                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 17-2095
                                     ______________

                                    SHAWN LOGAN,
                                           Appellant

                                             v.

  THE BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PITTSBURGH;
           CITY OF PITTSBURGH PUBLIC SCHOOL DISTRICT;
        DALE FREDERICK; RONALD ZANGARO; ROBERT LELLOCK
                          ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. No. 2-15-cv-00499)
                     District Judge: Hon. Joy Flowers Conti
                                ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     July 9, 2018
                                  ______________

           Before: SHWARTZ, NYGAARD, and RENDELL, Circuit Judges.

                                  (Filed: August 6, 2018)

                                     ______________

                                        OPINION *
                                     ______________




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

          Plaintiff Shawn Logan appeals the District Court’s order denying his motion for

leave to file a third amended complaint against the Board of Education of the School

District of Pittsburgh and the City of Pittsburgh Public School District (together, the

“School District”). Because the District Court properly denied leave to amend, we will

affirm.

                                               I1

          Logan alleges Defendant Robert Lellock, a former police officer of the Pittsburgh

School District, sexually abused him on at least 25 occasions. He alleges that during the

1998-1999 school year, when Logan was in sixth grade at Arthur J. Rooney Middle

School, Lellock removed Logan from class and sexually abused him in a janitor’s room

at the middle school. Logan also alleges Lellock abused approximately 20 other students

in similar ways. In July 2013, Lellock was convicted of sexual-assault-related crimes in

Pennsylvania state court and sentenced to 32 to 64 years’ imprisonment.

          In 2015, Logan filed suit in the United States District Court for the Western

District of Pennsylvania against Lellock and the School District. 2 The District Court



          1
          We draw the factual background largely from the allegations contained in
Logan’s third amended complaint (the “TAC”), which we accept as true. See Mammaro
v. N.J. Div. of Child Prot. & Permanency, 814 F.3d 164, 166 (3d Cir. 2016). We also
consider exhibits attached to the complaint, matters of public record, and undisputedly
authentic documents if the complainant’s claims are based upon such documents. Hartig
Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016); see also infra Section
II.A.
        2
          Logan also sued Ronald Zangaro, the former principal of Rooney Middle School,
and Dale Frederick, the Superintendent of Pittsburgh Public Schools. Logan did not

                                                2
granted the School District’s motion to dismiss Logan’s amended complaint, and second

amended complaint, and granted summary judgment against Lellock on Logan’s

Fourteenth Amendment substantive due process claim.

       At issue here is Logan’s motion for leave to file a third amended complaint (the

“TAC”) and his claims against the School District pursuant to 42 U.S.C. § 1983. He

asserts, among other things, the School District failed to implement appropriate policies

and training to protect students from sexual abuse, and, given the known risks of sexual

assault in schools, a properly-trained administration and faculty would have investigated

and stopped Lellock’s practice of removing students from class. Logan relies in

particular on a May 28, 1999 incident where the middle school’s principal caught Lellock

getting up from the floor with a student in a locked storage room. Lellock said he took

the student there to “wrestle with him.” App. 1326. Lellock was not terminated for this

conduct, but he was suspended with pay and the incident was reported to Pittsburgh

Police. The TAC also incorporates the deposition testimony of the former Chief of

Police of Pittsburgh Public Schools, Robert Fadzen, who described several incidents

allegedly showing the School District’s failure to protect students from sexual abuse,

including a prior incident in which Lellock had handcuffed an eight-year-old boy to a

chair and sat on his lap for sexual purposes; an incident involving a school principal, in a

dumpster on school property, observing students with binoculars while masturbating; a

principal’s interference with the arrest of a student who had sexually abused a five-year-


name these two individuals as defendants in his second amended complaint or proposed
TAC.

                                             3
old girl; a principal directing a cleaning crew to sanitize the area where a female student

was raped by a male student; and instances where Fadzen was criticized and/or

investigated for raising certain matters, including a sex offender’s one-time access to a

preschool and how a rape investigation was being handled. Based on these incidents,

Logan alleges his TAC demonstrates that the School District was aware of sexual

misconduct by School District employees or on School District property and Lellock’s

abuse but failed to take appropriate action.

