                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2008

Phillips v. Allegheny
Precedential or Non-Precedential: Precedential

Docket No. 06-2869




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"Phillips v. Allegheny" (2008). 2008 Decisions. Paper 1503.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1503


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                          PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ___________

                   No. 06-2869
                   ___________

     JEANNE PHILLIPS, Administratrix of the
        Estate of Mark Phillips, deceased,

                              Appellant

                         v.

COUNTY OF ALLEGHENY; NORTHWEST REGIONAL
 COMMUNICATIONS; ALLEGHENY COUNTY 9-1-1,
f/k/a NORTHWEST REGIONAL COMMUNICATIONS;
   DANIEL NUSSBAUM; DANIELLE TUSH; BRIAN
 CRAIG; LEONARD DEUTSCH; RYAN GING; SUSAN
           ZURCHER; PHILLIP CESTRA

                   ___________

   On Appeal from the United States District Court
      for the Western District of Pennsylvania

                (D.C. No. 05-cv-1502)
   District Judge: The Honorable Arthur J. Schwab
                    ___________

             ARGUED JUNE 26, 2007
             BEFORE: FISHER, NYGAARD,
               and ROTH, Circuit Judges.


                  (Filed February 5, 2008)
                        ___________

Philip A. Ignelzi, Esq.(Argued)
Michael A. Murphy, Esq.
Ogg, Cordes, Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

      Counsel for Appellant

Scott G. Dunlop, Esq.
Stephen J. Poljak, Esq. (Argued)
Alan E. Johnson, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
600 Grant Street, 2900 U.S. Steel Tower
Pittsburgh, PA 15219

      Counsel for Appellees Northwest Regional
      Communications, Nussbaum, Tush, Craig, Deutsch,
      Ging, Zurcher, and Cestra


Wendy Kobee, Esq.
Michael H. Wojcik, Esq.
Office of Allegheny County Law Department
445 Fort Pitt Boulevard

                              2
300 Fort Pitt Commons Building
Pittsburgh, PA 15219

       Counsel for Appellees County of Allegheny and
       Allegheny County 911

                          ___________

                  OPINION OF THE COURT
                       ___________

NYGAARD, Circuit Judge.

         Jeanne Phillips (“Phillips”), individually and in her
capacity as administrator of the estate of her son, decedent Mark
Phillips, appeals the District Court’s dismissal of her claims
against various defendants for violations of 42 U.S.C. § 1983.
The District Court, in deciding a motion under FED.R.CIV.P.
12(b)(6), was required to accept as true all factual allegations in
the complaint and draw all inferences from the facts alleged in
the light most favorable to Phillips. Worldcom, Inc. v. Graphnet,
Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover, in the event
a complaint fails to state a claim, unless amendment would be
futile, the District Court must give a plaintiff the opportunity to
amend her complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d
Cir. 2000). Because the District Court did not follow these
dictates, we will reverse in part and remand.
                                 I.
         As is typical with state-created danger cases, the facts
here are inescapably tragic. Beginning in October of 2003,
Michael Michalski, who was employed by the Allegheny

                                3
County 911 Call Center as a dispatcher, used his position to
surreptitiously gain access to unauthorized information.
Specifically, Michalski ran multiple searches of the 911 Call
Center's computer network and databases in an attempt to locate
the whereabouts of his former girlfriend, Gretchen Ferderbar,
and her then-boyfriend, Mark Phillips. By October 19, 2003,
Daniel Nussbaum, who was Michalski's supervisor, became
aware of Michalski's actions and placed Michalski on a
one-week suspension, but allowed Michalski to remain on the
job for a week. The day before the suspension took effect,
Michalski again used the 911 Call Center's computer network
and databases without authorization to access personal
information regarding Mark Phillips. Michalski specifically
accessed Mark Phillips' motor vehicle and license plate
registrations in an effort to track and locate Mark Phillips'
whereabouts.

        During the evening hours of October 28, 2003, and the
early morning hours of October 29, 2003, while on suspension,
Michalski made numerous telephone calls to the 911 Call Center
and spoke with Danielle Tush and Brian Craig. During those
telephone calls, Michalski requested information that would
assist him in locating Mark Phillips. Tush and Craig assisted
Michalski, aware that they were accessing unauthorized
personal information that had no relationship to their jobs as
dispatchers for the 911 Call Center.

      Gretchen Ferderbar contacted Nussbaum to inform him
that Michalski had accessed the 911 Call Center's computer
system in his position as a dispatcher to obtain information
which enabled him to track and locate her and Mark Phillips at

                              4
Mark Phillips' residence. After confirming that Michalski had
improperly accessed information regarding Mark Phillips,
Nussbaum met with Michalski at the 911 Call Center and
confronted him about his repeated and unauthorized use of the
911 Call Center's computer system. Michalski admitted to
Nussbaum that he had used the 911 Call Center's computer
system to gain access to unauthorized information regarding
Mark Phillips, and Nussbaum terminated Michalski's
employment with the 911 Call Center.

       Recognizing Michalski's “volatile appearance” and
apparently concerned that Michalski might commit a violent act,
Nussbaum placed two telephone calls. Nussbaum left either a
voicemail message on Ferderbar's cellular telephone warning her
to be careful and to be on guard for Michalski or Nussbaum
warned her in person — the record is unclear. What is clear,
however, is that Nussbaum also contacted the McCandless
Township Police Department to notify them of Michalski's
volatile state. Nussbaum made no effort, however, to contact the
police departments of Shaler Township or the Borough of
Carnegie where Federbar and Phillips, respectively, lived.
Despite recognizing that Michalski had used the 911 Call
Center's computer system to track Mark Phillips, Nussbaum
made no effort to detain Michalski, to deter him from reaching
Mark Phillips or to warn Mark Phillips of Michalski’s
potentially violent behavior.
       Later that same day, Michalski contacted dispatchers at
the 911 Call Center, including Tush, Craig, Leonard Deutsch,
Ryan Ging, Susan Zurcher and Phillip Cestra, to explain the
circumstances of his termination. Michalski indicated that he
“had nothing left to live for” and that Ferderbar and Mark

                               5
Phillips were going to “pay for putting him in his present
situation.” Despite this contact by Michalski, none of the
dispatchers contacted either Ferderbar or Mark Phillips or the
police departments of the Township of Shaler or the Borough of
Carnegie. Later that afternoon, Michalski shot and killed Mark
Phillips with a handgun. Michalski also shot and killed
Ferderbar and her sister.

       Jeanne Phillips, as Administratrix of her son’s estate,
sued numerous defendants, including Allegheny County,
Allegheny County 911, 911 Supervisor Nussbaum and 911
Dispatchers Tush, Craig, Deutsch, Ging, Zurcher and Cestra,
alleging violations of Mark Phillips’ civil rights under 42 U.S.C.
§ 1983 and alleging, through pendant jurisdiction, a wrongful
death action, and a survivorship action. In response, Appellees
moved to dismiss Phillips’ claims pursuant to Federal Rule
12(b)(6) and the district judge granted the motion.1

       1.
          Rather than filing its own motion to dismiss, Allegheny
County filed a motion for stay of time to file a responsive
pleading pending resolution of the motion to dismiss. Phillips
did not oppose the motion to stay and the District Court granted
it. After consideration of the papers, the District Court granted
the motion to dismiss the complaint and in its final order lifted
the stay, granted the motion to dismiss in its entirety, and
entered judgment for all defendants. The District Court declined
to exercise supplemental jurisdiction over Plaintiff’s remaining
state law claims and transferred the case to the Court of
Common Pleas of Allegheny County. Appellee Allegheny
County 911 did not join in the motion to stay, and the District
                                                    (continued...)

