                                                 United States Court of Appeals
                                                          Fifth Circuit
               UNITED STATES COURT OF APPEALS
                    For the Fifth Circuit
                                                      FILED
                                                     April 24, 2007

                                                Charles R. Fulbruge III
                        No. 04-40712
                                                        Clerk


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; ET AL.,
                                                    Defendants,

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

                     Consolidated with

                        No. 04-40713

JAMES KIMMEL, as representative of the Estate of Lucas
Kimmel (deceased); 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 official
capacity; RAY BOWEN, in his individual capacity; WILLIAM L.
KIBLER, in his individual capacity; JOHN J. KOLDUS, III, in
his individual capacity,
                                        Defendants-Appellees.

                     Consolidated with
                          04-40714

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; JOHN J. KOLDUS, III, in
his individual capacity,
                                        Defendants-Appellees.

                     Consolidated with
                          04-40715

HOWARD SCANLAN; DENISE SCANLAN; LAUREN N. T. SCANLAN,
                                       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; WILLIAM L.
KIBLER, in his individual capacity; JOHN J. KOLDUS, II, in
his individual capacity,
                                        Defendants-Appellees.

                     Consolidated with
                          04-40780

JOHN ANDREW COMSTOCK; 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; WILLIAM L. KIBLER, in his individual
capacity; JOHN J. KOLDUS, III, in his individual capacity,
                                        Defendants-Appellees.

                      Consolidated with
                           04-40812

JAQUELYNN 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; PHILLIP MCCLAIN, ANDREA
HEARD, Individually and as Administratrix of the Estate of
Christopher Lee Heard, Deceased; LESLIE G. HEARD; GREGORY
ANTHONY POWELL, Individually and as Administrator of the
Estate of Chad A. Powell, Deceased; BEVERLY JILL POWELL;
MATTHEW LYNN ROBBINS; DOMINIC M. V. BRAUS; NANCY BRAUS,
                                       Plaintiffs-Appellants,

                             VERSUS


RAY M. BOWEN; J. MALON SOUTHERLAND; WILLIAM KIBLER; RUSSELL
W. THOMPSON; JOHN J. KOLDUS, III; M. T. HOPGOOD, JR., Major
General; DONALD J. JOHNSON; ZACK COAPLAND; KEVIN JACKSON;
JAMES R. REYNOLDS; ROBERT HARRY STITELER, JR.; MICHAEL DAVID
KRENZ,
                                        Defendants-Appellees.


        Appeals from the United States District Court
              For the Southern District of Texas



Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

    These   consolidated   appeals    arise   out   of   the   violent

collapse of the Texas A&M University bonfire stack on November

18, 1999, which killed 12 students and injured 27 others.          In

                               1
these appeals, plaintiffs seek to overturn the district court’s

grant of summary judgment under Federal Rule of Civil Procedure

56 dismissing their 42 U.S.C. § 1983 claims against University

officials for damages resulting from that tragic event.       In

previous appeals, a panel of this court, in Scanlan v. Texas

A&M University, 343 F.3d 533 (5th Cir. 2003), reversed the

district court’s dismissal of those claims under Rule 12(b)(6).

Upon remand after that decision, the district court granted

summary judgment in favor of defendants, holding that the

University officials were entitled to qualified immunity from

suit.   See Breen v. Southerland, No. 3:01-CV-00670, slip op.

(S.D. Tex. May 21, 2004).       This second group of appeals

followed.

                   I.   Procedural Background

    In the wake of the 1999 Texas A&M bonfire collapse, the

plaintiffs, including the estates of deceased victims, injured

survivors, and relatives of affected students, filed suits

against Texas A&M University and certain University officials

in the United States District Court for the Southern District

of Texas.1 Plaintiffs asserted, inter alia, that the University


    1
      The defendants in the cases on appeal before us are Dr. Ray
Bowen, Dr. Zack Coapland, Major General Marvin Hopgood, Jr., Dr.
Kevin Jackson, Brigadier General Donald Johnson, Dr. William

                               2
and its officials were liable to plaintiffs under 42 U.S.C. §

1983 for violating the students’ substantive due process rights

to bodily integrity.        Plaintiffs’ section 1983 claims were

predicated on a state-created danger theory—i.e., that the

University and its officials created a dangerous environment

for students and were deliberately indifferent to their safety

by encouraging the unqualified and inexperienced students to

build the enormous bonfire stack without adequate supervision

by University personnel.           Plaintiffs also asserted several

state law causes of action against the various defendants.

     Defendants     moved   to     dismiss    plaintiffs’   actions    for

failure to state a claim, and, in the alternative, for summary

judgment.     For reasons assigned in an opinion dated July 23,

2002, the district court granted the defendants’ motions to

dismiss and dismissed plaintiffs’ complaints in their entirety.

See Kimmel v. Texas A&M Univ., 267 F. Supp. 2d 646 (S.D. Tex.

2002).   First, the district court held that plaintiffs’ claims

against Texas A&M University were suits against the state and

were therefore barred by sovereign immunity.            Id. at 653-54.

No   appeal   was   taken   from    that     holding.   Second,   as   to



Kibler, Dr. John Koldus, III, Michael Krenz, James Reynolds, Dr. J.
Malon Southerland, Robert Stiteler, Jr., and Russell Thompson.

