                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 15-2942
                                  _____________

                              DAVID JANKOWSKI,
                                    Appellant

                                         v.

                             ROBERT LELLOCK;
                           LYNN MEYERS-JEFFREY;
                             RONALD ZANGARO
                               _____________

                On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                         District Court No. 2-13-cv-00194
               District Judge: The Honorable Terrence F. McVerry

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 May 19, 2016

         Before: SMITH, HARDIMAN, and SHWARTZ, Circuit Judges

                          (Opinion Filed: May 20, 2016)
                            _____________________

                                    OPINION
                             _____________________





 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Circuit Judge.

      Plaintiff David Jankowski alleges that Defendant Robert Lellock, a former

Arthur J. Rooney Middle School Police Officer, sexually abused Jankowski on

multiple occasions. The question in this appeal, however, is whether Jankowski

has alleged facts sufficient to make out a claim for relief against Defendants Lynn

Meyers-Jeffrey and Ronald Zangaro, the detention aide and the school principal,

respectively, at Rooney Middle School. Jankowski alleges that both individuals

knew or should have known that Lellock was pulling students out of class for one-

on-one meetings. He then concludes that both individuals knew or should have

known Lellock was abusing these students. Jankowski, however, has failed to

plead any facts supporting this inference. He has thus failed to make out a viable

cause of action against either Meyers-Jeffrey or Zangaro, despite having had three

opportunities to do so. We therefore hold that the District Court did not err in

dismissing the claims against both Meyers-Jeffrey and Zangaro and will affirm the

District Court’s judgment.

                                        I.

      Starting in the fall of 1998 and lasting until May 1999,1 Lellock, at the time

a School Police Officer employed by the Pittsburgh Public Schools, allegedly

abused up to twenty-two male students at Rooney Middle School. Jankowski was


                                         2
one of Lellock’s victims. Jankowski alleges that on multiple occasions during the

1998-1999 school year, Lellock removed him from Meyers-Jeffrey’s study

hall/detention classroom, took him to a supply closet, and sexually violated him.

        While criminal charges against Lellock also resulted, Jankowski brought this

lawsuit under 42 U.S.C. § 1983. Jankowski claims that Lellock violated his right

to bodily integrity, which is secured by the Due Process Clause of the Fourteenth

Amendment and enforced through § 1983. Jankowski’s original complaint named

as defendants the Pittsburgh Public Schools and eighteen individuals (including

Lellock, Meyers-Jeffrey, and Zangaro) who were connected in various ways with

Rooney Middle School. However, after his first two complaints were dismissed in

part for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6),

Jankowski amended his complaint to sue only three individuals: Lellock, Meyers-

Jeffrey, and Zangaro.

        Meyers-Jeffrey was a detention aide at Rooney Middle School for the 1998-

1999 school year and it was from her classroom that Jankowski alleges he was

pulled by Lellock on multiple occasions over the course of the school year.

Jankowski also alleges that Lellock pulled up to twenty-one other boys from

Meyers-Jeffrey’s classroom over the course of the year, explaining to her that he

needed to speak to the student or that the student was “in trouble again.” This was,


1
    The second amended complaint does not give specific dates or date ranges.
                                          3
according to Jankowski, a violation of district policy.

      Zangaro was the principal of Rooney Middle School, and Jankowski alleges

that he knew that Lellock was removing students from class for one-on-one

meetings, yet failed to do anything to stop it. In addition to alleging supervisory

liability, Jankowski alleges that Zangaro failed to properly train his staff on the

district’s policy prohibiting anyone from pulling students from classrooms.

      After considering Jankowski’s second amended complaint, however, the

District Court again dismissed the claims against everyone except Lellock,

explaining that Jankowski had not carried his burden of pleading facts sufficient to

suggest liability on the part of anyone besides Lellock. While this dismissal was

initially an interlocutory order because the claims against Lellock were still

pending, the District Court later granted Jankowski’s Rule 54(b) motion to convert

the order into a final decision, thus permitting immediate appeal. Accordingly, on

August 12, 2015, Jankowski appealed the District Court’s order holding that his

second amended complaint failed to plead a cause of action against Meyers-Jeffrey

and Zangaro.

                                         II.

      “We review a district court’s decision granting a motion to dismiss under a

plenary standard.” Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009).