                                6
                               II.

        We have jurisdiction pursuant to 28 U.S.C. § 1291. The
standard of review for a dismissal under FED.R.CIV.P. 12(b)(6)
is de novo. Omnipoint Communications Enters., L.P. v.
Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000). Because
this standard requires us to review the District Court’s order
anew and without any deference, we pause here to re-evaluate
our de novo standard of review in light of the Supreme Court’s
recent decision in Bell Atlantic Corp. v. Twombly, — U.S. —,
127 S. Ct. 1955 (2007).2

       1.
         (...continued)
Court apparently never required it to file a responsive pleading,
most likely because the District Court considered Allegheny
County 911 to be part of or coextensive with either Northwest
(which filed a motion to dismiss) or Allegheny County (which
filed a motion to stay). Although the District Court closed the
case by entering judgment for all defendants on all counts, the
Court did not have before it a motion to dismiss from the County
or Allegheny County 911. The parties on appeal do not mention
this issue, presumably because it makes no difference in light of
the fact that the Supreme Court’s decision in Monell v. Dep't of
Social Services, 436 U.S. 658 (1978) bars § 1983 suits against
municipalities based on respondeat superior and Phillips failed
to allege facts supporting an official pattern or practice claim
giving rise to constitutional injury.
       2.
         See In re Paoli R.R. Yard PCB Litigation, 221 F.3d
449, 461 (3d Cir. 2000) (“de novo means [that] . . . the court’s
                                                 (continued...)

                               7
       After oral argument, we asked the parties to brief the
Twombly decision’s impact on pleading standards generally and
on this appeal specifically. Few issues in civil procedure
jurisprudence are more significant than pleading standards,
which are the key that opens access to courts. In Twombly, the
Supreme Court held that the plaintiffs failed to state a claim
under § 1 of the Sherman Antitrust Act. The plaintiffs had
alleged that defendants had engaged in parallel conduct, but had
pleaded no set of facts making it plausible that such conduct was
the product of a conspiracy. In reaching this decision, the
Supreme Court rejected language that long had formed part of
the Rule 12(b)(6) standard, namely the statement in Conley v.
Gibson, 355 U.S. 41 (1957), that a complaint may not be
dismissed “unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.” Id. at 45-46.

        What makes Twombly’s impact on the Rule 12(b)(6)
standard initially so confusing is that it introduces a new
“plausibility” paradigm for evaluating the sufficiency of
complaints. At the same time, however, the Supreme Court
never said that it intended a drastic change in the law, and
indeed strove to convey the opposite impression; even in
rejecting Conley’s “no set of facts” language, the Court does not
appear to have believed that it was really changing the Rule 8 or
Rule 12(b)(6) framework.        Therefore, our review of how
Twombly altered review of Rule 12(b)(6) cases must begin by

       2.
        (...continued)
inquiry is not limited to or constricted by the record . . . nor is
any deference due the . . . conclusions [under review]”).

                                8
recognizing the § 1 antitrust context in which it was decided.
See e.g., Twombly, 127 S. Ct. at 1963 (“We granted certiorari to
address the proper standard for pleading an antitrust conspiracy
through allegations of parallel conduct.”). Outside the § 1
antitrust context, however, the critical question is whether and
to what extent the Supreme Court altered the general Rule
12(b)(6) standard.

       Before Twombly, that standard had been well-established
for decades. Our typical statement of the standard has instructed
that:

       The applicable inquiry under Rule 12(b)(6) is
       well-settled. Courts are required to accept all
       well-pleaded allegations in the complaint as true
       and to draw all reasonable inferences in favor of
       the non-moving party. The inquiry is not whether
       plaintiffs will ultimately prevail in a trial on the
       merits, but whether they should be afforded an
       opportunity to offer evidence in support of their
       claims. Dismissal under Rule 12(b)(6) is not
       appropriate unless it appears beyond doubt that
       plaintiff can prove no set of facts in support of his
       claim which would entitle him to relief.

In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d 198, 215-
16 (3d Cir. 2002) (internal citations omitted). Another common
formulation of the standard, which does not include the “no set
of facts” language, reads:




                                9
       In evaluating the propriety of the dismissal, we
       accept all factual allegations as true, construe the
       complaint in the light most favorable to the
       plaintiff, and determine whether, under any
       reasonable reading of the complaint, the plaintiff
       may be entitled to relief.

Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002).

         In determining how Twombly has changed this standard,
we start with what Twombly expressly leaves intact. The
Supreme Court reaffirmed that FED.R.CIV.P. 8 “‘requires only
a short and plain statement of the claim showing that the pleader
is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests,’” and
that this standard does not require “detailed factual allegations.”
Twombly, 127 S. Ct. at 1964 (quoting Conley, 355 U.S. at 47).
The Supreme Court also reaffirmed that, on a Rule 12(b)(6)
motion, the facts alleged must be taken as true and a complaint
may not be dismissed merely because it appears unlikely that the
plaintiff can prove those facts or will ultimately prevail on the
merits. See id. at 1964-65, 1969 n.8. The Supreme Court did
not address the point about drawing reasonable inferences in
favor of the plaintiff, but we do not read its decision to
undermine that principle.
         We find two new concepts in Twombly. First, in its
general discussion of Rules 8 and 12(b)(6), the Supreme Court
used certain language that it does not appear to have used
before. The Court explained that “[w]hile a complaint attacked
by a Rule 12(b)(6) motion to dismiss does not need detailed

                                 10
factual allegations, a plaintiff’s [Rule 8] obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 127 S. Ct.
at 1964-65 (alteration in original) (internal citations omitted).
The Court explained that Rule 8 “requires a ‘showing,’ rather
than a blanket assertion, of entitlement to relief.” Id. at 1965 n.3.
Later, the Court referred to “the threshold requirement of Rule
8(a)(2) that the ‘plain statement’ possess enough heft to ‘sho[w]
that the pleader is entitled to relief.’” Id. at 1966. The Court
further explained that a complaint’s “[f]actual allegations must
be enough to raise a right to relief above the speculative level.”
Id. at 1965 & n.3.

        Second, the Supreme Court disavowed certain language
that it had used many times before – the “no set of facts”
language from Conley. See id. at 1968. It is clear that the “no
set of facts” language may no longer be used as part of the Rule
12(b)(6) standard. As the Court instructed, “[t]his phrase is best
forgotten as an incomplete, negative gloss on an accepted
pleading standard: once a claim has been stated adequately, it
may be supported by showing any set of facts consistent with
the allegations in the complaint.” Twombly, 127 S. Ct. at 1969.
We find that these two aspects of the decision are intended to
apply to the Rule 12(b)(6) standard in general. See Iqbal v.
Hasty, 409 F.3d 143, 157 n.7 (2d Cir. 2007) (“[I]t would be
cavalier to believe that the Court’s rejection of the ‘no set of
facts’ language from Conley . . . applies only to section 1
antitrust claims.”).

                                 A.

