                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
             IN THE UNITED STATES COURT OF APPEALS         August 19, 2003

                     FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                               Clerk
                     _____________________

                         No.: 02-41166
                     _____________________

      HOWARD SCANLAN; DENISE SCANLAN; and LAUREN SCANLAN;

                     Plaintiffs/Appellants;

                             versus

                  TEXAS A&M UNIVERSITY; ET AL,
                           Defendant;

                        TEXAS A&M UNIVERSITY;
        J. MALON SOUTHERLAND, in his individual capacity;
           RUSSELL THOMPSON, in his individual capacity,
               RAY BOWEN, in his individual capacity;
       WILLIAM L. KIBLER, in his individual capacity; and
         JOHN J. KOLDUS, III, in his individual capacity,

                     Defendants/Appellees.

                     _____________________

                         No.: 02-41173
                     _____________________

SEAN BREEN, as Administrator of the Estate of Christopher Breen;
       CHRISTOPHER BREEN; JOHN E. BREEN; MARIAN K. BREEN;

                     Plaintiffs/Appellants;

                             versus

                      TEXAS A&M UNIVERSITY;
       J. MALON SOUTHERLAND, in his individual capacity;
         RUSSELL THOMPSON, in his individual capacity;
             RAY BOWEN, in his individual capacity;

                     Defendants/Appellees.




                               1
                      _____________________

                          No.: 02-41187
                      _____________________

 JAMES KIMMEL, as Representative of the Estate of Lucas Kimmel;
                  JAMES KIMMEL; WALIETA KIMMEL;

                     Plaintiffs/Appellants;

                             versus

                  TEXAS A&M UNIVERSITY; ET AL,
                           Defendants;

                        TEXAS A&M UNIVERSITY;
        J. MALON SOUTHERLAND, in his individual capacity;
         RUSSELL J. THOMPSON, in his individual capacity;
               RAY BOWEN, in his individual capacity;
       WILLIAM L. KIBLER, in his individual capacity; and
            JOHN J. KOLDUS, in his individual capacity;

                      Defendants/Appellees.

                     ______________________

                          No.: 02-41204
                      _____________________

              JACQUELYNN KAY SELF, Individually and
   as Administratrix of the Estate of Jerry Don Self, Deceased;
 KATHY MCCLAIN ESCAMILLA, Individually and as Administratrix of
    the Estate of Bryan A. McClain, Deceased; PHIL R. MCCLAIN;
ANDREA HEARD, Individually and as Administratrix of the Estate of
        Christopher Lee Heard, Deceased; LESLIE G. HEARD;
 ANTHONY POWELL, Individually and as Administrator of the Estate
of Chad D. Powell, Deceased; BEVERLY JILL POWELL; MATTHEW ROBINS;
                  DOMINIC BRAUS; and NANCY BRAUS;


                     Plaintiffs/Appellants,

                             versus

                  TEXAS A&M UNIVERSITY; ET AL,
                           Defendants;

     TEXAS A&M UNIVERSITY; RAY BOWEN; J. MALON SOUTHERLAND;
  WILLIAM L. KIBLER; RUSSELL W. THOMPSON; JOHN J. KOLDUS, III;

                                2
M.T. HOPGOOD, JR., Major General; DONALD J. JOHNSON;
  ZACK COAPLAND; KEVIN JACKSON; JAMES R. REYNOLDS;
ROBERT HARRY STITELER, JR.; and MICHAEL DAVID KRENZ;

               Defendants/Appellees.
                ____________________

                   No.: 02-41222
               _____________________

    JOHN ANDREW COMSTOCK and DIXIE ANN ZINNEKER;

               Plaintiffs/Appellants;

                       versus

            TEXAS A&M UNIVERSITY; ET AL,
                     Defendants,

                TEXAS A&M UNIVERSITY;
 J. MALON SOUTHERLAND, in his individual capacity;
   RUSSELL THOMPSON, in his individual capacity;
       RAY BOWEN, in his individual capacity;

               Defendants/Appellees.