                                     3
plaintiffs’         section    1983   claims     against    the     University

officials, the district court held that plaintiffs failed to

state a cognizable substantive due process                   claim    because

plaintiffs’ allegations were insufficient to establish that the

officials acted with deliberate indifference.                Id. at 656-58.

In   analyzing the sufficiency of plaintiffs’ section 1983

claims, the district court considered not only the allegations

of plaintiffs’ complaints, but also the findings of the Final

Report      of     the   Special   Commission    on   the   1999    Texas   A&M

Bonfire,2 although that document was not incorporated by or

otherwise made part of plaintiffs’ complaints.               Kimmel, 267 F.

Supp. 2d at 654.            Finally, the district court declined to

exercise supplemental jurisdiction over plaintiffs’ state law

claims and dismissed them without prejudice.                Id. at 658-59.

       Upon plaintiffs’ first appeal in this case, a panel of

this       court    reversed   the    district    court’s    Rule    12(b)(6)

dismissal of         plaintiffs’ section 1983 claims against the

University officials.          Scanlan, 343 F.3d at 537-39.          The court

first held that the district court erred by considering, for



       2
      The Final Report documented the findings of a special
commission convened by the president of the University to
investigate the collapse of the bonfire stack. See Scanlan, 343
F.3d at 535.

                                        4
purposes of the defendants’ Rule 12(b)(6) motions to dismiss,

the facts stated in the Final Report.3            The Scanlan court then

considered whether the plaintiffs’ allegations were sufficient

to state a claim under 42 U.S.C. § 1983. The court noted that,

although this circuit had never adopted the state-created

danger theory, it had previously recognized that a plaintiff

seeking to recover under such a theory must show that (1) “the

defendants    used   their   authority       to    create   a   dangerous

environment for the plaintiff;” and (2) “the defendants acted

with deliberate indifference to the plight of the plaintiff.”

Id.   at   537-38.    The    court       found    that,   construing   the

allegations in the light most favorable to the plaintiffs, the

complaints stated a cause of action under the state-created

danger theory because they averred that: (1) the bonfire

construction environment was dangerous; (2) the University

officials knew that it was dangerous and would create an

opportunity for the resulting harm to occur; and (3) the

officials were deliberately indifferent to the students’ safety



      3
      The court held that the district court erred in considering
the facts stated in the Final Report because the Final Report was
not attached to the defendants’ motions to dismiss, the plaintiffs
objected to its being considered, it was not central to plaintiffs’
claims, and the plaintiffs relied on other evidence in support of
their claims. Scanlan, 343 F.3d at 536-37.

                                     5
because they delegated the construction of the bonfire stack

to students, whom they knew were not qualified to handle such

a dangerous project, failed to provide adequate supervision,

and ignored the danger that the stack posed to the students

working on it.      Id. at 538.   Accordingly, the Scanlan court

reversed   the    district   court’s      judgment    dismissing   the

plaintiffs’ section 1983 claims and remanded the case to the

district court for further proceedings.

    On remand, the University officials renewed their motions

for summary judgment.      The district court granted the motions

on the ground that the officials were entitled to qualified

immunity from suit.    See Breen, No. 3:01-cv-00670, slip op. at

3-11.   The district court found that, although the summary

judgment record contained material factual disputes concerning

both whether defendants’ conduct created or increased the

danger to the students involved in construction of the bonfire

stack   and      whether   defendants      acted     with   deliberate

indifference, the defendants were nevertheless entitled to

qualified immunity because their conduct was not objectively

unreasonable in light of clearly established Fifth Circuit law

at the time of their actions.         Id., slip op. at 6-11.




                                  6
                       II.    Standard of Review

     Summary judgment is proper where there is no genuine issue

of material fact and the moving party is entitled to judgment

as a matter of law.     Fed. R. Civ. P. 56(c). This court reviews

a   grant    of   summary    judgment   de   novo,   applying   the    same

standards as those applicable in the district court.                  Baton

Rouge Oil & Chem. Workers Union v. Exxon Mobil Corp., 289 F.3d

373, 376 (5th Cir. 2002). Ordinarily, on summary judgment, the

moving party has the initial burden of establishing that there

are no issues of material fact and that it is entitled to

judgment in its favor as a matter of law.                 See Rivera v.

Houston Indep. Sch. Dist., 349 F.3d 244, 246-47 (5th Cir.

2003).      If the moving party meets this burden, the burden then

shifts to the non-moving party to point to evidence showing

that an issue of material fact exists.               Id. at 247.   When a

defendant invokes qualified immunity, however, the burden

shifts to the plaintiff to rebut the applicability of the

defense.      See McClendon v. City of Columbia, 305 F.3d 314, 323

(5th Cir. 2002) (en banc) (citing Bazan ex rel. Bazan v.

Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001)).                      In

determining whether summary judgment is appropriate, we view

all of the evidence in the light most favorable to the non-

                                    7
moving party and draw all reasonable inferences in its favor.

See Coleman v. Sch. Bd. of Richland Parish, 418 F.3d 511, 515-

16 (5th Cir. 2005).

              III.    Section 1983 and Qualified Immunity

     Section 1983 provides a private right of action for

damages   to    individuals    who   are   deprived   of   “any   rights,

privileges, or immunities” protected by the Constitution or

federal law by any person acting under the color of state law.

