                                                               NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                             ________________

                                    No. 17-3272
                                 ________________

                            JANE JONES, fictitious name

                                          v.

 PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC.; BRETT HELBERG, Pi
     Kappa Alpha Fraternity Member, in his individual and official capacity; DAVID
    MALINOWSKI, Pi Kappa Alpha Fraternity Member, in his individual and official
  capacity; PI KAPPA ALPHA LOCAL CHAPTER MU ZETA RAMAPO COLLEGE;
     SKENDER AGIC, Pi Kappa Alpha Fraternity/Mu Zeta Chapter President, in his
individual and official capacity; JOHN HOGAN, Pi Kappa Alpha/Mu Zeta Member and
       Sergeant at Arms in his official and individual capacity; JOSHUA WILLIAM
 NEWMAN, Pi Kappa Alpha Fraternity/Mu Zeta Chapter Member, in his individual and
   official capacity; RAMAPO COLLEGE OF NEW JERSEY; RAMAPO COLLEGE
 BOARD OF TRUSTEES; VINCENT MARKOWSKI, Ramapo College of New Jersey
     Public Safety Director, in his individual and official capacity; PETER MERCER,
Ramapo College of New Jersey President, in his individual and official capacity; CORY
  ROSENKRANZ, Ramapo College of New Jersey Coordinator of Substance Abuse &
     Prevention, in her individual and official capacity; MELISSA VAN DER WALL,
Ramapo College of New Jersey Acting Dean of Students; JORDYN MASSOOD, former
 Ramapo College of New Jersey Student; JUSTIN SOMMERS, former Ramapo College
    of New Jersey Student; JOHN/JANE DOES #1-20 individually and in their official
  capacity; XYZ CORPORATIONS #1-10 individually, jointly, and severally and in the
alternative; CHRISTOPHER RAINONE, former Ramapo College of New Jersey Student

     Ramapo College of New Jersey; Ramapo College Board of Trustees; Vincent
        Markowski; Peter Mercer; Cory Rosenkranz; Melissa Van Der Wall,
                                                               Appellants
                              ________________

                     Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Civil Action No. 2-16-cv-07720)
                      District Judge: Honorable Kevin McNulty
                                  ________________
                                  Argued January 8, 2019

               Before: AMBRO, KRAUSE, and FUENTES, Circuit Judges

                                (Opinion filed April 1, 2019)

Gurbir S. Grewal
       Attorney General of New Jersey
Melissa Raksa
       Assistant Attorney General
Benkamin H. Zieman
       Deputy Attorney General
Christopher J. Riggs       [Argued]
Office of Attorney General of New Jersey
Division of Law Tort Litigation and Judiciary
25 Market Street
P.O. Box 116
Trenton, NJ 08625

       Counsel for Appellants


Patrick J. Whalen           [Argued]
109 South Warren Street
P.O. Box 23653
Trenton, NJ 08608

       Counsel for Appellee

                                    ________________
                                        OPINION*
                                    ________________

FUENTES, Circuit Judge

       In this appeal under 42 U.S.C. § 1983, defendant-appellants Ramapo College and

several of its officers—its Board of Trustees, President, Acting Dean of Students and

former Title IX Coordinator, Public Safety Director, and Coordinator of Substance Abuse


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                              2
and Prevention (the “officers”)—appeal the District Court’s denial of their Motion to

Dismiss. In their Motion, Ramapo and the officers sought to dismiss, inter alia, plaintiff-

appellee Jane Jones’s claims for deliberate indifference and a state-created danger in

Counts VII and VIII of her Complaint, respectively. On appeal, Ramapo and the officers

in their official capacities argue they are entitled to sovereign immunity as an arm of the

state. The officers also argue in their individual capacities that they are entitled to

qualified immunity, either because Jones has failed to sufficiently allege a state-created

danger or because it was no longer clearly established following the Supreme Court

decision Ashcroft v. Iqbal1 that supervisors could be liable for violations of the

Fourteenth Amendment by their subordinates.

         We conclude that Ramapo and the officers in their official capacities are entitled

to sovereign immunity under our decision in Maliandi v. Montclair State University.2

Thus, we reverse the District Court’s denial of the Motion to Dismiss with respect to

Counts VII and VIII against Ramapo and the officers in their official capacities. Further,

we hold that Jones has failed to sufficiently plead a state-created danger and the officers

are thus entitled to qualified immunity with respect to Count VIII. However, we affirm

the District Court’s denial of the Motion with respect to Count VII against the officers in

their individual capacities because they have waived the issue.