                                 11
        While the Supreme Court’s emphasis on Rule 8’s
requirement of a “showing” is new, the Court also expressly
reaffirmed that Rule 8 requires only a short and plain statement
of the claim and its grounds. Twombly, 127 S. Ct. at 1964, 1965
n.3 (citing Conley, 355 U.S. at 47). Even the dissent in
Twombly did not believe that the requirement of a Rule 8
“showing,” by itself, had any other meaning. See Twombly, 127
S. Ct. at 1979 n.6 (Stevens, J., dissenting) (“The majority is
correct to say that what the Federal Rules require is a ‘showing’
of entitlement to relief. Whether and to what extent that
‘showing’ requires allegations of fact will depend on the
particulars of the claim.”). However, the Twombly decision
focuses our attention on the “context” of the required short,
plain statement. Context matters in notice pleading. Fair notice
under Rule 8(a)(2) depends on the type of case — some
complaints will require at least some factual allegations to make
out a “showing that the pleader is entitled to relief, in order to
give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Twombly, 127 S.Ct. at 1964.
Indeed, taking Twombly and the Court’s contemporaneous
opinion in Erickson v. Pardus, 127 S. Ct. 2197 (2007),
together, we understand the Court to instruct that a situation may
arise where, at some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the type of
notice of claim which is contemplated by Rule 8. See Airborne
Beepers & Video, Inc., v. AT&T Mobility L.L.C., 499 F.3d 663,
667 (7th Cir. 2007). Put another way, in light of Twombly, Rule
8(a)(2) requires a “showing” rather than a blanket assertion of
an entitlement to relief. We caution that without some factual
allegation in the complaint, a claimant cannot satisfy the
requirement that he or she provide not only “fair notice,” but

                                12
also the “grounds” on which the claim rests. See Twombly, 127
S.Ct. at 1965 n.3.

                               B.

       The second important concept we take from the Twombly
opinion is the rejection of Conley’s “no set of facts” language.
The Conley language was problematic because, for example, it
could be viewed as requiring judges to speculate about
undisclosed facts. “This famous observation,” the Court held,
“has earned its retirement. The [‘no set of facts'] phrase [in
Conley] is best forgotten as an incomplete, negative gloss on an
accepted pleading standard: Once a claim has been stated
adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” Twombly , 127
S. Ct at 1969 n.8. After Twombly, it is no longer sufficient to
allege mere elements of a cause of action; instead “a complaint
must allege facts suggestive of [the proscribed] conduct.” Id.
The Supreme Court appears to have rejected a “hyper-literal”
understanding of Conley’s “no set of facts” language. As the
Supreme Court explained,

       [t]his “no set of facts” language can be read in
       isolation as saying that any statement revealing
       the theory of the claim will suffice unless its
       factual impossibility may be shown from the face
       of the pleadings. . . . On such a focused and
       literal reading of Conley’s no set of facts, a
       wholly conclusory statement of claim would
       survive a motion to dismiss whenever the
       pleading left open the possibility that a plaintiff

                               13
       might later establish some set of [undisclosed]
       facts to support recovery.

Twombly, 127 S. Ct. at 1968 (alteration in original). See also
Geoffrey C. Hazard, From Whom No Secrets Are Hid, 76 Tex.
L. Rev. 1665, 1685 (1998) (explaining that “literal compliance”
with Conley “could consist simply of giving the names of the
plaintiff and the defendant, and asking for judgment”) (cited for
related proposition in Twombly, 127 S. Ct. at 1969). We have
already recognized principles that preclude the hyper-literal
reading of Conley’s language rejected in Twombly.3

         In rejecting the Conley language, the Supreme Court was
careful to base its analysis in pre-existing principles. See id. at
1968-69 & n.8. The Court emphasized throughout its opinion
that it was neither demanding a heightened pleading of specifics
nor imposing a probability requirement. See id. at 1964, 1965,
1973 n.14, 1974. Indeed, the Court cited Twombly just days
later as authority for traditional Rule 8 and 12(b)(6) principles.
See Erickson, 127 S. Ct. at 2200.

      Thus, under our reading, the notice pleading standard of
Rule 8(a)(2) remains intact, and courts may generally state and

       3.
          Recent cases in which we recited the Conley language
but did not apply it in the hyper-literal sense which Twombly
rejects include (in addition to those cited above), Leuthner v.
Blue Cross and Blue Shield of Ne. Pa., 454 F.3d 120, 129-131
(3d Cir. 2006) (compare majority opinion and dissent), Pryor,
288 F.3d at 564-65, and Levy v. Sterling Holding Co., 314 F.3d
106, 119 (3d Cir. 2002).

                                14
apply the Rule 12(b)(6) standard, attentive to context and an
showing that “the pleader is entitled to relief, in order to give the
defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Twombly, 127 S.Ct. at 1964. It remains an
acceptable statement of the standard, for example, that courts
“accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may
be entitled to relief.” Pinker, 292 F.3d at 374 n.7. See also
Twombly, 127 S. Ct. at 1969 n.8 (citing as consistent with its
rejection of the “no set of facts” language the statement that “if,
in view of what is alleged, it can reasonably be conceived that
the plaintiffs . . . could, upon a trial, establish a case which
would entitle them to . . . relief, the motion to dismiss should not
have been granted”) (citation omitted).

                                 C.

       The more difficult question raised by Twombly is whether
the Supreme Court imposed a new “plausibility” requirement at
the pleading stage that materially alters the notice pleading
regime. See id. at 1988 (Stevens, J., dissenting) (“Whether the
Court’s actions will benefit only defendants in antitrust treble-
damages cases, or whether its test for the sufficiency of a
complaint will inure to the benefit of all civil defendants, is a
question that the future will answer.”). The answer to this
question is difficult to divine. Numerous references to
“plausibility” in Twombly seem to counsel reliance on the
concept as a standard for notice pleading. The Court explained
that a plaintiff must “nudge [his or her] claims across the line
from conceivable to plausible” in order to survive a motion to

                                 15
dismiss. 127 S.Ct. at 1974. Relying on this, the Court of Appeals
for the Tenth Circuit has held that

       the mere metaphysical possibility that some
       plaintiff could prove some set of facts in support
       of the pleaded claims is insufficient; the
       complaint must give the court reason to believe
       that this plaintiff has a reasonable likelihood of
       mustering factual support for these claims.

Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177

(10th Cir. 2007). Yet, the Twombly decision repeatedly
indicated that the Court was not adopting or applying a
“heightened pleading standard.” 127 S.Ct. at 1974 (“[W]e do
not require heightened fact pleading of specifics, but only
enough facts to state a claim to relief that is plausible on its
face.”). We are not alone in finding the opinion confusing. See
e.g. Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (“These
conflicting signals create some uncertainty as to the intended
scope of the Court's decision.”).

        The issues raised by Twombly are not easily resolved, and
likely will be a source of controversy for years to come.
Therefore, we decline at this point to read Twombly so narrowly
as to limit its holding on plausibility to the antitrust context.
Reading Twombly to impose a “plausibility” requirement outside
the § 1 context, however, leaves us with the question of what it
might mean. “Plausibility” is related to the requirement of a
Rule 8 “showing.” In its general discussion, the Supreme Court
explained that the concept of a “showing” requires only notice

                               16
of a claim and its grounds, and distinguished such a showing
from “a pleader’s ‘bare averment that he wants relief and is
entitled to it.’” Twombly, 127 S. Ct. at 1965 n.3. While Rule
12(b)(6) does not permit dismissal of a well-pleaded complaint
simply because “it strikes a savvy judge that actual proof of
those facts is improbable,” the “[f]actual allegations must be
enough to raise a right to relief above the speculative level.” Id
at 1965.

        The Supreme Court's Twombly formulation of the
pleading standard can be summed up thus: “stating . . . a claim
requires a complaint with enough factual matter (taken as true)
to suggest” the required element. Id. This “does not impose a
probability requirement at the pleading stage,” but instead
“simply calls for enough facts to raise a reasonable expectation
that discovery will reveal evidence of” the necessary element.
Id.

