory requires a plaintiff to show (1) the defendants
       used their authority to create a dangerous environment for the plaintiff and (2)
       that the defendants acted with deliberate indifference to the plight of the
       plaintiff. To establish deliberate indifference for purposes of state-created
       danger, the plaintiff must show [a] that the environment created by the state
       actors must be dangerous; [b] they must know it is dangerous; and [c] they must
       have used their authority to create an opportunity that would not otherwise
       have existed for the third party’s crime to occur.

Doe, 675 F.3d at 865 (citations omitted) (internal quotation marks omitted).

                                              5
    Case: 12-60515      Document: 00512072807       Page: 6    Date Filed: 12/04/2012



                                    No. 12-60515

officials received complaints and inquiries about the school’s check-out
procedures and had safety meetings and discussions concerning their check-out
policy and procedures. Id. at 865. The Court found, “Nevertheless, the
[plaintiff’s] allegations cannot make out a state-created danger claim, as they do
not demonstrate the existence of ‘an immediate danger facing a known victim.’”
Id. at 866 (emphasis added). Importantly, it is not enough to “allege that the
school [is] aware of some general deficiencies in [one of its] polic[ies].” Id. Rather,
the school must be aware of an immediate danger to a specific and identifiable
student. See id.
      This Court has applied the same “known victim” requirement to reject
state-created danger claims in several other cases. In Rios, the Court found that
a police officer could not be liable when an unsupervised prisoner commandeered
his police car, fled, and injured a third party with the vehicle. 444 F.3d at 419.
Rejecting the plaintiff’s claim, the Rios Court noted, “There is no allegation that
any alleged action . . . was taken by [the officer] with the purpose or intention of
causing injury to anyone, much less [the victim] whom it is not alleged [the
officer] in any way knew or even knew of.” Id. at 423. In Saenz v. Heldenfels
Bros., Inc., we again determined that no state-created danger claim had been
stated where police officers permitted a drunk truck operator to continue driving
down the highway. 183 F.3d 389, 390 (5th Cir. 1999). Although the driver
subsequently injured someone in a collision, we found that a state officer “cannot
offend due process by permitting an intoxicated driver to remain on the highway,
thereby increasing the risk of harm to unidentified and unidentifiable members
of the public.” Id. at 392; see also Morin v. Moore, 309 F.3d 316, 323 (5th Cir.
2002) (“[T]he allegations in this case do not show specific knowledge of a harm
to a known victim.”).
      Turning to the instant case, Dixon argues that Ruby Carol was a known
victim of L.L. As evidence of this assertion, she relies upon L.L.’s two

                                          6
     Case: 12-60515       Document: 00512072807         Page: 7     Date Filed: 12/04/2012



                                       No. 12-60515

statements, “I am just happy Ruby Carol is not here,” and “Stop looking at me,
you enemy!,” as well as the teacher’s documented fear of injury to her or her
students. However, we have been offered no evidence suggesting that L.L.’s
behavior was ever focused upon Ruby Carol such that she would have been the
“known victim” of an unprecedented assault. Sad as the facts of this case may
be, the record makes clear that Ruby Carol was merely one student among many
who faced a generalized risk resulting from the school’s attempt to integrate a
mentally disabled child into a normal school environment. As our cases
illustrate, the state-created danger theory requires a known victim, and the fact
that a school’s policy or procedure presents a risk of harm to students in general
is inadequate to satisfy this requirement.4 See Doe, 675 F.3d at 865–66. There
is therefore no need to determine whether this Court should adopt the state-
created danger theory of liability on the present facts.
                                             IV.
       For the reasons stated above, the order of the district court is AFFIRMED.




       4
         We therefore express no opinion on whether the circumstances of this case satisfy any
of the other elements of the state-created danger theory of liability.

                                              7