1
    556 U.S. 662 (2009).
2
    845 F.3d 77 (3d Cir. 2016).
                                               3
I.     Background

       The allegations in Jones’s Complaint may be summarized as follows3:

       A.     Jones’s Sexual Assault and Rape

       The suit arises from the sexual assault and rape of plaintiff-appellee Jane Jones—

who filed this case under a pseudonym—at a fraternity party on the campus of Ramapo

College. The party was held in one of the fraternity member’s student apartments. Upon

her arrival at the party, Jones was served drinks by a fraternity pledge known as “C.L.”

until she was “completely inebriated.”4 C.L. then “lured” Jones into the apartment

bedroom, where he and another man played “Rock, Paper, Scissors” in order to

“determine who would get to sexually assault and rape” her.5 C.L. then sexually

assaulted Jones. When other fraternity members became aware of the assault, they

expelled Jones and C.L. from the party together. Jones’s shoes, underwear, jacket, and

school identification were all left in the apartment.

       C.L. then drove Jones across campus to a freshmen dormitory, passing Ramapo

security checkpoints en route. Two residents of the dormitory, Christopher Rainone and

Justin Sommers, let C.L. and Jones into the dormitory and accompanied C.L. and Jones

to their room. There, C.L. and yet another man again assaulted and raped Jones while

Rainone, Sommers, and a fifth student, Jordyn Massood, kept watch and videotaped the


3
  As noted below, we must, while reviewing a ruling on a motion to dismiss under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), view the facts in the light most
favorable to the plaintiff. In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d
625, 632 (3d Cir. 2017); Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir.
2011).
4
  A37.
5
  Id.
                                             4
incident. Because of her rape and the physical and psychological harm caused by it,

Jones was unable to continue her studies at Ramapo and later left the institution.

         B.     Proceedings in the District Court

         Jones filed suit in the District Court against, inter alia, Ramapo and its officers.

Of the seventeen counts in her Complaint under 42 U.S.C. § 1983, Title IX,6 and state

law, two against Ramapo and its officers are relevant here: Count VII for “deliberate

indifference” and Count VIII for a “state-created danger,” both under § 1983. Jones

alleges that various “Public Safety and Security employees” of Ramapo, named in the

Complaint as Doe defendants, “had the opportunity to intervene and stop” her assault and

rape.7

         Ramapo and its officers moved to dismiss the Complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6), arguing, inter alia, that Ramapo and its officers in

their official capacities were an arm of the state entitled to sovereign immunity and that

the officers in their individual capacities were entitled to qualified immunity. The

District Court denied the Motion to Dismiss, and Ramapo and its officers appealed.




6
    20 U.S.C. §§ 1681-88.
7
    A41.
                                                5
II.    Standard of Review8

       We review denial of a motion to dismiss under Rule 12(b)(1) for lack of

jurisdiction de novo.9 Although Rule 12(b)(1) permits both facial and factual challenges

to a court’s jurisdiction,10 only a facial attack is presented here. A facial attack

“challenges subject matter jurisdiction without disputing the facts alleged in the

complaint, and it requires the court to ‘consider the allegations of the complaint as

true.’”11 In a facial attack, the court applies the same standard as under Rule 12(b)(6).12

       We review denial of a motion to dismiss under Rule 12(b)(6) on the basis of

qualified immunity de novo.13 When conducting our review, “we accept all factual

allegations as true [and] construe the complaint in the light most favorable to the




8
  Jones alleges that the District Court had subject-matter jurisdiction over her federal
claims under 28 U.S.C. § 1331 and over her state claims under § 1367. We have
jurisdiction to review the District Court’s denial of Ramapo and the officers’ Motion to
Dismiss pursuant to the collateral order doctrine. P.R. Aqueduct & Sewer Auth. v.
Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993); Plumhoff v. Rickard, 572 U.S. 765, 772
(2014).
9
  MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503 (3d Cir. 2001) (citing Lavia v.
Pa. Dept. of Corr., 224 F.3d 190, 194-95 (3d Cir. 2000).
10
   In re Horizon Healthcare Servs. Data Breach Litig., 846 F.3d 625, 632 (3d Cir. 2017).
11
   Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016) (quoting Petruska v. Gannon
Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)).
12
   Horizon Healthcare Servs., 846 F.3d at 633.
13
   George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013) (quoting James v. City of Wilkes-
Barre, 700 F.3d 675, 679 (3d Cir. 2012)) (“We exercise de novo review of a district
court’s denial of a motion to dismiss on qualified immunity grounds as it involves a pure
question of law.”).
                                              6
plaintiff.”14 However, “we are not compelled to accept unsupported conclusions and