42   U.S.C.    §     1983.   Notwithstanding   section     1983’s   broad

language, state officials performing discretionary functions

are often protected from liability by the doctrine of qualified

immunity, which shields such officials from suit “‘insofar as

their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.’”         McClendon, 305 F.3d at 322 (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)).            To determine whether

an official is entitled to qualified immunity from a suit

alleging a constitutional violation, we conduct a familiar two-

step inquiry.         First, we must ask whether the plaintiff has

alleged facts to establish that the official violated the

plaintiff’s constitutional rights.          Hope v. Pelzer, 536 U.S.

730, 736 (2002) (“The threshold inquiry a court must undertake

                                     8
in   a   qualified   immunity      analysis       is   whether   plaintiff’s

allegations, if true, establish a constitutional violation.”);

Saucier v. Katz, 533 U.S. 194, 201 (2001) (“A court required

to rule upon the qualified immunity issue must consider, then,

this threshold question:          Taken in the light most favorable to

the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?”). Whether

the facts establish a violation of a constitutional right is

determined with reference to current law.                 See Atteberry v.

Nocona    Gen.    Hosp.,    430   F.3d     245,    253   (5th    Cir.   2005);

McClendon, 305 F.3d at 323. If the facts do not establish that

the defendant violated the plaintiff’s constitutional rights,

we need not inquire further.              See Saucier, 533 U.S. at 201.

If they do, the defendant is still entitled to qualified

immunity unless the court finds that the defendant’s conduct

was objectively unreasonable in light of clearly established

law at the time of the state actions at issue.              See McClendon,

305 F.3d at 323.

             A.    Violation of a Constitutional Right

     Plaintiffs      here   assert    that    defendants        violated   the

students’ rights to bodily integrity under the substantive

component of the Fourteenth Amendment’s Due Process Clause by

                                      9
creating      or    exacerbating       the    dangerous    situation    that

ultimately injured the students.                Specifically, plaintiffs

assert that defendants knew that building the bonfire stack,

a    recognized     and   sanctioned        University    activity,    was    a

dangerous activity and that the student leaders were not

qualified to design and supervise its construction. Plaintiffs

allege      that,   notwithstanding          that    knowledge,    defendants

deliberately delegated the design and construction process to

the students and deliberately decided not to provide the

students with or require that they have adequate supervision.

Plaintiffs argue that defendants’ actions give rise to a

cognizable substantive due process claim under the state-

created danger theory.

      1.    Substantive Due Process and State-Created Danger

      The    Due    Process   Clause     of    the    Fourteenth   Amendment

provides that “[n]o State shall . . . deprive any person of

life, liberty, or property, without due process of law.”                U.S.

Const. amend. XIV, § 1.          The Supreme Court has long recognized

that the Due Process Clause is more than a guarantee of

procedural fairness and “cover[s] a substantive sphere as well,

‘barring certain government actions regardless of the fairness

of   the    procedures    used    to   implement      them.’”      County    of


                                       10
Sacramento v. Lewis, 523 U.S. 833, 840 (1998) (quoting Daniels

v.   Williams,   474   U.S.    327,    331   (1986)).      The   reach    of

substantive due process is limited, however, and it protects

against only the most serious of governmental wrongs.                    The

Court has emphasized that “because guideposts for responsible

decisionmaking in this uncharted area are scarce and open-

ended,” courts should be “reluctant to expand the concept of

substantive due process.”           Collins v. City of Harker Heights,

503 U.S. 115, 125 (1992).

     When a plaintiff complains of abusive executive action,

substantive due process is violated “only when [the conduct]

‘can properly be characterized as arbitrary, or conscience

shocking, in a constitutional sense.’”           Lewis, 523 U.S. at 847

(quoting Collins, 503 U.S. at 128).           Though the meaning of the

term “conscience shocking” is necessarily indeterminate, the

Lewis court provided some guidance for lower courts to follow.

Negligent acts, for example, are insufficient to trigger a

substantive due process violation.            Id. at 849 (“[L]iability

for negligently inflicted harm is categorically beneath the

threshold   of   constitutional        due   process.”).     Conversely,

conduct intended to cause injury is, of course, most likely to

violate due process.          Id.     For conduct within the “middle


                                      11
range” of “something more than negligence but ‘less than

intentional   conduct,   such    as     recklessness     or    ‘gross

negligence,’’” the inquiry is more difficult and requires a

searching inquiry into the facts and circumstances of the

particular case in light of the right asserted.        Id. at 849-50

(quoting Daniels, 474 U.S. at 331); see also id. at 850

(“Deliberate indifference that shocks in one environment may

not be so patently egregious in another.”).

    While it is clear that individuals have a substantive due

process right to be free from state-occasioned bodily harm, it

is equally clear that the Constitution does not, as a general

matter, impose upon state officials a duty of care to protect

individuals from any and all private harms.             DeShaney v.

Winnebago County Dep’t of Soc. Servs., 489 U.S. 189, 196-97

(1989) (“As a general matter, then, we conclude that a State’s

failure to protect an individual against private violence

simply does not constitute a violation of the Due Process

Clause.”).    The   DeShaney    court   recognized     two    possible

exceptions to this general rule, however.       First, the Court

stated that the Constitution imposes upon the state a duty of

care towards individuals who are in the custody of the state.

