                                                           NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 12-3875
                                   ____________

                           HEATHER HINTERBERGER

                                         v.

                 IROQUOIS SCHOOL DISTRICT; SALLY LOFTUS

                                              SALLY LOFTUS,
                                                        Appellant




                     Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (District Court No.: 1-08-cv-00317)
                    District Judge: Honorable Sean J. McLaughlin


                           Argued on November 19, 2013


              Before: RENDELL, JORDAN and LIPEZ*, Circuit Judges


                          (Opinion filed: December 5, 2013)




      *Honorable Kermit V. Lipez, Senior United States Circuit Judge for the Court of
Appeals for the First Circuit, sitting by designation.
Richard A. Lanzillo, Esquire (ARGUED)
Knox, McLaughlin, Gornall & Sennett, P.C.
120 West Tenth Street
Erie, PA 16501
                    Counsel for Appellant


Thomas V. Myers, Esquire (ARGUED)
Nichols & Myers
900 State Street
Suite 104
Erie, PA 16501

T. Warren Jones, Esquire
MacDonald, Illig, Jones & Britton, LLP
100 State Street
Suite 700
Erie, PA 16507
                    Counsel for Appellee




                                       OPINION


RENDELL, Circuit Judge:

This suit arises out of a head injury sustained by plaintiff Heather Hinterberger during a

cheerleading practice in March of 2004. Hinterberger sued both Sally Loftus, the parent-

volunteer coach of the Iroquois High School cheerleading squad, and the Iroquois School

District, under 42 U.S.C. § 1983. The District Court granted the School District’s motion

for summary judgment, and denied Loftus’s motion, and Loftus now appeals. For the

reasons that follow, we reverse the order of the District Court.

                                              I.


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       At the time of her injury, Hinterberger was a freshman at Iroquois High School

(“IHS”), and a member of the school cheerleading squad. Cheerleading practices were

often held in the Lawrence Park Elementary School Large Group Instruction (“LGI”)

room. The room featured high ceilings, but the “floor was described as ‘very hard’ and

likely consisted of concrete covered by industrial grade carpeting with little or no

padding.” (App. 9.)

       On March 3, 2004, Hinterberger was injured during a practice in the LGI while

attempting to do a new stunt – the twist down cradle. The twist down cradle involved

Hinterberger being thrown into the air by four teammates, known as the “base,” doing

one full body rotation and then being caught. It is considered an “intermediate stunt,”

which was frequently used in high school cheering competitions. Though the IHS squad

had never performed the stunt prior to this day, they had observed it being performed “by

numerous other squads at a cheerleading competition . . . . Following this event, several

of the IHS squad members asked Defendant Loftus to allow them to add the move to their

own routine.” (App. 6.) However, Loftus demurred and did not introduce the stunt for

seven months, until the day of Hinterberger’s accident, because she “did not feel the

squad was ready to add the maneuver to its routine prior to that point.” (App. 6.)

       Loftus had asked Jessica James, a cheerleader from the McDowell High School

squad, to demonstrate the stunt and help instruct the IHS cheerleaders. James had

participated in regular and competition cheerleading for McDowell, and worked as an

Assistant Coach for a middle school cheerleading squad. James was therefore present for



                                             3
the practice on March 3, 2004, such that she demonstrated the twist down cradle and

remained to help instruct.

       At the practice, Hinterberger served as the “flyer,” the squad member who would

be thrown up into the air by the base during the stunt. For safety, six to eight spotters

were positioned on the perimeter around Hinterberger’s four “base” teammates, in case

the base failed to catch her. After performing the stunt successfully at least five times,

Hinterberger “flew over and outside the perimeter of her base and her spotters, striking

first her left hip, then her left shoulder, then her head on the LGI room floor.” (App. 9.)

As a result, Hinterberger suffered a “severe closed head injury.” (App. 9.) At the time of

the accident, there was no matting in place on the LGI room floor.

       Hinterberger originally filed a civil action against the School District and Loftus in

state court, but that action was removed to the District Court for the Western District of

Pennsylvania on November 17, 2008. The District Court found that Hinterberger

presented sufficient evidence to satisfy each element of her state-created danger claim.

Further, the Court held that because the alleged constitutional right was clearly

established as of the time of the accident, Loftus was not entitled to qualified immunity,

and Loftus’s motion for summary judgment was accordingly denied.

                                              II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331

and 28 U.S.C. § 1367. Before us is an interlocutory appeal from a denial of a motion for

summary judgment. Our Court has jurisdiction to hear the appeal at this stage because a

denial of qualified immunity that turns on an issue of law is treated as a “final decision”

                                              4
within the meaning of 28 U.S.C. § 1291. Ye v. United States, 484 F.3d 634, 636 (3d Cir.