unwarranted inferences or a legal conclusion couched as a factual allegation.”15

III.   Discussion

       On appeal, Ramapo and its officers raise two arguments: (1) Ramapo and its

officers in their official capacities are an arm of the state entitled to sovereign immunity,

and (2) the officers in their individual capacities are entitled to qualified immunity

because (a) the state-created danger doctrine is inapplicable to merely passive state

conduct or, in the alternative, (b) it is no longer clearly established after the decision

Ashcroft v. Iqbal16 that supervisory liability may be imposed “in the context of a

Fourteenth Amendment state-created danger claim.”17 Because Ramapo and its officers

are arms of the state entitled to sovereign immunity and Jones has failed to sufficiently

plead a state-created danger, we reverse in part and remand for further proceedings.

       A.     Ramapo and Its Officers in Their Official Capacities Are an Arm of
              the State Entitled to Sovereign Immunity

       First, Ramapo and its officers in their official capacities argue that they are an arm

of the state. States and “governmental entities that are considered ‘arms of the State’” are

immune to suit in federal court.18 An entity may be deemed an “arm of the state” under

the balancing test of three co-equal factors that we articulated in Fitchik v. New Jersey


14
   Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) (internal quotation
marks omitted) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir.
2002)).
15
   Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (internal quotation marks
omitted) (internal citation omitted).
16
   556 U.S. 662 (2009).
17
   Appellant Br. at 47-48.
18
   Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989).
                                             7
Transit Rail Operations, Inc.19: (1) “whether the state treasury is legally responsible for

an adverse judgment” against the entity (the “funding factor”), (2) “whether the entity is

treated as an arm of the State under state case law and statutes” (the “status factor”), and

(3) “whether, based largely on the structure of its internal governance, the entity retains

significant autonomy from state control” (the “autonomy factor”).20

       Ramapo argues that it is an arm of the state under our decision in Maliandi v.

Montclair State University.21 We agree. In Maliandi, we applied the Fitchik factors to

Montclair State University and concluded that, although the funding factor weighed

against finding that Montclair was an arm of the state, it was outweighed by the status

and autonomy factors.22 Because Ramapo is a New Jersey state college governed by the

same statutes that governed Montclair, we are compelled by Maliandi to conclude that

Ramapo is an arm of the state under the Fitchik factors. We turn to those factors now.

       First, the funding factor weighs against finding that Ramapo is an arm of the state,

due to our decision in Maliandi.23 In Maliandi, we noted that, under New Jersey law, the

state was legally liable for judgments against Montclair only under the New Jersey Tort

Claims Act24 and the New Jersey Contractual Liability Act.25 Similarly, the fact that only

18.8 to 21.8 percent of Montclair’s funding came from the state weighed against


19
   873 F.2d 655, 659 (3d Cir. 1989).
20
   Maliandi v. Montclair State Univ., 845 F.3d 77, 83 (3d Cir. 2016) (citing Fitchik, 873
F.2d at 659).
21
   845 F.3d 77.
22
   Id. at 86. Montclair was a state college at the time Maliandi was decided.
23
   845 F.3d 77 (3d Cir. 2016). Although Ramapo concedes that the funding factor weighs
against it, the issue is resolvable on a motion to dismiss, so we will address it.
24
   N.J. Stat. Ann. §§ 18A:3B-6(h), 59:1-1 to :12-3.
25
   Id. §§ 59:13-1 to -10.
                                               8
immunity.26 However, the state had expressly immunized itself from Montclair’s

liabilities only in certain, limited cases.27 On the whole, these considerations “tip[ped]

decisively” in favor of finding that Montclair was not an arm of the state.28 We reach the

same conclusion with respect to Ramapo, as it is subject to the same laws regarding

funding as Montclair when Maliandi was decided,29 and Ramapo’s state funding makes

up only 27.9 percent of its budget.30

       Second, under Maliandi, Ramapo’s status under state law weighs in favor of

finding that Ramapo is an arm of the state. The Maliandi Court concluded that although