A motion to dismiss pursuant to Rule 12(b)(6) challenges the legal sufficiency of a

                                          4
complaint, which may be dismissed for the “failure to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a motion to

dismiss, we take a three-step approach:

      First, the court must take note of the elements a plaintiff must plead to
      state a claim. Second, the court should identify allegations that,
      because they are no more than conclusions, are not entitled to the
      assumption of truth. Finally, where there are well-pleaded factual
      allegations, a court should assume their veracity and then determine
      whether they plausibly give rise to an entitlement for relief.

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations

and quotation marks omitted)). Regarding factual allegations, as the Supreme

Court made clear in Bell Atlantic Corp. v. Twombly, such allegations “must be

enough to raise a right to relief above the speculative level.” 550 U.S. 544, 555

(2007). We have further held that when performing this analysis, we “accept the

factual allegations contained in the Complaint as true, but we disregard rote recitals

of the elements of a cause of action, legal conclusions, and mere conclusory

statements.” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012)

(citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Twombly, 550 U.S. at 555-

57; Burtch, 662 F.3d at 220-21).

      Thus, in order for Jankowski’s complaint to survive a motion to dismiss, it

must allege facts that, if true, suggest a plausible entitlement to relief against

Meyers-Jeffrey and Zangaro. See Iqbal, 556 U.S. at 678 (“A claim has facial
                                          5
plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”).

      The District Court assumed for the purpose of deciding the motion to

dismiss that Jankowski made out a claim against Lellock for violation of his right

to bodily integrity. That said, it is clearly established that government officials are

liable only for their own unconstitutional conduct, and cannot “be held liable for

the unconstitutional conduct of their subordinates under a theory of respondeat

superior.” Bistrian v. Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting Iqbal, 556

U.S. at 676). We must, therefore, look at each defendant’s own actions as alleged

in the complaint.

      In this regard, Jankowski does not claim that either Meyers-Jeffrey or

Zangaro actively encouraged or participated in the illegal conduct of Lellock;

instead he attempts to show that both Meyers-Jeffrey and Zangaro knew or should

have known about Lellock’s actions and did nothing.            Section 1983 liability

attaches only if there is either a supervisor-subordinate relationship or a state law

duty to control the actions of the primary actor. C.H. ex rel. Z.H. v. Oliva, 226

F.3d 198, 201 (3d Cir. 2000) (“It is, of course, well established that a defendant in

a civil rights case cannot be held responsible for a constitutional violation which he

or she neither participated in nor approved.”); Robinson v. City of Pittsburgh, 120

F.3d 1286, 1294 (3d Cir. 1997), overruled on other grounds by Burlington N. &

                                          6
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (“[E]xcept perhaps in unusual

circumstances, a government official or employee who lacks supervisory authority

over the person who commits a constitutional tort cannot be held, based on mere

inaction, to have ‘acquiesced’ in the unconstitutional conduct.”).

      Once this supervisory relationship is established, we have articulated two

ways in which a supervisor may be liable for unconstitutional actions undertaken

by a subordinate. First, liability may attach if the supervisor, “‘with deliberate

indifference to the consequences, established and maintained a policy, practice or

custom which directly caused [the] constitutional harm.’” A.M. ex rel. J.M.K. v.

Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in

original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d

Cir. 1989)). This standard encompasses Jankowski’s failure to train claim, and

specifically requires (1) deliberate indifference and (2) direct causation. Black by

Black v. Indiana Area Sch. Dist., 985 F.2d 707, 712-13 (3d Cir. 1993).

      Second, at least prior to Iqbal, “a supervisor may be personally liable under

§ 1983 if he or she participated in violating the plaintiff’s rights, directed others to

violate them, or, as the person in charge, had knowledge of and acquiesced” in the

subordinate’s unconstitutional conduct.        A.M. ex rel. J.M.K., 372 F.3d at 586

(citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)). Or, put

another way,

                                           7
      [A] plaintiff asserting a failure to supervise claim must not only
      identify a specific supervisory practice that the defendant failed to
      employ, he or she must also allege both (1) contemporaneous
      knowledge of the offending incident or knowledge of a prior pattern
      of similar incidents, and (2) circumstances under which the
      supervisor’s inaction could be found to have communicated a message
      of approval.

Oliva, 226 F.3d at 202 (internal citations and quotation marks omitted). “[W]e

have refrained from answering the question of whether Iqbal eliminated—or at

least narrowed the scope of—supervisory liability because it was ultimately

unnecessary to do so in order to dispose of the appeal then before us.” Argueta v.