2007). “[W]e possess jurisdiction to review whether the set of facts identified by the

district court is sufficient to establish a violation of a clearly established constitutional

right,” but “we lack jurisdiction to consider whether the district court correctly identified

the set of facts that the summary judgment record is sufficient to prove.” Ziccardi v. City

of Philadelphia, 288 F.3d 57, 61 (3d Cir. 2002).

       Hinterberger claimed that Loftus’s conduct constituted a “state-created danger,”

rendering Loftus liable for a substantive due process violation, under 42 U.S.C. § 1983.

Specifically, Hinterberger alleged that Loftus’s decision to introduce a new cheerleading

stunt without adherence to accepted safety procedures, namely the use of padded mats,

constituted an affirmative act of “deliberate indifference” that shocked the conscience,

thus violating Hinterberger’s substantive due process right of bodily integrity. In

response, Loftus urged that she was not “deliberately indifferent.” Moreover, she

claimed that she was entitled to qualified immunity from suit. The District Court rejected

Loftus’s arguments.

       When a claim of qualified immunity is asserted, a court must determine (1)

whether the facts alleged by plaintiff make out a violation of a constitutional right, and

(2) whether the right was clearly established at the time of the injury. Courts may, at

their discretion, decide in what order to address these inquiries. Pearson v. Callahan,

555 U.S. 223, 236 (2009). Because we find the issue of clearly established law to be

dispositive, we confine our analysis to that issue.



                                               5
       “A Government official’s conduct violates clearly established law when, at the

time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently clear’ that

every ‘reasonable official would have understood that what he is doing violates that

right.’” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (quoting Anderson v.

Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034 (1987) (alterations in the original)). “In

determining whether a right has been clearly established, the court must define the right

allegedly violated at the appropriate level of specificity.” Sharp v. Johnson, 669 F.3d 144,

159 (3d Cir. 2012). The Supreme Court recently emphasized that, “‘[w]e do not require a

case directly on point’ before concluding that the law is clearly established, ‘but existing

precedent must have placed the statutory or constitutional question beyond debate.’”

Stanton v. Sims, --- S.Ct. ---, ---, No. 12-1217, 2013 WL 5878007, at *2 (2013) (quoting

al-Kidd, 131 S. Ct. at 2083). Hinterberger has not met this high threshold.

       We first recognized the viability of state-created danger claims in the context of

certain extreme police conduct. Kneipp v. Tedder, 95 F.3d 1199, 1211 (3d Cir. 1996).

We later clarified that a state-created danger arises when:

       (1) the harm ultimately caused was foreseeable and fairly direct; (2) a state actor
       acted with a degree of culpability that shocks the conscience; (3) a relationship
       between the state and the plaintiff existed such that the plaintiff was a foreseeable
       victim of the defendant’s acts . . . and (4) a state actor affirmatively used his or her
       authority in a way that created a danger to the citizen or that rendered the citizen
       more vulnerable to danger than had the state not acted at all.

Bright v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006) (footnotes and internal

quotation marks omitted). Where an official is not under pressure to make hurried

judgments, “deliberate indifference” to a serious risk of harm will generally shock the


                                              6
conscience, satisfying prong (2) above. Sanford v. Stiles, 456 F.3d 298, 309 (3d Cir.

2006). However, no published opinion of this Court has found that a state-created danger

arises when coaches fail to take certain precautions in athletic practice or in any

analogous situation. Indeed, the closest we have come to addressing this scenario was in

rejecting an Eighth Amendment claim of “deliberate indifference” against staff members

of a juvenile detention facility, for allowing residents to play tackle football without

protective equipment. Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 257 (3d Cir.

2010).

         However, in finding that Hinterberger’s constitutional right was clearly established

as of the date of her injury in 2004, the District Court relied upon district court decisions

which found state-created danger in a school setting. For instance, in Maxwell ex rel.

Maxwell v. Sch. Dist. of City of Philadelphia, 53 F. Supp. 2d 787, 793 (E.D. Pa. 1999),

the court held that a state-created danger claim had been properly alleged where a teacher

knowingly allowed the rape of a female student by male students in a classroom, and

where school officials had locked the classroom door, “cutting the vulnerable students off

from assistance.” Further, in Susavage v. Bucks Cnty. Sch. Intermediate Unit No. 22,

2002 WL 109615, at *15 (E.D. Pa. Jan. 22, 2002), the court held that a jury could find

deliberate indifference where a disabled student died from strangulation due to the

allegedly improper use of a safety harness on the school bus. We conclude that these

cases are significantly dissimilar from the case at bar and would not have informed a

reasonable person in Loftus’s position that the failure to take certain precautions in a high

school cheerleading practice would amount to a constitutional violation.