Montclair’s legal authorization to own land in its own name weighed against treating it as

an arm of the state,31 four other considerations tipped the other direction. First, New

Jersey law did not generally grant state colleges like Montclair the right to sue and be

sued, but instead allowed them to be represented by the state Attorney General.32

Second, Montclair was immune from paying state taxes.33 Third, Montclair was

authorized by state law to exercise eminent domain, a prerogative normally reserved for




26
   Maliandi, 845 F.3d at 88-89 (“[A]lternative sources of funding—even where only a
small part of the entity’s overall budget—counsel against immunity.”). In Maliandi, we
took judicial notice of Montclair’s budget reports as public documents. Id. at 89 n.10.
27
   Id. at 90.
28
   Id. at 91.
29
   See N.J. Stat. Ann. §§ 18A:3B-6(h), :64-6(k), (t), 59:1-1 to :12-3, :13-1 to -10.
30
   Ramapo College of New Jersey, Budget Report 2018-2019 (June 25, 2018),
https://www.ramapo.edu/budget/files/2018/08/FY19-Budget-Book.pdf. As in Maliandi,
we take judicial notice of Ramapo’s financial documents as “public documents.”
Maliandi, 845 F.3d at 89 n.10.
31
   Maliandi, 845 F.3d at 96 (citing N.J. Stat. Ann. § 18A:64-6(k), (q)).
32
   Id. at 94 (citing N.J. Stat. Ann. §§ 18A:3B-6(h), :64-6(k)).
33
   Maliandi, 845 F.3d at 95.
                                              9
arms of the state.34 Fourth, Montclair was generally required to comply with New

Jersey’s administrative procedure and civil service laws.35 The same analysis applies to

Ramapo, as it is subject to the same statutory regime as Montclair, which has not been

substantively amended since Maliandi.36 Thus, Maliandi compels the conclusion that

Ramapo’s status under state law weighs in favor of finding that it is an arm of the state.

       Third, Ramapo’s limited autonomy from the state also weighs in favor of

concluding that Ramapo is an arm of the state, compelled again by the decision in

Maliandi. In Maliandi, we concluded that, although state law guaranteed Montclair

“institutional autonomy”37 and its trustees could only be removed by the Governor for

cause,38 the trustees were all appointed by the governor,39 who was statutorily designated

as the “employer” of all Montclair employees, vesting him with the “sole power to

collectively bargain on their behalf.”40 Similarly, the Secretary of Higher Education was

vested with the authority to issue various rules governing Montclair, including

“regulations relating to licensure, outside employment, tuition, personnel, tenure, and




34
   Id. (citing N.J. Stat. Ann. § 18A:64-6(l)).
35
   Id. (citing N.J. Stat. Ann. §§ 18A:3B-6(f), :64-6(i)). Three other considerations were
inconclusive: state law placed Montclair within the Department of State but guaranteed it
“institutional autonomy,” authorized it to enter into contracts, but subject to state-
imposed limits, and permitted Montclair to separately incorporate, which it never did. Id.
at 91-96 (citing N.J. Stat. Ann. §§ 18A:3B-27, :64-6(a), (k)).
36
   Section 18A:3B-6 was amended in 2017 only to include a reference to the legislation
elevating Montclair from a state college to a public university. 2017 N.J. Laws 178, sec.
37. The substance of § 18A:3B-6 was otherwise unchanged.
37
   Maliandi, 845 F.3d at 98 (citing N.J. Stat. Ann. § 18A:3B-27).
38
   Id. (citing N.J. Stat. Ann. §§ 18A:64-3, -5).
39
   Id. at 97 (citing N.J. Stat. Ann. § 18A:64-3).
40
   Id. (citing N.J. Stat. Ann. § 18A:64-21.1)
                                               10
retirement programs.”41 Montclair was also subject to the state’s administrative

procedure, state contract, and civil service laws.42 Those same statutory requirements

apply to Ramapo, compelling the conclusion that it is not autonomous from the state.