Id. at 200 (“[W]hen the State takes a person into its custody


                                12
and holds him there against his will, the Constitution imposes

upon it a corresponding duty to assume some responsibility for

his safety and well-being.”).        Second, some language from

DeShaney has been read to suggest that state officials also

have a duty to protect individuals from harm when their actions

created or exacerbated a danger to the individual.      See id. at

201 (noting that, although the state may have been aware of the

dangers faced by the plaintiff, “it played no part in their

creation, nor did it do anything to render him more vulnerable

to them”).

     This latter exception mentioned in DeShaney is often

recognized as the primary source4 for what has been termed the

state-created danger theory. A number of courts, including the

majority of the federal circuits, have adopted the state-

created danger theory of section 1983 liability in one form or

another.5    Prior to the Scanlan decision in the present group

     4
      But cf. Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061
n.1 (9th Cir. 2006) (asserting that “the ‘state-created danger’
doctrine predates DeShaney” and that DeShaney is “more reasonably
understood as an acknowledgment and preservation of the doctrine,
rather than its source”).
     5
      See, e.g., Butera v. District of Columbia, 235 F.3d 637, 651
(D.C. Cir. 2001) (holding that “under the State endangerment
concept, an individual can assert a substantive due process right
to protection by the District of Columbia from third-party violence
when . . . officials affirmatively act to increase or create the
danger that ultimately results in the individual’s harm”);

                                13
of cases, this court had often expressed reluctance to embrace

the state-created danger theory, while noting its adoption by

other courts.   Although this court discussed the theory in no




Kallstrom v. City of Columbus, 136 F.3d 1055, 1066-67 (6th Cir.
1998) (recognizing state-created danger claim where officials
released personal information about undercover officers to the
suspects whom the officers were investigating); Kneipp v. Tedder,
95 F.3d 1199, 1211 (3d Cir. 1996) (“[W]e hold that the
state-created danger theory is a viable mechanism for establishing
a constitutional claim under 42 U.S.C. § 1983.”); Uhlrig v. Harder,
64 F.3d 567, 572 (10th Cir. 1995) (stating that “danger creation”
theory is a recognized exception to DeShaney rule); Reed v.
Gardner, 986 F.2d 1122, 1127 (7th Cir. 1993) (holding that
“officers may be subject to suit under section 1983 if they
knowingly and affirmatively create a dangerous situation for the
public and fail to take reasonable preventative steps to diffuse
that danger”); Dwares v. City of New York, 985 F.2d 94, 98-99 (2d
Cir. 1993) (recognizing state-created danger claim where police
officers allegedly conspired with group of “skinheads” to permit
them to assault demonstrators); Freeman v. Ferguson, 911 F.2d 52,
54-55 (8th Cir. 1990) (recognizing state-created danger claim where
police chief allegedly directed officers to ignore victim’s pleas
for assistance); Wood v. Ostrander, 879 F.2d 583, 589-90 (9th Cir.
1989) (recognizing state-created danger claim where police officers
impounded vehicle, arrested driver, and left passenger stranded on
roadside in high crime area).
     The First and Fourth Circuits have discussed the state-created
danger theory, but those courts have neither accepted nor rejected
it as a theory of recovery. See Velez-Dias v. Vega-Irizarry, 421
F.3d 71, 80 (1st Cir. 2005) (“‘This court has, to date, discussed
the state created danger theory, but never found it actionable on
the facts alleged.’”) (quoting Rivera v. Rhode Island, 402 F.3d 27,
35 (1st Cir. 2005)); Pinder v. Johnson, 54 F.3d 1169, 1175-76 (4th
Cir. 1995) (en banc). The Eleventh Circuit at one point recognized
the state-created danger theory, see Cornelius v. Town of Highland
Lake, 880 F.2d 348, 354-55 (11th Cir. 1989), but it appears to have
since repudiated the doctrine.     See White v. Lemacks, 183 F.3d
1253, 1259 (11th Cir. 1999) (“[T]he ‘special relationship’ and
‘special danger’ doctrines applied in our decision in Cornelius are
no longer good law, having been superseded by the standard employed
by the Supreme Court in Collins.”).

                                14
fewer than 11 published decisions prior to Scanlan,6 it had not

formally approved of the theory or applied it to uphold a

plaintiff’s complaint against pretrial motions or affirm an

award of damages.    See, e.g., Morin, 309 F.3d at 321 (noting

that Fifth Circuit had “neither adopted nor rejected the state

created danger theory”); McKinney, 309 F.3d at 313 (same).