               _____________________

                   No.: 02-41244
               _____________________

                    BILL DAVIS,

                Plaintiff/Appellant;

                       versus

            TEXAS A&M UNIVERSITY; ET AL,
                     Defendants,

                 TEXAS A&M UNIVERSITY;
  J. MALON SOUTHERLAND, in his individual capacity;
    RUSSELL THOMPSON, in his individual capacity;
        RAY BOWEN, in his individual capacity;
 WILLIAM L. KIBLER, in his individual capacity; and
   JOHN J. KOLDUS, III, in his individual capacity;

                Defendants/Appellees.
    ____________________________________________

                         3
            Appeals from the United States District Court
                  for the Southern District of Texas
             ____________________________________________



Before WIENER, CLEMENT and PRADO, Circuit Judges.

PRADO, Circuit Judge.

     The above numbered and styled appeals arise from six

lawsuits filed in the Southern District of Texas by, and on

behalf of, those injured and killed during the Texas A&M

University bonfire disaster that occurred on November 18, 1999.

The district court dismissed all of the plaintiffs’ claims and

entered a final judgment in each lawsuit.    The plaintiffs

appealed to challenge the dismissal orders.     After considering

the parties’ arguments on appeal, this Court reverses the

district court’s judgments.

                          Background Facts

     On November 18, 1999, the Texas A&M University bonfire stack

collapsed, killing 12 students and injuring another 27.     After

the accident, the president of Texas A&M University (the

University) convened a special commission to investigate the

collapse.    The investigating commission documented its findings

and conclusions in the Final Report of the Special Commission on

the 1999 Texas A&M Bonfire (Final Report).    Subsequently, the

appellants filed six lawsuits.    In the lawsuits, the plaintiffs

alleged section 1983 claims under the state-created danger theory



                                  4
and various state law claims against the University and various

University officials (the University Officials) whom the

plaintiffs hold responsible for their injuries.

     From the outset, the district court limited discovery to the

issue of qualified immunity.   The district court allowed five

weeks to conduct discovery on that issue and set the deadline for

dispositive motions four weeks later.   Eight weeks after the

deadline for dispositive motions, the district court issued the

orders challenged in these appeals, dismissing all of the

plaintiffs’ claims.   The court issued the same order in each

case.

     The district court’s orders were quite clear.   The court

first dismissed the plaintiffs’ claims against the University as

a state entity on Eleventh Amendment immunity grounds.   No

plaintiff appeals that action.

     Next, the district court adopted the Final Report and

determined the actions of the University Officials did not, as a

matter of law, rise to the level of deliberate indifference.

Based on that determination, the district court dismissed the

plaintiffs’ section 1983 claims against the University Officials

for failure to state a claim under Rule 12(b)(6) of the Federal

Rules of Civil Procedure.   Each plaintiff challenges that action.

     The district court then declined to exercise supplemental

jurisdiction over the plaintiffs’ state law claims and dismissed

those claims without prejudice.   No plaintiff appeals that

                                  5
action.

                  The Plaintiffs’ Issues on Appeal

     The plaintiffs’ issues on appeal can be summarized as

follows: (1) Whether the district court erred by relying on

documents outside the complaints to determine the plaintiffs

failed to state a claim, and (2) whether the district court erred

by dismissing the plaintiffs’ claims against the University

Officials for failure to state a claim.     This Court reviews the

district court's dismissal under Rule 12(b)(6) de novo, taking

the allegations of the complaint to be true.     See Vander Zee v.

Reno, 73 F.3d 1365, 1368 (5th Cir. 1996); Eason v. Holt, 73 F.3d

600, 601 (5th Cir. 1996).

                            Rule 12(b)(6)

     Rule 12(b)(6) authorizes dismissal of a complaint for

“failure to state a claim upon which relief can be granted.”