                               D.

       As Professor Edward H. Cooper has pointed out, all of
the foregoing discussion can be reduced to this proposition:
Rule 8(a)(2) has it right. See Edward H. Cooper, Notice
Pleading: The Agenda After Twombly, 5 (January 2008)
(unpublished manuscript, on file with the Administrative Office
of the United States Courts, Rules Committee Support Office),
available at www.uscourts.gov/rules/Agenda%20books/st2008-
01.pdf. This rule requires not merely a short and plain
statement, but instead mandates a statement “showing that the
pleader is entitled to relief.” That is to say, there must be some
showing sufficient to justify moving the case beyond the

                               17
pleadings to the next stage of litigation. The complaint at issue
in this case clearly satisfies this pleading standard, making a
sufficient showing of enough factual matter (taken as true) to
suggest the required elements of Phillips’ claims.

                                III.

        Under Section 1983, a plaintiff must plead a deprivation
of a constitutional right and that the constitutional deprivation
was caused by a person acting under the color of state law.
Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Phillips
alleges a deprivation of her son’s right to life, liberty and bodily
integrity under the Fourteenth Amendment to the Constitution.
Individuals have a constitutional liberty interest in personal
bodily integrity that is protected by the Due Process Clause of
the Fourteenth Amendment. D.R. v. Middle Bucks Area
Vocational Technical School, 972 F.2d 1364, 1368 (3d Cir.
1992) (citing Ingraham v. Wright, 430 U.S. 651, 672-74 (1977)).

       However, the Due Process Clause does not impose an
affirmative obligation on the state to protect its citizens. See
DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S.
189, 195-96 (1989). The state-created danger theory operates as
an exception to that general rule and requires plaintiffs to meet
a four-part test: (1) the harm ultimately caused to the plaintiff
was foreseeable and fairly direct; (2) the state-actor acted in
willful disregard for the plaintiff’s safety; (3) there was some
relationship between the state and the plaintiff; and (4) the state-
actor used his authority to create an opportunity for danger that




                                18
otherwise would not have existed.4 Bright v. Westmoreland
County, 443 F.3d 276, 281 (3d Cir.2006) (quotations and
footnotes omitted); see also Rivas v. City of Passaic, 365 F.3d
181, 194 (3d Cir. 2004). Here, the District Court dismissed
Phillips’ complaint under a Rule 12(b)(6) motion, based upon
her failure to adequately plead the first, second and fourth
elements of the test — that the harm was foreseeable, that the
state actor’s behavior “shocked the conscience,” and that the
defendant’s conduct rendered Mark Phillips more vulnerable to
danger. See Bright, 443 F.3d at 281; Rivas v. City of Passaic,
365 F.3d 181, 194 (3d Cir. 2004). Because the District Court
erred in its analysis of several elements, we will discuss each in
turn.
                                 A.

        We begin with the fourth element, the requirement of an
affirmative act, because our conclusion obviates the need to
analyze the other three elements with respect to the claim
against Nussbaum. State actors must use their authority to
create an opportunity that otherwise would not have existed for
the third-party’s crime to occur. Kniepp, 95 F.3d at 1208. In
Bright, we stressed that under the fourth element of a state-
created danger claim,




       4.
          Neither party addresses whether Nussbaum, Tush and
Craig are indeed state-actors. The complaint alleges that these
defendants were both employees of the Northwest Corporation
and Allegheny County, and accepting this allegation as true, we
will treat them as state-actors for purposes of this appeal.

                               19
       [l]iability . . . is predicated upon the states’
       affirmative acts which work to the plaintiff’s
       detriment in terms of exposure to danger. It is the
       misuse of state authority, rather than a failure to
       use it, that can violate the Due Process Clause.

443 F.3d at 282 (emphasis added) (quoting D.R. by LR., 972
F.2d at 1374). The line between action and inaction may not
always be clear. However, we have never found a state-created
danger claim to be meritorious without an allegation and
subsequent showing that state authority was affirmatively
exercised in some fashion.

       The allegations in the complaint against defendant
Nussbaum do not sufficiently allege that he acted
“affirmatively.” Specifically, Phillips alleges that Nussbaum
misused his authority by notifying the wrong authorities of the
dangers Michalski posed to Mark Phillips. Also, Phillips alleges
that Nussbaum misused his authority by deferring Michalski’s
employment suspension, with full knowledge that Michalski
was using the 911 Call Center’s computers to improperly access
confidential information about Mark Phillips — information
which he used to determine Mark Phillips’ whereabouts, and to
track his movements. This misuse of Nussbaum’s authority,
Phillips alleges, worked to Mark Phillips’ detriment by exposing
him to a continuing danger, and by allowing Michalski to harm
Mark Phillips. Phillips’ difficulty, however, is that these
allegations, at their core, are omissions, not commissions —
inactions rather than actions. To be sure, it has been sufficiently
alleged that Nussbaum’s performance worked to Mark Phillips’



                                20
detriment in terms of exposure to danger. But, that is only a
portion of our test.

       Our jurisprudence requires that Phillips allege an
affirmative action, rather than inaction or omission. Bright, 443
F.3d at 282 (citing D.R. v. Middle Bucks Area Vocational Tech.
Sch., 972 F.2d 1364, 1374 (3d Cir.1992) (en banc)). Phillips’
complaint does not make such an allegation against Nussbaum
and, hence, no state- created danger claim has been sufficiently
pleaded.

        Nonetheless, the District Judge erred when he dismissed
the complaint without offering Phillips the opportunity to amend
her complaint. It does not matter whether or not a plaintiff seeks
leave to amend. We have instructed that if 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. Grayson v. Mayview State Hosp., 293 F.3d 103, 108
(3d Cir.2002) (citing Shane v. Fauver, 213 F.3d 113, 116 (3d
Cir.2000)). In Shane, we held that when dismissing for a failure
to state a claim:

       [W]e suggest that district judges expressly state,
       where appropriate, that the plaintiff has leave to
       amend within a specified period of time, and that
       application for dismissal of the action may be
       made if a timely amendment is not forthcoming
       within that time. If the plaintiff does not desire to
       amend, he may file an appropriate notice with the
       district court asserting his intent to stand on the



                                21
       complaint, at which time an order to dismiss the
       action would be appropriate.

Id. at 116 (quoting Borelli v. City of Reading, 532 F.2d 950, 951
n. 1 (3d Cir.1976). Because Phillips was not given such an
opportunity, we will remand to allow her to decide whether to
stand on her complaint or attempt an amendment so as to
properly allege an affirmative act by defendant Nussbaum.

       Turning to defendants Tush and Craig, we find that the
complaint adequately alleges they acted affirmatively by
providing Michalski with confidential 911 computer information
about Mark Phillips that permitted Michalski to harm him. This
allegation satisfies this element of our state-created danger
analysis.

       However, pleading an affirmative act by a state actor is
not enough: the complaint must also plead a direct causal
relationship between the affirmative act and plaintiff’s harm.
Kaucher, 455 F.3d at 432. The direct causal connection
between the affirmative actions of Tush and Craig (actively
providing Michalski with requested confidential information
about Phillips) and the ultimate harm to Mark Phillips is well
pleaded. The complaint alleges that after Tush and Craig
provided Michalski with confidential information, Michalski
used that information to hunt down and kill Mark Phillips.

       In sum, under this element, Phillips has sufficiently
alleged that Tush and Craig undertook affirmative actions which
worked to Mark Phillips’ detriment by exposing him to danger



                               22
and that there is a direct causal relationship between their harm
and the defendants’ actions.