This court had, however, recognized and described the essential

elements of such a claim for the purpose of demonstrating that

the plaintiffs’ complaints in particular cases failed to state

claims under the theory.       In doing so, this court explained

that to recover on a state-created danger claim, the plaintiff

must show that the harm to the plaintiff resulted because (1)

the defendant’s actions created or increased the danger to the

plaintiff;   and   (2)   the   defendant   acted   with   deliberate

indifference toward the plaintiff.     See, e.g., Morin, 309 F.3d

at 321-22; McKinney, 309 F.3d at 313.         This court had also

    6
      See Morin v. Moore, 309 F.3d 316, 321-24 (5th Cir. 2002);
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 313-14 (5th
Cir. 2002); McClendon, 305 F.3d at 324-26; Piotrowski v. City of
Houston, 237 F.3d 567, 583-85 (5th Cir. 2001) (“Piotrowski II”);
Saenz v. Heldenfels Bros., Inc., 183 F.3d 389, 391-92 (5th Cir.
1999); Randolph v. Cervantes, 130 F.3d 727, 731 (5th Cir. 1997);
Doe v. Hillsboro Indep. Sch. Dist., 113 F.3d 1412, 1415 (5th Cir.
1997) (en banc); Piotrowski v. City of Houston, 51 F.3d 512, 517
(5th Cir. 1995) (“Piotrowski I”); Johnson v. Dallas Indep. Sch.
Dist., 38 F.3d 198, 200-02 (5th Cir. 1994); Leffall v. Dallas
Indep. Sch. Dist., 28 F.3d 521, 530-32 (5th Cir. 1994); Salas v.
Carpenter, 980 F.2d 299, 309-10 (5th Cir. 1992).

                                 15
stated   that   the   state-created   danger   theory   requires   an

identifiable victim. See Morin, 309 F.3d at 322-23; Saenz, 183

F.3d at 392.

2.   Scanlan’s Recognition of the State-Created Danger Theory

     In most of the cases in which panels of this court had

discussed the state-created danger theory, the panel, in

effect, pretermitted whether to embrace or reject the theory,

but held simply that the facts of the particular case were

insufficient to state a claim under such a theory because the

plaintiff did not adequately allege that the defendants created

the danger,7 that the defendants acted with the requisite

culpability,8 that the plaintiff was an identifiable victim,9

or some combination thereof.     In Scanlan, however, the panel

reversed the district court’s dismissal of plaintiffs’ section

1983 claims in the present group of cases on the ground that

plaintiffs had sufficiently alleged all of the elements of a

state-created danger claim.     See Scanlan, 343 F.3d at 537-39.

     Given that disposition, the question naturally arises

     7
      See Morin, 309 F.3d at 324; McKinney, 309 F.3d at 314;
Piotrowski II, 237 F.3d at 584-85; Johnson, 38 F.3d at 202; Salas,
980 F.2d at 309.
     8
      See McClendon, 305 F.3d at 326; Piotrowski II, 237 F.3d at
585; Johnson, 38 F.3d at 201-02; Leffall, 28 F.3d at 531.
     9
      See Morin, 309 F.3d at 322-23; Saenz, 183 F.3d at 391-92.

                                16
whether Scanlan constitutes recognition, approval, and adoption

for use by this court of the state-created danger theory.

Although the Scanlan opinion did not expressly announce that

it was adopting the state-created danger theory, it explicitly

recited the previously recognized essential elements of a

state-created danger claim, applied them to the pleadings, and

decided that the plaintiffs had stated a claim upon which

relief could be granted under the theory.        See id.   Unlike the

earlier cases discussed above, in which this court declined to

pass upon the validity of the state-created danger theory

because the plaintiff’s allegations did not establish the

necessary   elements   of   such    a   claim,   the   Scanlan   court

explicitly found that plaintiffs had alleged facts sufficient

to show both (1) that the defendants created or increased the

danger to the students; and (2) that the defendants acted with

deliberate indifference. See id. at 538 (“[T]he district court

should have determined [that] 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




                                   17
to create an opportunity for the resulting harm to occur.”).10

     Thus, the Scanlan panel, unlike earlier panels of this

court, was squarely faced with complaints that sufficiently

alleged the elements of a state-created danger claim, and,

therefore, stated claims under that theory.     Consequently, the

Scanlan court, by holding that the district court erred in

dismissing   plaintiffs’   section    1983   claims,   necessarily

recognized that the state-created danger theory is a valid

legal theory.   Were that not the case, the Scanlan court would

have been required to affirm the district court’s dismissal of

plaintiffs’ complaints, notwithstanding the fact that they

sufficiently alleged the elements of a state-created danger

claim.    Under Rule 12(b)(6), federal courts are required to

dismiss claims based upon invalid legal theories even though

they might otherwise be well-pleaded.11


     10
      The Scanlan opinion does not discuss the additional
requirement that the risk of harm be to an identifiable victim,
probably because defendants did not argue that the affected
students were not identifiable victims. Defendants do not argue
that plaintiffs have failed to establish that requirement in these
appeals.
     11
      As the Supreme Court stated in Neitzke v. Williams, 490 U.S.
319 (1989), Rule 12(b)(6) requires dismissal whenever a plaintiff’s
claim is based on an invalid legal theory:

          Nothing in Rule 12(b)(6) confines its sweep to
          claims    of   law    which   are    obviously
          insupportable. On the contrary, if as a matter

                                18
     Since   the   Scanlan   decision,     the   panels    in   three

subsequent, unrelated cases have issued opinions that contained

statements suggesting that Scanlan did not adopt the state-

created danger theory.   See Rios v. City of Del Rio, 444 F.3d

417, 422-23 (5th Cir. 2006) (suggesting that Scanlan did not

adopt state-created danger theory because “nowhere in the

opinion does the court expressly purport to approve that

theory”); Beltran v. City of El Paso, 367 F.3d 299, 307 (5th

Cir. 2004) (citing Scanlan for the proposition that “[t]his

court has consistently refused to recognize a ‘state-created

danger’ theory of § 1983 liability even where the question of

the theory’s viability has been squarely presented”); Rivera

v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 n.5 (5th Cir.