FED. R. CIV. P. 12(b)(6).   The district court can grant a motion

to dismiss only if it appears beyond doubt that the plaintiff can

prove no set of facts in support of his claim that would entitle

him to relief.    See Leffall v. Dallas Indep. Sch. Dist., 28 F.3d

521, 524 (5th Cir. 1994).    Accordingly, this Court has

consistently disfavored dismissal under Rule 12(b)(6).     See Hall

v. Thomas,190 F.3d 693, 696 (5th Cir. 1999); Mahone v. Addicks

Utility Dist. of Harris County, 836 F.2d 921, 926 (5th Cir.

1988).    In determining whether to grant a motion to dismiss, the


                                  6
district court must not go outside the pleadings and must accept

all well-pleaded facts as true, viewing those facts most

favorably to the plaintiff.   See Scheuer v. Rhodes, 416 U.S. 232,

236 (1974); Khurana v. Innovative Health Care Sys., Inc., 130

F.3d 143, 147 (5th Cir. 1997); Capital Parks, Inc. v.

Southeastern Adver. & Sales Sys., Inc. 30 F.3d 627, 629 (5th Cir.

1994).

     Although the district court may not go outside the

complaint, this Court has recognized one limited exception.      In

Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th

Cir. 2000), this Court approved the district court’s

consideration of documents attached to a motion to dismiss.      In

that case, the district court relied on an agreement and an

assessment about a potential merger between two companies in

determining the contract was not intended to benefit the

plaintiffs/stock option holders.       See Collins v. Morgan Stanley

Dean Witter, 60 F. Supp.2d 614 (S.D. Tex. 1999).      The fact that

the plaintiffs did not object to, or appeal, the district court’s

consideration of those documents was central to this Court’s

approval of that practice.    See Collins, 224 F.3d at 498-99 (5th

Cir. 2000).   In approving the district court’s consideration of

the documents attached to the motion to dismiss, this Court

restricted such consideration to documents that are referred to

in the plaintiff’s complaint and are central to the plaintiff’s


                                   7
claim.   Id.

 Whether the District Court Erred By Relying on the Final Report

     The district court relied on Collins as its authority to

consider the Final Report in dismissing the plaintiffs’ claims.

Like Collins, the plaintiffs in the instant case referred to the

Final Report in their complaints.    But unlike Collins, the

University Officials did not attach the Final Report to their

motion to dismiss.   Instead, the University Officials quoted

portions of the Final Report in their motions and provided an

Internet cite.   As a result, the district court had to seek out

the report in order to consider it in making the factual

determinations that served as the basis of the court’s conclusion

about deliberate indifference.

     The University Officials maintain on appeal that because

they provided the Internet citation for the report, and because

the report is appropriate for judicial notice under Rule 201 of

the Federal Rules of Evidence, the plaintiffs had sufficient

notice of the document so that it was not necessary for the

University Officials to attach it to their motion to invoke the

Collins exception.   The district court’s order, however, does not

indicate the court took judicial notice of the report.   Even if

the district court had taken judicial notice of the report, that

action would have been improper because “[a] judicially noticed

fact must be one not subject to reasonable dispute in that it is


                                 8
either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned.”    FED. R. EVID. 201(b).   The Final

Report cannot be characterized as generally known within the

Southern District of Texas or capable of accurate and ready

determination by resort to sources whose accuracy cannot

reasonably be questioned.    Instead, the Final Report is

essentially a defendant-created report that focuses on the causes

of the bonfire collapse and thanks at least one of the University

Officials for supporting the special commission’s efforts to

investigate the disaster.

     In addition to the Final Report not being attached to the

motion, the plaintiffs did not accept the Final Report as true in

district court, and complain about the district court’s

consideration of the Final Report on appeal.     Notably, the

Scanlan plaintiffs, the Breen plaintiffs, the Kimmel plaintiffs

and Plaintiff Bill Davis objected to the Court's reliance on

Collins in their response to the defendants' motion for summary

judgment.   These plaintiffs distinguished Collins from their case

stating,

     Collins is unlike the present case in many respects:
     (1) the Commission Report was not attached to the
     Motion to Dismiss; (2) the Commission Report refers to
     , incorporates and includes numerous other documents
     that have not been presented to the Court or referenced
     by Plaintiffs; (3) the Commission Report, while

                                  9
     insightful, is not central to the Plaintiffs' claims;
     and (4) the other documents contained on the website
     referenced in Defendants' Motion are not even
     mentioned by Plaintiffs in their complaint.