       We divert our discussion here to rectify an incorrect
holding by the District Court on this point. As to this fourth
element of our state-created danger analysis, the District Court
determined that Phillips had failed to allege that defendants
Tush and Craig “rendered Mark Phillips more vulnerable to
danger.” Specifically, the District Court noted that the
complaint fails to allege where the shooting took place, and
reasoned that if the shootings did not occur at Mark Phillips’
residence, the unauthorized information provided by Tush and
Craig did not render him vulnerable to danger. This was simply
wrong. Where Mark Phillips was killed is not dispositive. At
this preliminary pleading stage, it is reasonable to infer that
Michalski could have gained relevant information at Mark
Phillips’ house as to his whereabouts, which could have directly
assisted Michalski in stalking and killing him.

        Such an unduly crabbed reading of the complaint denies
Phillips the inferences to which her complaint is entitled. Based
on the allegations in Phillips’ complaint and reasonable
inferences drawn from those allegations, Phillips may well be
able to prove facts that would satisfy the four elements of the
state-created danger analysis with respect to Tush and Craig.
Therefore, Phillips has alleged the deprivation of an actual
constitutional right, the substantive due process right to life and
liberty under the Fourteenth Amendment and we will reverse the
District Court’s contrary determination.

                                B.

                                23
        To properly allege a state-created danger claim, a
plaintiff must additionally plead that the harm ultimately caused
was a foreseeable and a fairly direct result of the state's actions.
Morse v. Lower Merion School Dist., 132 F.3d 902, 908 (3d Cir.
1997). As to foreseeability, the District Court initially
determined that since there were “no allegations in the
complaint that Michalski had a history of violence or, if he did,
that any of the defendants were aware of this history of
violence,” the harm caused by Michalski was not foreseeable.
We have never held that to establish foreseeability, a plaintiff
must allege that the person who caused the harm had a “history
of violence.” Indeed, these types of cases often come from
unexpected or impulsive actions which ultimately cause serious
harm. For example, in Kneipp v. Tedder, 95 F.3d 1199 (3d Cir.
1996), it was alleged that when a police officer left an
intoxicated woman outside alone late at night, ordinary common
sense and experience (in this instance attributed to the officer)
sufficiently informed the officer of the forseeability of harm to
the woman. This information was sufficient to put him on notice
that leaving the woman significantly enhanced the risk of harm
to her. We concluded that the harm incurred by the woman in
Kneipp was foreseeable. Id. at 1208.

        Also, in Rivas, supra., it was alleged that because the
state actors were emergency medical technicians, their expertise
equipped them with concrete information that a seizure victim
should not be restrained. The information that they had was
sufficient to put them on notice of the harm that would result if
they failed to tell the police officers who arrived on the scene to
assist the emergency medical technicians with the seizure
victim. We concluded that, in the context of a state-created

                                24
danger claim, the harm to the seizure victim was foreseeable.
365 F.3d at 194.

        Conversely, in Morse, there was no allegation that the
school district had sufficiently concrete information about the
risk of violence presented by the perpetrator or other trespassers
on school property to put the school district on notice of the
harm that might result from a propped-open door. Therefore,
when the school district employees, contrary to their own
regulations, unlocked the door for the contractors to work, and
the perpetrator of the violent incident entered through that open
door, we held that the school district lacked sufficiently concrete
information to consider its action a foreseeable cause of the
harm to the teacher who was shot. As we explained, the harm
was “too attenuated” because the only notice to the school
district that the harm might occur was that the person who
ultimately shot the teacher had been loitering in the hallways the
week before the killing. Morse, 132 F.3d at 908-09. Knowledge
of someone loitering, in and of itself, did not provide defendants
with notice of a risk of violence. To adequately plead
foreseeability then, we require a plaintiff to allege an awareness
on the part of the state actors that rises to level of actual
knowledge or an awareness of risk that is sufficiently concrete
to put the actors on notice of the harm. Turning to the complaint
here, such an awareness was clearly alleged as to Tush and
Craig.
        Tush and Craig were dispatchers at the Allegheny County
911 Call Center. Starting at paragraph 23, Phillips’ complaint
adequately establishes that Tush and Craig were actually aware
based on concrete information of the risk of harm. First,
paragraph 23 establishes that after being suspended from his job,

                                25
Michalski called the 911 Call Center and spoke with Tush and
Craig.     Paragraph 24 alleges that Michalski requested
information that would assist Michalski in locating Phillips. In
paragraph 26, Phillips alleges that Tush and Craig assisted
Michalski. The complaint additionally alleges (paragraph 27)
that Tush and Craig were aware that the relationship between
Ferderbar and Michalski had recently ended and that Michalski
was in a distraught mental state as a result.5

       At paragraph 40, the complaint alleges that Michalski
again contacted the 911 Call Center and spoke with Tush and
Craig, among others. During this conversation, Michalski
allegedly indicated that he “had nothing left to live for” and that
Ferderbar and Mark Phillips “were going to pay for putting him
in his present situation.” We view this allegation as putting
Tush and Craig on notice that their actions in giving Michalski
the unauthorized information about Mark Phillips significantly
enhanced the risk of harm to him. The alleged statement by
Michalski also made Tush and Craig actually aware of the risk
to Mark Phillips. Therefore, the complaint adequately alleges
foreseeability as to these two defendants and the District Court’s
determination to the contrary will be reversed.


       5.
           At paragraph 27, the complaint alleges that
“[d]efendants were aware that the relationship between
Ferderbar and Michalski had recently ended and that Michalski
was distraught over this.” While this paragraph does not
specifically aver that Tush and Craig were aware of this, they
certainly are “defendants” in this case and the generic use of that
term includes them.

                                26
       The District Court noted that the only individuals who
were alleged to have accessed Mark Phillips’ personal
information on the 911 computers were Tush and Craig.
Therefore, the Court also dismissed the state-created danger
counts against all other remaining defendants.

       The gist of the allegations against the remaining
individual defendants (Deutsch, Ging, Zurcher and Cestra) are
found in paragraphs 40 and 41 of the complaint. Paragraph 40
alleges that Michalski contacted individual defendants Deutsch,
Ging, Zurcher and Cestra and that Michalski explained the
circumstances of his dismissal and also related that he “had
nothing left to live for and that Ferderbar and Mark Phillips
were going to pay for putting him in his present situation.”
Paragraph 41 alleges that the aforementioned defendants “made
no effort to contact either Ferderbar, Mark Phillips or the police
departments . . . .” These two paragraphs contain the only
allegations that pertain to the remaining individual defendants
specifically. Not only do these allegations fail to allege any
affirmative actions, we further conclude that foreseeability was
also not alleged against these remaining defendants.

        The complaint also fails against these defendants because
it has not been alleged that any actions on their part enhanced
the risk of that harm. As the District Court indicated, these
defendants were not accused of the actions attributed to
defendants Tush and Craig or to defendant Nussbaum. No
alleged actions of these remaining defendants could be viewed
as enhancing the risk of harm to Mark Phillips and for that
reason, “foreseeability” was not properly alleged here.