2003) (noting of Scanlan that “[d]espite remanding that case

to the district court for further proceedings, we did not

recognize the state created danger theory”).         In each of

those cases, however, as in so many of this court’s other



          of law “it is clear that no relief could be
          granted under any set of facts that could be
          proved consistent with the allegations,” . . .
          a claim must be dismissed, without regard to
          whether it is based on an outlandish legal
          theory or on a close but ultimately unavailing
          one.

Id. at 327 (internal citations omitted).

                               19
state-created danger cases, the court found that, assuming,

arguendo, the validity of the state-created danger theory, the

plaintiff’s allegations did not establish the elements of such

a claim.   See Rios, 444 F.3d at 423-25; Beltran, 367 F.3d at

307-08; Rivera, 349 F.3d at 249-50.      Thus, nothing in those

cases turned on whether the state-created danger theory is or

is not valid in this circuit.    Accordingly, the statements in

those cases pertaining to Scanlan were unnecessary to their

holdings and, as such, constituted only non-binding dicta.12

     The Scanlan panel’s clearly implied recognition of state-

created danger as a valid legal theory applicable to the case

is the law of the case with respect to these further appeals

in these same cases now before this panel.      Under the law of

the case doctrine, the factual findings and legal conclusions



     12
      As Judge Posner noted, there are numerous and sometimes
inconsistent definitions of dictum, but as a practical matter, a
court can determine whether a particular passage in an earlier
opinion is dictum by considering factors such as whether “the
passage was unnecessary to the outcome of the earlier case and
therefore perhaps not as fully considered as it would have been
were it essential to the outcome,” or whether “the passage was not
an integral part of the earlier opinion, and so it was a redundant
part of that opinion and, again, may not have been fully
considered.” United States v. Crawley, 837 F.2d 291, 292 (7th Cir.
1988). Under either of these formulations, the statements from
Rios, Beltran, and Rivera suggesting that Scanlan does not
represent an acceptance of the state-created danger theory, which,
as noted above, were unnecessary to the outcome or analysis in
those cases, clearly qualify as dicta.

                                20
of a panel of this court continue to govern throughout that

case;    we    will   not   ordinarily   revisit   those    findings   or

conclusions on subsequent appeals.         See Free v. Abbott Labs.,

Inc., 164 F.3d 270, 272 (5th Cir. 1999). The doctrine “applies

not only to issues decided explicitly, but also to everything

decided       ‘by   necessary   implication.’”     Office    of   Thrift

Supervision v. Felt (In re Felt), 255 F.3d 220, 225 (5th Cir.

2001) (citing Browning v. Navarro, 887 F.2d 553, 556 (5th Cir.

1989)).    Although the law of the case does not absolutely bind

later panels, we will generally apply it unless (1) the

evidence is materially different on the later appeal; (2) there

has been a change in controlling law on the applicable issues;

or (3) the initial decision was clearly erroneous and adhering

to it would result in manifest injustice.           Free, 164 F.3d at

272.

       Because the necessary implication of the Scanlan court’s

decision is that the state-created danger theory is, indeed,

a valid basis for a claim on the set of facts alleged in the

complaints in these cases, that clear implied holding is the

law of the case in the present group of appeals.            Moreover, as

none of the exceptions to the law of the case doctrine even

arguably applies here, this panel cannot justifiably revisit

                                    21
that conclusion.

     3. Did the University Officials’ Conduct Violate the
    Students’ Substantive Due Process Rights in this Case?

     Because       Scanlan      established    that        plaintiffs      have    a

substantive due process right to be free from bodily injuries

caused   by   state-created        dangers    on     the    facts       alleged   in

plaintiffs’ complaints, we next must determine whether, viewing

the summary judgment evidence in the light most favorable to

plaintiffs, there is an issue of material fact as to whether

the defendants’ conduct violated that right.                    See Porter v.

Ascension Parish Sch. Bd., 393 F.3d 608, 613 (5th Cir. 2004)

(“When reviewing a grant of summary judgment based on qualified

immunity,     we    must     first      determine    whether        a    plaintiff

successfully       alleged      facts    showing     the     violation       of   a

constitutional right by state officials, and whether there is

a   genuine    issue       of    material     fact    that     the       violation

occurred.”).        The district court held that issues of fact

precluding     summary       judgment     existed     on     both       prongs    of

plaintiffs’ state-created danger claims.                     As to the first

prong—that defendants created or increased the danger to the

plaintiffs—the district court found as follows:

            Plaintiffs ultimately allege that the
            University Officials increased the danger

                                        22
         to the victims by affirmatively delegating
         technical      and    complex      Bonfire
         responsibilities to unqualified students
         without adequate supervision or guidelines.
         Defendants maintain that they “passively
         continued the status quo” and merely
         permitted students to do what they wanted.
         The resolution of these polar viewpoints
         requires examination of literally hundreds
         of facts.   It would be inappropriate and
         virtually impossible for the Court to
         decide as a matter of law and based on the
         record now before the court whether the
         state actors increased the danger to the
         Bonfire victims.