Although the plaintiffs rely on the Final Report in their

complaints, certainly the report alone is not central to their

claims.    Indeed, it is much more central to the University

Officials’ defenses.    The plaintiffs rely on substantial, other

evidence to support their claims.1    Consequently, the district

court’s first error was going outside the plaintiffs’ complaints

and considering the Final Report.     Even if the Final Report fell

under the Collins exception, the district court failed to

construe the plaintiffs’ factual allegations in the light most

favorable to the plaintiffs.

         Construing the Allegations in the Plaintiffs’ Favor

     Although this Court has never explicitly adopted the state-

created danger theory, the Court set out the elements of a state-

created danger cause of action in Johnson v. Dallas Independent

School District, 38 F.3d 198 (5th Cir. 1994).     In Johnson, the

Court explained that a plaintiff must show the defendants used

their authority to create a dangerous environment for the

plaintiff and that the defendants acted with deliberate



     1
      Although the Self plaintiffs and Comstock plaintiffs did
not specifically object to the Collins exception, those
plaintiffs presented substantial summary judgment evidence that
placed the district court on notice that they were relying on
much more than the Final Report.

                                 10
indifference to the plight of the plaintiff.     See Johnson, 38

F.3d at 201.   Later, the Court explained what is required to

establish deliberate indifference.   In Piotrowski v. City of

Houston, the Court explained that to establish deliberate

indifference, the plaintiff must show the “environment created by

the state actors must be dangerous; they must know it is

dangerous; and . . . they must have used their authority to

create an opportunity that would not otherwise have existed for

the third party's crime to occur.”   Piotrowski v. City of

Houston, 237 F.3d 567, 585 (5th Cir. 2001)(quoting Johnson v.

Dallas Indep. Sch. Dist.).   Even a cursory review of the

complaints shows the plaintiffs pleaded facts to establish

deliberate indifference.

     The plaintiffs filed a very similar complaint in each of the

underlying lawsuits.   In the complaints, the plaintiffs discussed

how the bonfire grew over the years from a pile of burning trash

to a structure weighing over 3 million pounds.    The plaintiffs

asserted that the defendants were well aware of the dangers posed

by the construction of the bonfire stack and that it had been

characterized by one of the University Officials as the “most

serious risk management activity at the University.”    The

plaintiffs further asserted that:

     The Defendants however, did not use their control to
     see that the Bonfire stack was built in a safe manner.
     Instead, they allowed the Bonfire to grow into a
     massive, complex and dangerous structure. The

                                11
     Defendants, through their action and inaction, created
     a terrible peril that clearly could not, and should
     not, have been designated and built solely by students.

The plaintiffs claimed that the University Officials “created

this dangerous condition.   They knew it was dangerous.     Despite

that, they like ostriches, put their heads in the sand and

pretended the peril did not exist.”

     The plaintiffs explained that the defendant had a vested

interest in keeping their heads in the sand and not exercising

supervision over the bonfire because they “used the Bonfire

experience and tradition as a huge marketing tool to lure

prospective students to A&M as well as to secure millions of

dollars in donations from alumni.”    The plaintiffs went on to

claim that the University Officials “actively encouraged and

enticed students and alumni to work on the Bonfire stack while

they turned a blind eye to the peril.”

     In stating their section 1983 claims, the plaintiffs

included the language “deliberate indifference” to describe a

particular University Official’s conduct.    Although the

plaintiffs relied on the Final Report for their characterization

of the danger posed by the bonfire, the introductory paragraph of

five of the complaints makes it clear that the plaintiffs rely on

more than the Final Report.   In that paragraph, the plaintiffs

allege that “despite clear and overwhelming evidence of their

culpability, including, but not limited to, the independent



                                12
Bonfire Commission’s (“Commission”) Report, the Defendants have

failed to take or accept any responsibility whatsoever.”(emphasis

added).