                               27
       Once the foreseeability element of the state-created
danger test has been determined, the complaint must also allege
that the attack or harm is a “fairly direct” result of the
defendant’s acts. Such “directness” has been adequately
pleaded against defendants Tush and Craig. Although this
inquiry is unavoidably fact specific for each individual case, a
distinction exists between harm that occurs to an identifiable or
discrete individual under the circumstances and harm that occurs
to a “random” individual with no connection to the harm-
causing party. See Morse, 132 F.3d at 909 (to satisfy the first
element “the harm visited on the plaintiffs [must be] more
foreseeable than the random attack.”). In Estate of Smith v.
Marasco, 318 F.3d 497 (3d Cir. 2003), for example, we reversed
the District Court’s finding that the harm caused to the plaintiff
was not foreseeable because it was not fairly direct. In so doing,
we concluded that the fact that some of the police officers were
aware of Smith’s mental and medical conditions combined with
the obviously stressful position they placed him in created the
foreseeable possibility that Smith could be injured or killed,
especially with the knowledge that he was without his
medication. See Smith, 318 F.3d at 507.

       In Morse, however, we held as a matter of law, that
defendants could not have foreseen that allowing construction
workers to use an unlocked back door could also permit a
mentally disturbed individual to enter and cause harm to an
individual in the school. See Morse 132 F.3d at 908. Put
another way, the harm was not “fairly direct.”

      Here, the harm caused to Phillips was a fairly direct result
of Tush and Craig’s actions. First, unlike in Morse, Mark

                               28
Phillips was not a random individual who “happened” to be in
the path of danger. Rather, Mark Phillips was the new boyfriend
of Michalski’s former girlfriend. The complaint alleges that
Michalski knew that Mark Phillips was Ferderbar’s new
boyfriend. The complaint also alleges that Tush and Craig
knew that Michalski was distraught and that he had threatened
to make Mark Phillips “pay.” We conclude that this sufficiently
pleads that the attack and murder of Mark Phillips was a “fairly
direct” result of Tush and Craig’s activities. Far from being
unrelated to an intervening third party, for example, Mark
Phillips was an individual directly affected by these defendants’
decisions. It is reasonable to infer from the complaint that
Michalski used the time, access and information given to him by
the defendants to plan an assault on Mark Phillips and
Ferderbar.

                               C.

       Next, we turn to the question of whether Phillips has
properly alleged that Tush and Craig acted with a degree of
culpability that “shocks the conscience.” Bright, 443 F.3d at
281. This determination depends largely on the circumstances
of the case.

        Our most recent discussion of the culpability element of
the state-created danger test can be found in Sanford v. Stiles,
456 F.3d 298 (3d Cir. 2006), an opinion issued four months after
our decision in Bright. In Sanford, the plaintiff was the mother
of a 16-year-old boy who committed suicide a short time after
he had spoken with a high school guidance counselor who had
inquired as to the boy's welfare and whether he had any plans to

                               29
harm himself. Sanford, 456 F.3d at 301. The boy, Michael
Sanford, had sent a note to a former girlfriend in which he said
"I've heard 3 different stories about you & Ryan. The one I
heard almost made me want to kill myself." Id. at 299. The
former girlfriend went to a guidance counselor with the note,
expressing concern for Michael, as well as indicating that she
wanted him to stop "bugging" her. Id. After reviewing the note,
a guidance counselor, Pamela Stiles, called Michael into her
office and had a discussion with him to explore whether he was
upset. Id. Stiles expressly asked Michael if he had any plans to
harm himself, to which he responded "definitely not." Id.
Despite giving this answer, about one week after this meeting,
Michael killed himself.

        Sanford then filed a claim against Stiles and the school
district in which she alleged that the defendants were liable for
Michael's death under a state-created danger theory. Id. 301. In
affirming the district court's summary judgment in favor of the
defendants, the Sanford court concluded that Sanford had not
established that Stiles acted with the requisite degree of
culpability to sustain a claim grounded on a state-created danger
theory. In so concluding, we held that there is a continuum
upon which the degree of culpability required to establish such
a claim must be measured, relating to the circumstances of each
case.

       The time in which the government actors had to respond
to an incident is of particular significance. For example, in
Sanford, we stated that "[t]he level of culpability required to
shock the conscience increases as the time state actors have to
deliberate decreases." Id. at 306. We then concluded that

                               30
although intent to cause harm must be found in a
"hyperpressurized environment," where officials are afforded
the luxury of a greater degree of deliberation and have time to
make "unhurried judgments," deliberate indifference is
sufficient to support an allegation of culpability. Id. We further
noted "the possibility that deliberate indifference might exist
without actual knowledge of a risk of harm when the risk is so
obvious that it should be known." Id. Finally, where the
circumstances require a state actor to make something less
exigent than a "split-second" decision but more urgent than an
"unhurried judgment," i.e., a state actor is required to act "in a
matter of hours or minutes," a court must consider whether a
defendant disregarded a "great risk of serious harm rather than
a substantial risk." Id.

        Therefore, under Sanford, three possible standards can be
used to determine whether state action shocked the conscience:
(1) deliberate indifference; (2) gross negligence or arbitrariness
that indeed shocks the conscience; or (3) intent to cause harm.
456 F.3d at 306. Taking the allegations as true, the complaint
leads us to conclude that defendants Tush and Craig were not
acting in a “hyperpressurized environment.” Instead, they had
sufficient time to proceed deliberately. The complaint alleged
that Michalski asked Tush and Craig for their help in obtaining
confidential computer information on Ferderbar and Mark
Phillips, assistance which they ultimately provided. Complaint
paragraph 26. Also, at paragraph 40, Michalski telephones
Craig and Tush (among others) and tells them that he has
“nothing to live for” and that Ferderbar and Mark Phillips
“would pay for putting him [Michalski] in this situation.” There
is no sense of urgency or emergency here either. The complaint

                               31
does not allege any facts which would lead to an inference that
Michalski was on his way to attack Phillips or that he told the
dispatchers that he was at Phillips’ house. The dispatchers here
had no information which would have placed them in a
“hyperpressurized environment.” Hence, to “shock the
conscience,” they have to have behaved with deliberate
indifference to the results of their actions.6

        Phillips has alleged sufficient facts, which, if proven,
would demonstrate that these defendants were deliberately
indifferent, establishing a level of culpability that was
conscience-shocking.      Accepting the allegations of the
complaint as true, the complaint alleges that Tush and Craig
were aware that Michalski was distraught over his break up with
Ferderbar and yet they assisted him in getting confidential
information on Ferderbar and Phillips. Tush and Craig did not
have to make any hurried judgments in responding to
Michalski’s requests for assistance. Unlike most state-created
danger cases, Tush and Craig did not have to make a decision at
all; they could have refused Michalski’s inappropriate requests
and terminated his telephone call immediately.




       6.
           Sanford is specific: “We again clarify that in any
state-created danger case, the state actor's behavior must always
shock the conscience. But what is required to meet the
conscience-shocking level will depend upon the circumstances
of each case, particularly the extent to which deliberation is
possible. In some circumstances, deliberate indifference will be
sufficient. In others, it will not.” 456 F.3d at 309.

                               32
        Taking these allegations as true and drawing reasonable
inferences therefrom, the complaint does sufficiently allege facts
that these defendants not only foresaw the danger of harm their
actions presented, but were deliberately indifferent in providing
Michalski more confidential information.

       The District Court determined that Phillips failed to
allege that the defendants’ behavior “shocked the conscience”
and concluded as a matter of law that the alleged conduct of
Tush and Craig in providing Michalski with unauthorized
personal information concerning Mark Phillips from the 911
Call Center’s network and databases does not rise to the
required level of conscience shocking action. The District Court
opined that no reasonable dispatcher in the position of these
dispatchers would have understood his or her conduct to be
conscience-shocking. Cf. Estate of Smith v. Marasco, 430 F.3d
140, 154 (3d Cir. 2005). The District Court, again here, was
wrong.