       The TAC states it attached two exhibits: Fadzen’s deposition transcript and an

expert report opining that the School District did not provide a safe learning environment

and did not implement appropriate polices, or properly train teachers, regarding sexual

abuse of students by school personnel. He attached many other documents to his motion

for leave to file the TAC. In addition to the expert report and Fadzen’s deposition

transcript, Logan attached the transcripts of depositions of School District faculty and

administrators, School District documents concerning sexual harassment from 1992,

1995, 2000, and 2001, and newspaper articles regarding sexual abuse in public schools or

by public school officials.

       The District Court denied Logan’s motion for leave to file the TAC, holding that

amendment would be futile. Logan v. Bd. of Educ. of Sch. Dist. of Pittsburgh, Civ. No.

15-499, 2017 WL 1001602 (W.D. Pa. Mar. 15, 2017). It concluded Logan failed to

sufficiently allege the School District was deliberately indifferent in training staff on the

proper removal of students from classrooms, noting there were no facts from which the

Court could reasonably infer that the School District knew that the sexual abuse of a child


                                               4
by a school police officer was a highly predictable consequence of not properly training

staff, and no “obvious risks . . . were brought to the [School District’s] attention prior to

the May 28, 1999 incident.” Id. at *8. As to the incident Fadzen described in which

Lellock was found sitting on a handcuffed student, the Court recognized that a failure-to-

train claim may be stated based on a single instance, as in L.R. v. School District of

Philadelphia, 836 F.3d 235 (3d Cir. 2016), but reasoned that L.R. was different because

the school policies at issue there—where a teacher released a kindergartner from the

classroom to a stranger who abducted and sexually abused the child—involved the

abduction risk to young children caused by strangers, in contrast to policies regarding

school police officers’ removal of students from class. Logan, 2017 WL 1001602, at *9.

Finally, the District Court concluded Logan failed to sufficiently allege the School

District was deliberately indifferent in not training teachers to detect and report signs of

sexual abuse. Id. at *10. With respect to the expert’s findings and Logan’s allegations,

the Court observed that together they “may be sufficient to infer that the [School District]

w[as] negligent, but they are not sufficient for the court to reasonably infer that the

[School District] knew that the risk of students being sexually abused by District police

officers, such as Lellock, was likely or obvious.” Id. 3



       3
         The District Court concluded that documents, other than Fadzen’s deposition
testimony, the expert report, and a “purported District school visitor policy” attached to
Logan’s motion, could not be considered because they were not public records or were
not attached to or described in the complaint, and that many of Fadzen’s allegations could
not be considered because the Court could not infer they occurred prior to May 28, 1999
or put the School District on notice of Lellock’s abusive conduct. Logan, 2017 WL
1001602, at *4.

                                              5
       Logan appeals.

                                               II 4

                                               A

       We review the denial of a motion for leave to file an amended complaint for abuse

of discretion, but we exercise plenary review over the District Court’s ruling that

amendment would be futile. Maiden Creek Assocs., L.P. v. U.S. Dep’t of Transp., 823

F.3d 184, 189 (3d Cir. 2016). To determine futility, we use the “same standard of legal

sufficiency” as we would apply to a motion to dismiss under Rule 12(b)(6). Id. (citation

omitted). That standard of legal sufficiency requires us to decide whether the complaint,

construed “in the light most favorable to the plaintiff,” Santomenno ex rel. John Hancock

Tr. v. John Hancock Life Ins. Co., 768 F.3d 284, 290 (3d Cir. 2014) (citation omitted),

“contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face,’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)), “but we disregard rote recitals of the

elements of a cause of action, legal conclusions, and mere conclusory statements,” James

v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). A claim is plausible when the

pleaded facts allow us “to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147

(3d Cir. 2014).




       4
         The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291.

                                                6
       In determining the sufficiency of a complaint, we “consider only the complaint,

exhibits attached to the complaint, matters of public record, as well as undisputedly

authentic documents if the complainant’s claims are based upon the documents.” Hartig

Drug Co. v. Senju Pharm. Co., 836 F.3d 261, 268 (3d Cir. 2016) (alteration and citation

omitted). Public records include criminal case dispositions, letter decisions of

government agencies, published reports of administrative bodies, judicial opinions, and

hearing transcripts. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007); Pension

Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1197 (3d Cir. 1993). Under

the Rule 12(b)(6) standard, courts also may consider deposition testimony, but only for

the existence of the testimony—not for the truth of the facts asserted therein. See Lum v.

Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004), abrogated on other grounds by

Twombly, 550 U.S. at 223-24, as recognized in In re Lipitor Antitrust Litig., 868 F.3d

231, 249 (3d Cir. 2017).

                                              B

       Logan argues the District Court erred in refusing to consider the “range of

evidence that was detailed in the . . . Complaint, and was attached to the . . . Motion

papers,” and in declining to draw inferences in his favor. Appellant’s Br. at 27. Relying

primarily on Fadzen’s testimony, Logan asserts he provided sufficient factual allegations

that the School District was on notice of the dangers posed by removing students from

classrooms but failed to train staff to prevent these risks; the District Court erred in

declining to infer that specific events put the School District on notice of Lellock’s sexual

misconduct; and the Court erred in refusing to consider evidence post-dating Lellock’s


                                               7
abuse of Logan showing the School District’s efforts to conceal Lellock’s abuse of Logan

and others.

                                              1

       We first consider whether the District Court properly limited itself to considering

the allegations in the TAC, Fadzen’s deposition testimony, and the expert report, and

conclude that it did.

       The District Court correctly declined to consider documents attached only to

Logan’s motion for leave to file the TAC because they were not attached to the

complaint, not matters of public record, or not undisputedly authentic documents upon

which Logan’s claims are based. See Sands, 502 F.3d at 268; White Consol. Indus., 998

F.2d at 1197. Although we generally would not consider a deposition transcript attached

to a complaint for the truth of the matters asserted therein, see Lum, 361 F.3d at 221 n.3,

the District Court considered, without objection, both Fadzen’s deposition and the

expert’s report in deciding whether the proposed TAC was futile. While this may have

been incorrect, it is harmless, because even if the contents of the deposition transcript

were embodied verbatim in the TAC, they would not set forth a claim for relief against

the School District under § 1983 for failing to train its employees.

                                              2

       The School District is akin to a municipality for the purposes of § 1983. “[A]

municipality may be liable [under § 1983] for the failure to train its employees only

where that failure amounts to ‘deliberate indifference to the [constitutional] rights of

persons with whom the [employees] come in contact.’” Doe v. Luzerne County, 660


                                              8
F.3d 169, 179 (3d Cir. 2011) (third alteration in original) (quoting City of Canton v.

Harris, 489 U.S. 378, 388 (1989)). For a municipality’s alleged failure to train to amount

to a deliberate choice, the plaintiff must show “(1) municipal policymakers know that

employees will confront a particular situation; (2) the situation involves a difficult choice

or a history of employees mishandling; and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Id. at 180 (quoting Carter v. City

of Philadelphia, 181 F.3d 339, 357 (3d Cir. 1999)). A pattern of like constitutional

violations is usually necessary to show deliberate indifference, but single-incident

liability can attach “when the need for training ‘can be said to be so obvious.’” Thomas

v. Cumberland County, 749 F.3d 217, 223 (3d Cir. 2014) (quoting City of Canton, 489

U.S. at 390 n.10).

       In addition, for a local government to be liable in this situation, “the identified

deficiency in a . . . training program must be closely related to the ultimate injury,” which

means the plaintiff must “prove that the deficiency in training actually caused [the

constitutional violation at issue].” Doe, 660 F.3d at 180 (quoting City of Canton, 489

U.S. at 391) (alteration in original).

       Logan argues, as Fadzen testified, that the School District had a policy that a

school police officer could not remove a student from class unless the officer had a

warrant, and could not do so to interview the student unless the principal, the student’s

parent(s), or someone from the School District attending as “loco parentis” was also

present. Appellant’s Br. at 36; App. 864. The facts Logan alleges, however, do not




                                              9
demonstrate that, in failing to train staff on such a policy, the School District was

deliberately indifferent to the risk of sexual assault.