     If these allegations were construed in the light most

favorable to the plaintiff, the district court should have

determined the plaintiffs had pleaded sufficient factual

allegations to show the bonfire construction environment was

dangerous, the University Officials knew it was dangerous, and

the University Officials used their authority to create an

opportunity for the resulting harm to occur.   As a result, the

district court should have concluded that the plaintiffs stated a

section 1983 claim under the state-created danger theory.

     If the district court was going to consider the Final

Report, the court should have converted the motion to dismiss to

a motion for summary judgment, given the parties notice, and then

considered all of the evidence presented.2   See FED. R. CIV. P.


     2
      Apparently, most of the plaintiffs saw the hand-writing on
the wall. In their responses to the defendants' motions to
dismiss, the Scanlan plaintiffs, the Breen plaintiffs, the Kimmel
plaintiffs, and Plaintiff Bill Davis objected to the defendants'
reliance on the Final Report. In particular, these plaintiffs
asserted that because the defendants were relying on facts and
documents not contained within the pleadings, the Court must
convert the motion to dismiss to a motion for summary judgment,
and asserted that they were entitled to discover evidence central
to their claims before the Court ruled on the motion to dismiss.
Although the Self plaintiffs and the Comstock plaintiffs did not
make this particular objection, they presented substantial
summary judgment evidence that placed the district court on
notice that plaintiffs were relying on much more than the Final
Report.

                               13
12(b)(6).   Had the district court done that, the court would have

been faced with the questions of fact the evidence presents.

Indeed, the introductory paragraphs of five complaints clearly

indicate the plaintiffs are relying on more than the Final Report

as evidence for their claims.

     By simply adopting the Final Report as the basis for

determining the University Officials did not act with deliberate

indifference, the district court deferred to a defendant-created

commission rather than presenting the questions of material fact

to a trier of fact.   Whether deliberately delegating the

construction of the bonfire stack to students the University

Officials allegedly knew were not qualified to handle such a

dangerous project, and whether deliberately providing no

supervision to students in building the bonfire even though they

knew the students were not qualified to build the stack,

constituted deliberate indifference presents fundamental

questions of material fact.   Oddly, the district court

acknowledged in a footnote that the existence of deliberate

indifference is often a factual determination, but stated

     because the Final Report affirmatively discloses that
     the University Officials in this case lacked the
     requisite culpability with respect to the alleged
     violation of the Bonfire victims’ constitutional
     rights, it is not only appropriate, but mandatory in
     this instance to conclude that the University Officials
     failed to act with deliberate indifference, as a matter
     of law.

Although the district court stated in its orders that “the


                                14
Parties have accepted the Final Report,” most of the plaintiffs

objected to the district court’s reliance on the Final Report in

their responses to the defendants' motions for summary judgment.

In particular, the Scanlan plaintiffs, the Breen plaintiffs, the

Kimmel plaintiffs, the Self plaintiffs, and Plaintiff Bill Davis

complained:

     The Defendants assert that the Plaintiffs have accepted
     the Commission's final [sic] Report and findings.
     (State's Brief, p. 2.) That statement is untrue and
     the Defendants have cited no support for that position.
     The Plaintiffs, however, are entitled to rely on
     portions of the Report as admissions by the Defendants
     as it is essentially an A&M report and has been adopted
     by the Defendants.

Certainly, reasonable minds could differ about the Final Report’s

conclusions about the University Officials’ roles in the collapse

of the bonfire stack.   If all of the summary judgment evidence

presents genuine issues of material fact, those roles should be

decided by a trier of fact, not the defendants themselves.

Consequently, the district court erred because it went outside

the complaints and did not construe the plaintiffs’ allegations

in favor of the plaintiffs.

                              Conclusion

     Because the district court erred in dismissing the

plaintiffs’ claims against the University Officials, the Court

REVERSES the district court’s judgments and REMANDS the cases to

the district court for further proceedings consistent with this

opinion.

                                  15
REVERSED and REMANDED.




                         16