       First, the District Court’s conclusory reliance on Estate
of Smith (Smith II), was inappropriate. The discussion in Smith
II focused on the application of qualified immunity — not
whether the plaintiff had appropriately alleged a state-created
danger claim.7 Although such a determination may be germane

       7.
           To decide if an individual government official is
entitled to qualified immunity, a court must first “determine
whether the plaintiff has alleged the deprivation of an actual
constitutional right at all.” Wilson, 212 F.3d at 786 (citation
omitted). If plaintiff has alleged such a deprivation, a court
                                                  (continued...)

                               33
when deciding qualified immunity, it is not relevant to a
determination at the 12(b)(6) dismissal stage. Second, our test
for whether a plaintiff has alleged that an action “shocks the
conscience” does not contain a requirement that the actor know
his or her actions are “conscience-shocking.” The District Court
inappropriately imported an element of qualified immunity
analysis into its state-created danger analysis.


                               D.

      Finally, the state-created danger analysis requires that
some relationship exist between the state and the plaintiff. The

       7.
         (...continued)
should thereafter “proceed to determine whether that right was
clearly established at the time of the alleged violation.” Id.
Although it is important to resolve qualified immunity questions
at the earliest possible stages of litigation, the importance of
resolving qualified immunity questions early “is in tension with
the reality that factual disputes often need to be resolved before
determining whether defendant's conduct violated a clearly
established constitutional right.” Curley v. Klem, 298 F.3d 271,
277-78 (3d Cir. 2002). A decision as to qualified immunity is
“premature when there are unresolved disputes of historical
facts relevant to the immunity analysis.” Id. at 278. Following
Wilson, the District Court should have first decided whether
Phillips has alleged the deprivation of a constitutional right. If
he has, then, the Court should have determined whether that
right was clearly established at the time the individual
defendants allegedly violated that right.

                               34
District Court did not analyze this element. To adequately
allege such a relationship, a plaintiff need not plead facts that
show the same “special relationship” basis for constitutional
liability. Morse, 132 F.3d at 912. Instead, the relationship
requirement of the third element “contemplates some contact
such that the plaintiff was a foreseeable victim of the
defendant’s acts in a tort sense.” Morse, 132 F.3d at 912. The
relationship that must be established between the state and the
plaintiff can be “merely” that the plaintiff was a foreseeable
victim, individually or as a member of a distinct class. See
Rivas 365 F.3d at 202. Such a relationship may exist where the
plaintiff was a member of a discrete class of persons subjected
to the potential harm brought about by the state’s actions.
Morse, 132 F.3d at 913; Rivas, 365 F.3d at 197.

        Here, Mark Phillips was a member of a discrete group
(namely, Ferderbar and himself) that was subjected to harm by
the defendant’s actions. He was specifically targeted for
retribution by Michalski. Complaint at paragraph 40. Lending
more support to Phillips’ ability to satisfy this element, Mark
Phillips was also in a close personal relationship with Ferderbar,
with whom Michalski was infatuated. Tush and Craig were
aware of this connection. Moreover, Mark Phillips was
specifically contemplated in Michalski’s threatened violence.
Complaint at paragraph 40. Therefore, Phillips has adequately
alleged that there was a relationship between plaintiff and the
state for purposes of the state-created danger theory.

                               E.




                               35
       In sum, the District Court erred in dismissing the state-
created danger claims against defendants Tush and Craig.
Although we find no error in the dismissal of the state-created
danger claims against defendants Nussbaum, Ging, Zurcher and
Cestra, we will remand to the District Court with instructions to
permit Phillips an opportunity to amend her claims against
defendant Nussbaum to allege — if she can — an affirmative act
by Nussbaum. We conclude that it would be futile to permit
amendment as to the remaining defendants because we conclude
that Phillips cannot plead foreseeability on their part.

                              IV.

       Phillips’ complaint additionally alleges violations of
equal protection (Counts One and Two). Specifically, the
complaint alleges that defendants' actions “were intentional
and/or constituted willful disregard, gross recklessness and
deliberate indifference for [Mark] Phillips' personal safety,
well-being and right to life in derogation of the ... Equal
Protection clause ... of the Fourteenth Amendment of the United
States Constitution.” The District Court recognized that Phillips
raised a “class of one” equal protection claim, which is
governed by the Supreme Court’s holding in Village of
Willowbrook v. Olech, 528 U.S. 562 (2000), but dismissed the
complaint because Phillips failed to allege that the Defendants
intentionally treated Mark Phillips differently from other
similarly situated persons.

       In Olech, a municipality conditioned water service for a
property on the plaintiff-owner's granting a 33-foot easement,
even though it required only a 15-foot easement from every

                               36
other property owner. Id. at 563. The Supreme Court allowed
the plaintiff to proceed on the class-of-one theory, recognizing
claims where a “plaintiff alleges that she has been intentionally
treated differently from others similarly situated and that there
is no rational basis for the difference in treatment.” Id. at 564.
The Supreme Court stated that allegations of irrational and
wholly arbitrary treatment, even without allegations of improper
subjective motive, were sufficient to state a claim for relief
under equal protection analysis. Id. at 565.

       We have little jurisprudence discussing this “class of
one” theory. Our only precedential opinion to discuss such
claims held that

       Our court has not had the opportunity to consider
       the equal protection “class of one” theory at any
       length. From the text of Olech itself, however, it
       is clear that, at the very least, to state a claim
       under that theory, a plaintiff must allege that (1)
       the defendant treated him differently from others
       similarly situated, (2) the defendant did so
       intentionally, and (3) there was no rational basis
       for the difference in treatment.

Hill v. Borough of Kutztown, 455 F.3d 225 (3d Cir. 2006). So,
to state a claim for “class of one” equal protection, a plaintiff
must at a minimum allege that he was intentionally treated
differently from others similarly situated by the defendant and
that there was no rational basis for such treatment.




                               37
        Although our jurisprudence does not discuss class-of-one
equal protection claims in detail, the Court of Appeals for the
Second Circuit has gone further and we find its analysis of
pleading requirements for these type of claims persuasive. In
Demuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003), the Court of
Appeals for the Second Circuit reversed a district court’s
determination that Demuria had failed to adequately plead a
“class of one” equal protection violation. Demuria involved a
neighbor-to-neighbor dispute concerning water run-off. The
plaintiffs had made a "general" and "relatively bare" allegation
that the defendant police officer gave them a different standard
of police protection than that typically afforded a resident [of the
town] and alleged facts that the officer was in violation of his
duty as an officer. DeMuria, 328 F.3d at 707. The District
Court found the allegation that the police officer had treated the
DeMurias differently from other citizens to be insufficiently
specific for the purpose of maintaining an equal protection claim
because the DeMurias did not name any similarly situated
individuals or identify any differently-handled disputes.

        The Court of Appeals reversed and held that the Supreme
Court’s holding in Olech does not establish a requirement that
a plaintiff identify in a complaint actual instances where others
have been treated differently for purposes of equal protection.
Id. at 707. The Supreme Court pointed out that “[i]ndeed, it
appears that Olech herself did not ‘name names’ in her
complaint, but made the more general allegation that similarly
situated property owners had been asked for a different
easement.” Id. The Supreme Court determined that such an
allegation could “fairly be construed” as a sufficient allegation
for stating an equal protection claim. Id. quoting Olech, 528

                                38
U.S. at 565. In Demuria, the plaintiffs made a general allegation
that defendant Hawkes gave them a different standard of police
protection than that typically afforded a resident of the town.
The Court of Appeals found this general allegation to be
sufficient and we agree with that determination.