       Logan cites four instances of misconduct about which Fadzen testified and which

we will treat as if set forth in the TAC, but none would have provided the School District

notice that its employees would confront a situation involving a police officer removing

students from their classrooms to assault them. First, the former school board president,

Rob Suber, “leer[ed]” at girls at football and basketball games, which Fadzen complained

about, and that Suber in 2001 pleaded guilty to rape of a seven-year-old girl. App. 818.

Abhorrent, to be sure, but neither the TAC nor the documents attached thereto provides a

timeframe for these events. Moreover, Suber’s conviction post-dates the misconduct at

issue here, and in any event, Suber’s actions differ from the risk that a police officer

removing children from their classrooms would assault them. Second, Fadzen at one

point caught a school principal, Bernie Komoroski, masturbating in a dumpster at night

while looking at children through binoculars. This inappropriate behavior does not,

however, present the risk of harm at issue here, and while Fadzen did not provide a date

for this activity, it also appears to have occurred after Lellock abused Logan and other

students and thus could not give the School District notice of the kind of risk Lellock

presented. Third, Logan cites Fadzen’s testimony that he heard from a guard at a

different school, CAPA, “within the last . . . four years,” that “there’s a guy in the school,

he’s taking kids in weird areas of the school. Plus, Lellock is taking them into the closet

up on the second floor [of the CAPA school].” App. 842. Because it is unclear when this

troubling misconduct occurred, it does not provide a basis to infer that the School District


                                              10
was on notice prior to May 28, 1999 of Lellock’s actions or the risk to students being

taken from class. Fourth, Fadzen testified that he heard from an elementary school staff

member that Lellock handcuffed an eight-year-old boy to a chair and sat on him, for

sexual gratification. Fadzen stated he thought this happened before Lellock abused

Logan and others students in 1998-1999. Even if we assume these disturbing acts

occurred before the 1998-1999 school year, they still do not show the School District was

aware or should have suspected Lellock was removing students from class to abuse them,

and thus does not show the School District was deliberately indifferent to a risk to their

safety. 5

        Logan also asserts the District Court erred in not accounting for relevant conduct

that occurred after Lellock’s abuse during the 1998-1999 school year, such as cover-ups

and insufficient investigations. We have considered Logan’s allegations and have drawn

all reasonable inferences in his favor, but these events simply do not demonstrate

deliberate indifference on the School District’s part because events that post-date 1998-

1999 do not show what School District employees should have expected to occur in

1998-1999.

        Finally, as to the May 28, 1999 incident when the principal found Lellock

“wrestling” with a student in a closet, there can be no question that the School District


        5
        The case of Board of Public Education of School District of Pittsburgh v.
National Union Fire Insurance Co. of Pittsburgh, 790 A.2d 910 (Pa. Super. Ct. Pa. 1998),
on which Logan relies, also does not help him because while that case concerned
insurance coverage for the sexual assault by the president of the parent-teacher
organization of a student, it did not concern removal from class and the risk of assault by
school police.

                                             11
was put on notice of Lellock’s misconduct from this point on. Because of this incident,

Lellock was suspended with pay, and the matter was reported to the Pittsburgh Police.

Even assuming this could show deliberate indifference toward students’ safety from

sexual abuse, the School District’s alleged failings after May 28, 1999 did not “actually

cause[ ]” the abuse Logan suffered, Thomas, 749 F.3d at 222, because Lellock abused

him during the 1998-1999 school year and thus before the events of May 28, 1999. 6

                                            III

       For the foregoing reasons, we will affirm.




       6
         L.R. also does not assist Logan. L.R. involved a kindergarten teacher releasing a
student from class to a stranger, who subsequently abducted and sexually abused the
child. 836 F.3d at 239-40, 243-44, 246. The risk of harm in releasing a five-year-old in
those circumstances was “so obvious” that it rose to the level of deliberate indifference,
id. at 246—in other words, it was a situation in which single-instance liability could
attach, see Thomas, 749 F.3d at 223. Lellock’s May 28, 1999 misconduct is indefensible,
but a police officer who is permitted on school property and removes students from class
does not present a situation in which it is obvious that bad things would follow. Thus,
those events do not show a deliberate indifference toward Logan or similarly-situated
students, or causation.

                                            12