Breen, No. 3:01-cv-00670, slip op. at 6-7.   With respect to

deliberate indifference, the district court took its guidance

from Scanlan:

         In its Opinion in this case, the Fifth
         Circuit stated:      “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 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.”    Scanlan, 343 F.3d at
         539. Though this statement was made in an
         opinion disposing of Defendants’ Motion to
         Dismiss, the summary judgment evidence
         submitted since then has only muddied the
         waters further.     At this stage in the
         proceedings,    there    remain    multiple
         questions of fact as to whether Defendants
         acted with deliberate indifference.



                             23
Id., slip op. at 8.

    We agree with the district court that Scanlan essentially

disposes of this first prong of the qualified immunity inquiry.

Scanlan quite clearly held that plaintiffs’ allegations, if

proven, would state a section 1983 claim under the state-

created danger theory.         Scanlan, 343 F.3d at 539.     The Scanlan

court also, however, went on to state that the conflicting

summary judgment evidence submitted by the parties in the

district    court   presented     material   fact   issues   concerning

plaintiffs’ state-created danger claims.            See id. (“Had the

district court [converted the motion to dismiss into a motion

for summary judgment], the court would have been faced with the

questions    of   fact   the    evidence   presents.”);    id.   (noting

existence of “fundamental questions of material fact”); id.

(“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.”).             The Scanlan

court’s statements about the summary judgment evidence are

technically dicta and thus not the law of the case, but its

view of the summary judgment evidence in the record at the time

of its decision is nevertheless instructive.               Although the

parties supplemented the summary judgment record with some

                                    24
additional evidence on remand, as the district court noted, the

material   factual      disputes   identified     in    Scanlan    remain

concerning both whether defendants’ actions increased the

danger to the students and whether defendants acted with

deliberate indifference. We therefore conclude that plaintiffs

successfully   alleged     facts   showing      the    violation   of   a

constitutional right by state officials under the state-created

danger theory, and that there is a genuine issue of material

fact that the violation occurred.

                   B.    Clearly Established Law

    Defendants in section 1983 cases are nevertheless entitled

to qualified immunity from a plaintiff’s claims unless their

conduct was objectively unreasonable in light of the clearly

established law at the time of their actions.            McClendon, 305

F.3d at 323.   The district court granted defendants’ motions

for summary judgment because it found that the state-created

danger theory was not clearly established law in the Fifth

Circuit as of November 18, 1999, the date on which the bonfire

stack collapsed.

    Whether a right is clearly established depends, to a large

extent, on the level of generality at which the right in

question is defined.       McClendon, 305 F.3d at 330-31.          In the

                                   25
qualified immunity context, a constitutional right is clearly

established only if, at the time of an official’s challenged

conduct,      the   contours      of     the    right    in    question     are

“‘sufficiently       clear   that       a    reasonable       official    would

understand that what he is doing violates that right.’”                    Hope,

536 U.S. at 739 (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987)).        The essence of the clearly established law

requirement is that a defendant is entitled to “fair notice”

that    his   conduct    violates      the     plaintiff’s     constitutional

rights.    See id. at 739-40.          Thus, although the relevant right

must be defined with sufficient specificity to provide the

official with notice of the unlawfulness of his conduct, “the

term    clearly     established     does       not   necessarily    refer    to

commanding precedent that is factually on all-fours with the

case at bar, or that holds the                  very action in question

unlawful.”     Atteberry, 430 F.3d at 256-57 (internal citations

and quotation marks omitted).

       In determining whether a right is clearly established, we

are not limited to precedent from the Supreme Court or this

court.     As we have recognized, a right can become clearly

established     either    through       cases    that   constitute       binding

authority or on the basis of a consensus of persuasive cases

                                        26
from other jurisdictions.   See McClendon, 305 F.3d at 329 (“In

light of Wilson [v. Layne, 526 U.S. 603 (1999)], we must

consider both this court’s treatment of the state-created

danger theory and the status of this theory in our sister

circuits . . . .”).

    The starting point for our consideration of whether the

state-created danger theory was clearly established in a

particularized sense relevant here on or before November 18,

1999, the date of the bonfire stack’s collapse, is our 2002 en

banc decision in McClendon, which considered a state-created

danger claim arising out of an injury that occurred in 1993.

In McClendon, this court concluded that the state-created

danger theory was not clearly established law in the Fifth

Circuit in 1993.   The McClendon court first noted that this

court had only considered the state-created danger theory once

prior to 1993, in Salas v. Carpenter, 980 F.2d 299 (5th Cir.

1992), and that Salas “did not address the viability of the

state-created danger theory or define the contours of an

individual’s right to be free from state-created dangers.”

McClendon, 305 F.3d at 330.    The court therefore found that

Salas was, on its own, “certainly insufficient” to provide a

defendant in 1993 with the requisite notice that his conduct

                              27
violated the plaintiff’s substantive due process rights.               Id.

     The    McClendon   court   then     proceeded    to   consider    the

relevant authority from other circuits.              The court observed

that “six circuits had sanctioned some version of the state-

created danger theory in July of 1993” and that no circuit had,

to that point, expressly rejected the theory.              Id.   Despite

this apparent consensus, this court found that “the mere fact

that a large number of courts had recognized the existence of

a   right   to   be   free   from   state-created      danger    in   some

circumstances” was insufficient to make the theory clearly

established in the Fifth Circuit, in part because there was

little agreement among those courts as to the specific contours

of that right.    Id. at 330-32 (“[W]hile a number of our sister

circuits had accepted some version of the state-created danger

theory as of July of 1993, given the inconsistencies and

uncertainties within this alleged consensus of authorities, an

officer acting within the jurisdiction of this court could not

possibly have assessed whether his or her conduct violated this

right in the absence of explicit guidance from this court or

the Supreme Court.”).        The en banc court in McClendon also

found it significant that none of the cases from other circuits

applying the state-created danger theory had done so in a


                                    28
factual context similar to that case.     Id. at 332.