                                              7
       The only case cited below which concerned an athletic setting, prior to the date of

Hinterberger’s accident, is Sciotto v. Marple Newtown School District, 81 F. Supp. 2d

559 (E.D. Pa. 1999). In that case, the court found viable a state-created danger claim

where a high school student was rendered quadriplegic due to wrestling an older and

heavier college student during a school wrestling practice, in violation of the By–Laws of

the Pennsylvania Interscholastic Athletic Association (“PIAA”), which governs high

school athletics in the state.1 Id. at 565.

       “District court opinions may be relevant to the determination of when a right was

clearly established for qualified immunity analysis.” Doe v. Delie, 257 F.3d 309, 321 (3d

Cir. 2001). However, “we have held district court decisions do not establish the law of

the circuit, and are not even binding on other district courts within the district.” Id. at 321

n.10.; see also Hawkins v. Steingut, 829 F.2d 317, 321 (2d Cir. 1987) (finding that a

“district court decision does not ‘clearly establish’ the law even of its own circuit, much

less that of other circuits. Although district judges within a particular circuit will

frequently find each other’s decisions persuasive, they remain free to disagree.”). In any

event, and reserving comment as to the decision’s correctness, we conclude that Sciotto

alone did not place Loftus on notice that her actions amounted to a constitutional

violation.

       Cases from other courts of appeals also do not support Hinterberger’s claim that

her alleged constitutional right was clearly established as of March 2004. See, e.g.,


1
 At the time of Hinterberger’s accident, the PIAA did not officially recognize
cheerleading as a sport and accordingly did not issue rules pertaining to cheerleading.
                                               8
Priester v. Lowndes Cnty., 354 F.3d 414, 422 (5th Cir. 2004) (noting that Fifth Circuit

had not adopted a theory of state-created danger, and otherwise found no liability for

injury sustained to student during football practice); Lillard v. Shelby Cnty. Bd. of Educ.,

76 F.3d 716, 726 (6th Cir. 1996) (holding that a single slap, inappropriate touching and

suggestive comments by a teacher/coach did not constitute a substantive due process

violation). Indeed, Hinterberger does not cite, and we have not found, any precedential

circuit court decisions finding a state-created danger in the context of a school athletic

practice.2

       We thus conclude that Hinterberger’s alleged right was not clearly established at

the time of her accident. It was not “beyond debate” as of March 2004 that Loftus’s

2
  We note that cases decided in this circuit after Hinterberger’s accident have not been
models of clarity as to whether a state-created danger claim can be successfully
maintained in the context of school sports. Compare Hillard v. Lampeter-Strasburg Sch.
Dist., 2004 WL 1091050 (E.D. Pa. May 13, 2004) (finding state-created danger where
P.E. teacher instructed class to tape a student to a wall), and Alt v. Shirey, 2012 WL
726579 (W.D. Pa. Feb. 7, 2012) (holding state-created danger sufficiently pled where
coaches sent student into football game immediately after sustaining a head injury), with
Yatsko v. Berezwick, 2008 WL 2444503 (M.D. Pa. June 13, 2008) (finding no state-
created danger where coaches encouraged student to play in basketball game after
experiencing a head injury), and Leonard v. Owen J. Roberts Sch. Dist., 2009 WL
603160 (E.D. Pa. Mar. 5, 2009) (stating that there was no state-created danger based on
failure to prevent student from being impaled by a javelin), and Lavella v. Stockhausen,
2013 WL 1838387 (W.D. Pa. May 1, 2013) (holding no state-created danger where
cheerleader was struck in the head by a flyer during practice, and had previously suffered
concussions). The differing outcomes in these cases further undermines Hinterberger’s
contention that Loftus should reasonably have understood her actions in March 2004 to
violate a constitutional right. See also Estate of C.A. v. Castro, 2013 WL 6155819, at *4
(5th Cir. Nov. 25, 2013) (finding that science activity in a swimming pool, resulting in a
student’s death, was not a violation of clearly established law as “no case has found a
violation under similar facts.”)



                                              9
decision to introduce a new cheerleading stunt following a delay of several months,

through the instruction of an experienced cheerleader, with the use of multiple spotters,

but without any matting, violated Hinterberger’s substantive due process rights. See

Stanton, 2013 WL 5878007, at *2. We fully recognize the tragic nature of Hinterberger’s

injury and the fact that more might have been done to prevent it. But we are admonished

that the “due process guarantee does not entail a body of constitutional law imposing

liability whenever someone cloaked with state authority causes harm.” Cnty. of

Sacramento v. Lewis, 523 U.S. 833, 848 (1998). As Hinterberger’s alleged right was not

clearly established at the time of her injury, Loftus is entitled to qualified immunity from

suit.

                                              III.

        We accordingly reverse the decision of the District Court.




                                             10