        Although Demuria does relax the “class of one” pleading
requirements by negating the need for specificity, an allegation
of an equal protection violation still must contain a claim that a
plaintiff has been treated differently from others who are
similarly situated. The District Court here dismissed the
complaint because it determined that Phillips had not alleged
that the defendants treated the decedent differently from others
similarly situated. Phillips’ complaint does raise very general
accusations. For example, Count One alleges claims against
Allegheny County and the Allegheny County 911 Services. In
Paragraph 45 of Count One, Phillips alleges that “the actions of
the defendant were intentional and/or constituted willful
disregard, gross recklessness and deliberate indifference for
Phillips’ personal safety, well-being and right to life in
derogation of the Due Process and Equal Protection clauses of
the Fourteenth Amendment.” Count Two of the complaint
alleges claims against the individual defendants Nussbaum,
Tush, Craig, Deustch, Ging, Zurcher and Cestra. In Paragraph
54, the complaint alleges that “the actions of the defendants
were intentional and/or constituted willful disregard, gross
recklessness and deliberate indifference for Phillips’ personal
safety, well-being and right to life in derogation of the Due
Process Clause and Equal Protection clauses of the Fourteenth
Amendment of the United States Constitution.”



                               39
        Clearly, both of these counts specifically refer to the
Equal Protection Clause. Furthermore, Paragraphs 50 and 58
specifically allege that the defendants’ conduct deprived Phillips
of his right to life in violation of the Equal Protection Clause.
But, these general accusations and the invocation of the Equal
Protection Clause are not enough.

        We note that the Olech decision does not establish a
requirement that a plaintiff identify in the complaint specific
instances where others have been treated differently for the
purposes of equal protection. See DeMuria, 328 F.3d at 707.
Indeed, in reversing the dismissal of the complaint in DeMuria,
the Court of Appeals indicated that while the plaintiffs in that
case “face[d] a significant hurdle in finding evidence to prove
their allegations of selective enforcement and unequal treatment,
such concerns should not defeat their claim at the pleading
stage.” Id. Here, however, Phillips’ complaint does not contain
specific allegations that he was treated differently. The facts
section of the Complaint (Paragraphs 17-42) reveals the
egregious actions of various individuals at the 911 computer
center — actions that are alleged to have led to Phillips’ death.
However, there is no allegation that these actions resulted in him
being treated differently from other individuals — individuals
whose personal information is in the 911 database. Paragraph
26 of the Complaint, for example, indicates that “Defendants
Tush and Craig assisted Michalski knowing that they were
accessing unauthorized personal information that had absolutely
no relationship to their functions as dispatchers and [sic] a 911
emergency call center.” This allegation, however does not aver
that Phillips was treated differently.



                               40
       The Complaint, in Counts One and Two, does contain a
specific reference to the Defendants’ intentional actions, which
resulted in a violation of the Phillips’ rights under the Equal
Protection Clause of the Fourteenth Amendment. See e.g.
Complaint at Paragraphs 45, 54. Again, however, there is no
allegation that Phillips was treated differently.

       In opposition to a motion to dismiss in the District Court,
and again before this Court on appeal, Phillips argues that her
complaint alleges that, although other persons similarly situated
had personal information accessed only for legitimate 911
purposes, [Mark Phillips] was discriminated against by the
individual defendants in that they accessed his personal
information to assist Michalski in his attempt to track and
eventually kill him. We agree with the District Court’s
determination that, on the face of the complaint, no such
allegation was made. Even under the less stringent pleading
standards set forth in Olech and Demuria, Phillips’ class-of-one
equal protection claim is inadequately pleaded. Nonetheless,
dismissal at this stage was premature and hence, error.

        As we indicated above, if a complaint is subject to a Rule
12(b)(6) dismissal, a district court must permit a curative
amendment unless such an amendment would be inequitable or
futile. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004).
Moreover, we have instructed that a district court must provide
the plaintiff with this opportunity even if the plaintiff does not
seek leave to amend. Id. Accordingly, even when plaintiff does
not seek leave to amend his complaint after a defendant moves
to dismiss it, unless the district court finds that amendment
would be inequitable or futile, the court must inform the plaintiff

                                41
that he or she has leave to amend the complaint within a set
period of time. See Grayson, 293 F.3d at 108. A district court
may dismiss the action if the plaintiff does not submit an
amended pleading within that time, or if the plaintiff files notice
with the district court of his intent to stand on the complaint.
See Shane, 213 F.3d at 116 (citation omitted).

       The District Court's memorandum opinion indicates that
it dismissed Phillips’ Section 1983 claims with prejudice after
receiving the parties' briefs on the motion to dismiss. There is no
indication that the District Court informed Phillips that she
would have leave to amend her complaint. Moreover, the
memorandum opinion contained neither a finding that a curative
amendment would be inequitable or futile, nor a finding that
Phillips had failed to file a timely amended pleading or had filed
notice of her intention to stand on the complaint. There is no
indication that Phillips wishes to stand on the complaint for
purposes of this appeal. Indeed, Phillips argues that, in the
event we determine she has failed to state a claim, we remand
the matter to the District Court with instructions to permit
amendment. See Batoff v. State Farm Ins. Co., 977 F.2d 848,
851 n. 5 (3d Cir. 1992).




                                42
                               V.

       Standards of pleading are not the same as standards of
proof. We express no opinion on whether Phillips will
ultimately be able to prove her case. At this pleading stage,
however, the District Court erred in several respects. Hence, we
will reverse the District Court’s dismissal of Tush, Craig and
Nussbaum, and will remand with instructions to the District
Court to permit Phillips an opportunity to amend her state-
created danger claims against Nussbaum. We will affirm the
District Court’s dismissal of the remaining defendants.

       Although we conclude that the District Court did not err
in its analysis of Phillips’ equal protection claim, we will
remand this claim as well, once again instructing the District
Court to provide Phillips an opportunity to amend her
complaint.


ROTH, Circuit Judge, Concurring:


       I concur in the opinion of the majority. I write separately
to note a potential issue that could be created by broad
application of the “class of one doctrine.”

       In the context of a substantive due process claim, the
Supreme Court has established that to recover a plaintiff must
establish that the behavior of the government “shocks the
conscience” of a reasonable observer. County of Sacramento v.
Lewis, 523 U.S. 833 (1998). That is, the government’s behavior

                               43
must be not just arbitrary and capricious, but shocking.

       In contrast, a plaintiff proceeding under an equal
protection “class of one” theory may recover if she can establish
that she has been intentionally treated differently from others
similarly situated and that there is no rational basis for the
difference in treatment. Village of Willowbrook v. Olech, 428
U.S. 562 (2000). Phillips is proceeding here on such a theory.

       A broad reading of Olech could allow any plaintiff with
an insufficiently shocking due process claim to resurrect her
constitutional claim by repleading her case as representing a
“class of one” victimized by the particular government action at
issue.8 I do not believe that the Supreme Court intended Olech
to undermine Lewis in this fashion, and I would urge the District
Court to be mindful of this issue as it conducts further
proceedings in this case.




       8.
         On the facts of Lewis itself, the representatives of the
deceased motorcycle passenger could argue that while the
officer’s actions in beginning a high speed pursuit might not
shock the conscience, the officer did treat that particular
motorcyclist differently than other similarly situated
motorcyclists and that there was no rational basis for such a
decision.
                                44