U.S. Imm. and Customs Enforcement, 643 F.3d 60, 70 (3d Cir. 2011). As in

Argueta, we “make the same choice here because we determine that [Jankowski]

failed to allege a plausible claim to relief on the basis of the supervisors’

‘knowledge and acquiescence’ or any other similar theory of liability.” Id.

                                        III.

      Applying this legal framework to the facts in Jankowski’s second amended

complaint convinces us that the District Court correctly dismissed the claims

against both Meyers-Jeffrey and Zangaro. First, Jankowski never alleges that

either Meyers-Jeffrey, who was merely an aide in the detention classroom, or




                                         8
Zangaro had any supervisory or actual authority2 over Lellock, thus immediately

casting serious doubt on both claims.         Second, Jankowski’s second amended

complaint, stripped of its conclusory allegations, pleads very few facts, none of

which transform his claims into anything more than pure speculation. This is so

because Jankowski relies primarily on the strength of an inference that we believe

is unreasonable. He argues that because Lellock (1) pulled approximately twenty-

two male students out of detention over the course of the school year to talk to

them individually and (2) did so in apparent violation of a district policy forbidding

the removal of students from a classroom, it was “obvious” that Lellock was

intending to have “private one-on-one encounters with those male students.” Thus,

he concludes that Meyers-Jeffrey and Zangaro knew or should have known that

Lellock was sexually abusing these students.

      We cannot agree with Jankowski that this final inference is reasonable in

light of the facts alleged. Assuming that either or both individuals did have actual


2
 While, presumably, a school principal has some authority over the school’s police
officer, Jankowski’s second amended complaint never alleges that Zangaro had
either supervisory or actual authority over Lellock. Indeed, the only reference to
Lellock’s employment status is that he was an employee of the Pittsburgh Public
Schools, perhaps casting doubt on Zangaro’s authority to control the actions of
Lellock if we infer that he was also supervised at the district level. See generally
Mercedes J. Howze, Pittsburgh Public Schools names new Chief of School Safety,
New            Pittsburgh         Courier          (June           5,        2015),
http://newpittsburghcourieronline.com/2015/06/05/pittsburgh-public-schools-
names-new-police-chief/.

                                          9
authority over Lellock, supervisory liability still requires a plaintiff to show that

the supervisor knew about and acquiesced in the subordinate’s unconstitutional

conduct. A.M. ex rel. J.M.K., 372 F.3d at 586. Jankowski has not met this

standard for either Meyers-Jeffrey or Zangaro. Mere knowledge that students are

being pulled from class to speak with a school police officer in violation of a

district policy does not lead one to reasonably conclude that those students are then

being sexually assaulted by that officer.     The facts alleged, therefore, do not

support the claim that either Meyers-Jeffrey or Zangaro actually knew about

Lellock’s conduct during the 1998-1999 school year. See Twombly, 550 U.S. at

555 (“Factual allegations must be enough to raise a right to relief above the

speculative level.”). Thus, we hold that both claims of supervisory liability were

properly dismissed by the District Court.

      Turning to Jankowski’s failure to train claim, we conclude that this

allegation fares no better. The entire claim is relegated to a single sentence in the

complaint, which simply states that Zangaro “failed to properly train the teachers at

the Arthur J. Rooney Middle School during the school year 1998 and 1999 school

year [sic] . . . regarding the School District policy that forbade school police from

removing children from classrooms for private, unsupervised encounters.” This is

merely a rote recitation of a cause of action coupled with a legal conclusion. City

of Wilkes-Barre, 700 F.3d at 679 (“[W]e disregard rote recitals of the elements of a

                                         10
cause of action, legal conclusions, and mere conclusory statements.”). It does not

contain any facts on which we can or should rely. We therefore conclude that this

claim was also properly dismissed by the District Court.3

                                        IV.

      For the reasons discussed above, we will affirm the District Court’s

judgment in favor of Meyers-Jeffrey and Zangaro.




3
  Indeed, even if Jankowski had shown a failure to train, he presents no facts
suggesting such a failure would have been anything more than mere negligence;
far short of the high “deliberate indifference” standard he also had to satisfy. See
Black by Black v. Indiana Area Sch. Dist., 985 F.2d 707, 713 (3d Cir. 1993).
                                        11