       Because two of the three co-equal Fitchik factors tip in favor of finding that

Ramapo is an arm of the state, it is entitled to sovereign immunity, as are its officers in

their official capacities. Thus, we reverse the District Court’s denial of the Motion to

Dismiss with respect to both Counts VII and VIII against Ramapo and its officers in their

official capacities.

       B.      Qualified Immunity for Jones’s State-Created Danger Claim

       Next, Ramapo’s officers in their individual capacities argue that they are entitled

to qualified immunity. A state official sued in his or her individual capacity is entitled to

qualified immunity from suit unless (1) “the facts that a plaintiff has alleged or shown

make out a violation of a constitutional right” and (2) “the right at issue was ‘clearly

established’ at the time of defendant’s alleged misconduct.”43 A right may be clearly

established even if there is no “previous precedent directly in point”; the ultimate inquiry

is whether “a reasonable official would have known that the conduct was unlawful.”44

       The officers’ principle argument is that Jones has failed to plead a claim for state-

created danger because a state-created danger cannot be premised on the state’s mere



41
   Id. (citing N.J. Stat. Ann. §§ 18A:3B-14, -15).
42
   Id. at 98 (citing N.J. Stat. Ann. §§ 18A:3B-6(f), :64-6(h), (k), (w), (x), :64-52 to -93).
43
   Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194,
201, 121 S. Ct. 2151, 2156 (2001)).
44
   Leveto v. Lapina, 258 F.3d 156, 162 (3d Cir. 2001) (quoting Good v. Dauphin County
Soc. Servs. for Children & Youth, 891 F.2d 1087, 1092 (3d Cir. 1989)).
                                             11
failure to act. We agree. Because Jones has failed to plead a claim for a state-created

danger, we do not reach the officers’ argument regarding Iqbal.

       We conclude that the officers are entitled qualified immunity because Jones has

failed to state a claim for a state-created danger in Count VIII of the Complaint. To state

a claim for state-created danger, the plaintiff must allege: (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.”45

       Jones fails to allege that Ramapo employees “affirmatively used” their authority.

Specifically, her portrayal of Ramapo’s employees as affirmatively “allow[ing]” the

perpetration of her rape is unavailing.46 In Morrow v. Balaski, we rejected “attempts to

morph passive inaction into affirmative acts.”47 In Morrow, the Court, sitting en banc,

concluded that a high school’s readmission of a student suspended for assaulting students

Brittany and Emily Morrow did not constitute a state-created danger, despite the fact the

student again assaulted the Morrow children after her readmission.48 In reaching that

conclusion, we stated, “[W]e fail to see how the suspension created a new danger for the



45
   L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016) (citing Bright v.
Westmoreland Cty., 443 F.3d 276, 281 (3d Cir. 2006)).
46
   See also Appellee Br. at 25-28.
47
   Morrow v. Balaski, 719 F.3d 160, 179 (3d Cir. 2013) (rejecting appellants’ “attempts to
morph passive inaction into affirmative acts”).
48
   Id. at 164, 178.
                                              12
Morrow children or ‘rendered [them] more vulnerable to danger than had the state not

acted at all.’”49 Similarly, Jones was not placed in more danger by Ramapo employees.

At the moments that she may have come into contact with Ramapo’s employees, she was

already in the custody of her assailant. At most, Jones has alleged that Ramapo

employees should have done more to protect her from a private actor, which is outside

the scope of the state-created danger doctrine.50

       In reaching that conclusion, we are not unsympathetic to the suffering that Jones

endured, nor to the tragedy that the events as alleged could have been prevented. Our

holding reflects merely that, while other means, including state tort claims and criminal

proceedings, are available to punish wrongdoers, the state-created danger doctrine does

not reach failures to intervene. We therefore will reverse the District Court with respect

to the officers’ qualified immunity for Jones’s claim for state-created danger in Count

VIII of the Complaint.