    Applying the principles of McClendon to this case, we

conclude that the state-created danger theory was not clearly

established law in this circuit, with respect to the specific

facts   here   or   otherwise,   by   November    18,   1999,   and,

accordingly, the defendants are entitled to qualified immunity

from plaintiffs’ section 1983 claims. As was the case in 1993,

the relevant date in McClendon, neither the Supreme Court nor

this court had expressly recognized the validity of the state-

created danger theory as applied to any case prior to November

1999.   Plaintiffs do not claim otherwise.       Rather, they argue

that the state-created danger theory was clearly established

in the Fifth Circuit by November 1999 because (1) between 1993

and 1999, this court discussed the state-created danger theory,

and set out the necessary elements of the theory as it had been

recognized by other circuits, on numerous occasions; and (2)

the state-created danger theory was clearly established in

certain respects in the majority of the federal circuits by

November 1999.

    In light of this court’s historical reticence towards

adopting the state-created danger theory, however, neither this

court’s discussions of the theory nor our sister circuits’


                                 29
adoption of it convinces us that a reasonable official in any

of the defendants’ shoes would have had fair notice on or

before November 18, 1999 that his conduct with respect to the

danger created by the Texas A&M bonfire stack could violate the

students’ constitutional rights.         Plaintiffs are correct that

a number of this court’s decisions prior to 1999 spelled out

the basic and essential elements that a plaintiff would need

to establish in order to state a claim under the state-created

danger theory, if it were to be adopted.               See Randolph, 130

F.3d at 731; Doe, 113 F.3d at 1415; Piotrowski I, 51 F.3d at

515-16; Johnson, 38 F.3d at 201; Leffall, 28 F.3d at 530-31.

In each of those cases, however, this court also expressly

noted that the theory had never been adopted in this circuit.

See   Randolph,   130   F.3d   at    731;    Doe,    113   F.3d   at   1415;

Piotrowski I, 51 F.3d at 515; Johnson, 38 F.3d at 201; Leffall,

28 F.3d at 530.         Because this court’s pre-November 1999

decisions evince substantial uncertainty as to the existence

of even the general right that the plaintiffs claim has been

violated,   those   decisions       cannot   be     said   to   have   given

defendants fair warning that any of their actions or omissions

with respect to the 1999 Texas A&M bonfire construction could

violate the affected students’ constitutional rights.

                                    30
       Moreover, similar to the situation in McClendon, any

consensus of the other federal circuits in adopting various

formulations of the state-created danger theory is insufficient

for this court to find that the theory was clearly established

in this circuit as applied to these cases. Although a majority

of federal circuits had approved of the state-created danger

theory in a general sense by November 18, 1999, there was not

a consensus among those courts as to the contours of the

underlying substantive due process right, see McClendon, 305

F.3d at 331, Butera, 235 F.3d at 653-54, and the plaintiffs

have not pointed to (and this court has not found) any pre-

collapse cases in which an appellate court applied the state-

created danger theory on facts even remotely analogous to the

facts of these cases.         Accordingly, we find that the adoption

of the state-created danger theory in other circuits before

November 1999 was insufficient to give the University officials

fair        notice   that   their   conduct   violated   the   students’

constitutional rights.13



       13
      Where this court has previously spoken on, and refrained from
deciding, an issue, a consensus of authority from other
jurisdictions would likely need to be particularly strong and clear
before it could support a finding that the legal principle in
question was clearly established law in this circuit.           See
McClendon, 305 F.3d at 332 n.12.

                                     31
     We therefore conclude that the state-created danger theory

was not clearly established law in the Fifth Circuit on

November 18, 1999, and defendants are entitled to qualified

immunity.14

                            IV.    Conclusion

     For   these    reasons,      we   conclude   that   defendants   are

entitled to qualified immunity from suit based on plaintiffs’

section 1983 claims, and we therefore AFFIRM the summary

judgment      of   the   district      court   dismissing   plaintiffs’

complaints.

     AFFIRMED.




     14
      As our finding that the state-created danger theory was not
clearly established in this circuit at the time of the defendants’
conduct would be the same whether or not plaintiffs established
that defendants’ conduct violated their constitutional rights, one
might reasonably suggest that we could simply have proceeded
directly to the determinative second step of the qualified immunity
inquiry. The Supreme Court has made it clear, however, that courts
considering qualified immunity defenses ordinarily should address
the issue of clearly established law only if the plaintiff’s
allegations establish a constitutional violation. Lewis, 523 U.S.
at 841 n.5. The reason for this rule is, at least in part, because
“if the policy of avoidance were always followed in favor of ruling
on qualified immunity whenever there was no clearly settled
constitutional rule of primary conduct, standards of official
conduct would tend to remain uncertain, to the detriment of both
officials and individuals.” Id.

                                       32