       The officers next argue that they are entitled to qualified immunity because it was

no longer clearly established following the Supreme Court’s decision in Ashcroft v. Iqbal

that supervisory liability may be imposed for an official’s “knowledge and acquiescence”

in a subordinate’s creation of a state-created danger.51 The imposition of supervisory

liability is critical to Jones’s claims against the officers because she does not allege that



49
   Id. at 178 (alteration in original) (quoting Bright, 443 F.3d at 281).
50
   DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). Jones’s
reliance on our decision in L.R. v. School District of Philadelphia is similarly unavailing,
because she has failed to allege a change in her status quo caused by a state actor, as
required by that decision. L.R., 836 F.3d at 243.
51
   Reply Br. at 7-8.
                                               13
they personally participated in her harm, but rather caused her injuries through their

“knowledge and acquiescence” in and “deliberate indifference” to the harms she faced.52

       We have held that supervisory liability may be imposed on a defendant for the

conduct of his or her subordinates if the defendant (1) is a “policymaker[]” who “with

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

or custom which directly caused [the plaintiff’s] constitutional harm,”53 or

(2) “participated in violating the plaintiff’s rights, directed others to violate them, or, as

the person in charge, had knowledge of and acquiesced in his subordinates’ violations.”54

In Iqbal, however, the Supreme Court concluded that supervisory liability could not be

imposed on supervisory officials in a discrimination claim for their “mere” “knowledge

and acquiescence in their subordinates’ discriminatory purpose.”55 Instead, the plaintiff

must plead that the officials “adopted and implemented the . . . policies at issue” with the

same discriminatory “purpose” as their subordinates.56 Based on Iqbal, we altered our

standard for supervisory liability, at least for Eighth Amendment claims, concluding that

“the level of intent necessary to establish supervisory liability will vary with the

underlying constitutional tort alleged.”57




52
   E.g., A34, A49, A50-51, A69-72; see Appellee Br. at 20-21.
53
   A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)
(quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)).
54
   A.M., 372 F.3d at 586 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.
1995)).
55
   Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)
56
   Id.
57
   Barkes v. First Corr. Med., Inc., 766 F.3d 307, 319 (3d Cir. 2014), rev’d on other
grounds, Taylor v. Barkes, 135 S. Ct. 2042, 2045 (2015).
                                             14
       Based on Iqbal, the officers contend that the “‘knowledge and acquiescence’

theory of supervisory liability” is no longer viable.58 The officers, however, expressly

limit their argument to “the context of a Fourteenth Amendment state-created danger

claim.”59 Because the officers are entitled to qualified immunity on Jones’s claim for a

state-created danger,60 we do not reach the issue with respect to Iqbal.

       D.     The Officers Have Waived a Challenge to Jones’s Claim for Deliberate
              Indifference

       Finally, Jones contends that the officers in their individual capacities have waived

any argument regarding her claim for deliberate indifference in Count VII of her

Complaint.61 We agree. Appellants “are required to set forth the issues raised on appeal

and to present an argument in support of those issues in their opening brief . . . . [I]f an

appellant fails to comply with these requirements on a particular issue, the appellant

normally has abandoned and waived that issue on appeal and it need not be addressed by

the court of appeals.”62

       The officers have failed to raise any arguments regarding Count VII in their

opening brief. Instead they address only Jones’s state-created danger claims63 and limit

their arguments regarding Iqbal to “the context of a Fourteenth Amendment state-created




58
   Reply Br. at 7.
59
   Appellants Br. at 47-48; accord Reply at 8.
60
   See supra Section III.B.
61
   Appellee Br. at 15.
62
   Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
63
   Appellant Br. at 31.
                                            15
danger claim,”64 failing entirely to address Jones’s deliberate indifference claim against

the officials.

       Nonetheless, the officers contend that “[s]ince the Ramapo Defendants are entitled

sovereign immunity as an arm of the state, and to qualified immunity[,] Count VII along

with all other § 1983 claims must be dismissed.”65 We disagree. Although sovereign

immunity protects the officers in their official capacities with respect to both Counts VII

and VIII, qualified immunity shields them in their individual capacities only with respect

to Count VIII, because Jones has failed to plead only a state-created danger. A claim for

deliberate indifference, however, is an “independent basis for liability,” premised on a

distinct set of elements from a state-created danger claim.66 The officers fail to address

any of those elements and have consequently waived that issue.

IV.    Conclusion

       For the foregoing we reasons, we reverse the Order of the District Court with

respect to Counts VII and VIII of Jane Jones’s Complaint against Ramapo College of

New Jersey and its officers in their official capacities and with respect to Count VIII

against the officers in their individual capacities. We affirm in all other respects.




64
   Appellants Br. at 47-48; accord Reply at 8.
65
   Reply Br. at 4.
66
   Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989); cf. Fagan v.
City of Vineland, 22 F.3d 1283, 1292-93 (3d Cir. 1994).
                                            16
