The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
B.P., a minor, by and through their )
parent, L.P., C.L., a minor, by and )
through their parent, K.L, O.D., a ) 2:21-cv-1112
minor by and through their parent, )
N.D., R.J., a minor, by and through )
their parent, H.J., L.H., a minor by ) Judge Marilyn J. Horan
and through their parent, S.H., O.P, )
a minor, by and through their parent, )
S.P., E.H., a minor, by and through )
their parent, M.H., L.S., a minor )
by and through their parent, B.P., )
G.E., a minor, by and through their )
parent, A.E., M.B., a minor, by and )
through their parent, R.B., G.A., a )
minor, by and through their parent, )
A.A., each a minor resident of the )
North Allegheny School District )
attending a North Allegheny School )
District or a parent of the same, )
)
Plaintiffs, )
)
v. )
)
NORTH ALLEGHENY SCHOOL )
DISTRICT, a Pennsylvania )
governmental entity, ANDREW )
CHOMOS, MARCIE CROW, )
ELIZABETH BLACKBURN, )
RICHARD MCCLURE, SCOTT E. )
RUSSELL, ALLYSON MINTON, )
KEVIN MAHLER, ELIZABETH )
WERNER, and SHANNON YEAKEL, )
all individual elected officials sued in )
their individual capacity and in their )
capacity as members of the NORTH )
ALLEGHENY SCHOOL DISTRICT )
BOARD OF DIRECTORS, )
a Pennsylvania elected legislative body, )
)
Defendants. )
MEMORANDUM OPINION
Presently before the Court is a Motion to Dismiss the above action involving issues
related to school masking in the North Allegheny School District, Allegheny County,
Pennsylvania. (ECF No. 47). Plaintiffs, parents of minor children who attend schools in the
District, bring a two-count Amended Complaint requesting injunctive relief for violations of the
Substantive Due Process Clause pursuant to the Fifth and Fourteenth Amendments. (ECF No.
46).
Plaintiffs’ first Complaint sought injunctive relief for violations of the Procedural and
Substantive Due Process Clauses and violations of their First Amendment right to free
association. (ECF No. 1). Along with their original Complaint, Plaintiffs also filed a Motion for
a Temporary Restraining Order, (ECF No.2), which this Court granted on narrow procedural due
process grounds, following Oral Argument. (ECF No. 9).
Defendants filed a Motion to Dismiss the Plaintiffs’ original Complaint, which the Court
granted in full. (ECF No. 44). The Court granted Plaintiffs leave to amend their original
Complaint with regard to their Substantive Due Process and State Created Danger claims. (ECF
No. 44). Plaintiffs subsequently filed an Amended Complaint, (ECF No. 46), and Defendants
filed a Motion to Dismiss the Amended Complaint and an accompanying brief in support, (ECF
Nos. 47 & 48). Plaintiffs filed a Brief in Opposition to Defendant’s Motion to Dismiss, (ECF
No. 51), and Defendants filed a Reply Brief, (ECF No. 52). For the reasons stated herein,
Defendants’ Motion to Dismiss will be granted.
I. Facts1
On June 17, 2021 the school superintendent, Dr. Melissa Friez, sent a district-wide email
to parents concerning the District’s Health and Safety and Education Plans for the 2021-2022
School Year (Health and Safety Plan). (ECF No. 46, at ⁋ 63). The Mask Policy within the June
17, 2021 Health and Safety Plan stated: “Students and staff were required to wear face coverings
1 The facts of this case are provided in greater detail in the Court’s previous Opinion in this
matter. Because the Court writes primarily for the parties, the Court provides only a condensed
statement of facts here.
in accordance with the order of the Pennsylvania Department of Health requirements. As of June
28, 2021, or when 70 percent of adults get their second dose, whichever comes first, the
Commonwealth’s mask order can be lifted. At this time, the District will not require face
coverings after June 28, unless directed to do so by local, Commonwealth, and/or federal
guidelines.” (ECF No. 1-4, at 13; see also ECF No. 46, at ⁋ 66). At the June 23, 2021 School
Board Meeting, the Board voted to approve the June 16, 2021 Health and Safety Plan. (ECF No.
46, ⁋ 68).
On August 13, 2021, Dr. Friez sent an email to District parents that said, “In order to
honor the commitment to five days of in-person instruction and the need for our students to
return to school to a safe environment with as few interruptions as possible, NASD will require
face coverings indoors for students, staff, and visitors for grades K-12 beginning Monday,
August 16.” (ECF No. 46, at ⁋ 85). The District had a School Board Meeting scheduled for
August 18, 2021. (ECF No. 46, at 98). Although the meeting’s agenda was posted on the
School Board’s website, there was no line item on the agenda to advise that the Board would
vote on Dr. Friez’s August 13, 2021 update to the Health and Safety Plan. (ECF No. 46, at ⁋ 94).
At the August 18, 2021 School Board Meeting, Dr. Friez presented the update to the
Health and Safety Plan. (ECF No. 46, at ⁋ 100). After Dr. Friez’s presentation, Board Member
Blackburn moved to eliminate the universal masking requirement within the August 13, 2021
Health and Safety Plan. (ECF No. 46, at ⁋ 105). After hearing comment from persons attending
the meeting, the Board voted, by a vote of 6-3, to change the August 13, 2021 update to the
Health and Safety Plan, which thereby made masks optional in the District. (ECF No. 46, at ⁋⁋
113-18).
On August 22, 2021, Plaintiffs filed suit in this Court seeking a Temporary Restraining
Order to reinstate the Health and Safety Plan’s August 13, 2021 update that required universal
masking in the District. (ECF No. 46, at ⁋ 122). This Court granted Plaintiffs’ Temporary
Restraining Order on narrow procedural due process grounds, as the Plaintiffs established a
likelihood of success on the merits that the August 18, 2021 Board action to eliminate the
universal masking requirement was taken without proper public notice and comment. (ECF No.
9; see also ECF No. 46, at ⁋ 123). The result of this Court’s Temporary Restraining Order was a
return to the status quo as outlined in the August 13, 2021 update to the Health and Safety Plan
requiring face masks for all students, staff, and visitors. (ECF No. 9, at 3).
At the September 22, 2021 regularly scheduled School Board Meeting, the Meeting
Agenda included consideration of motions to rescind the August 18, 2021 School Board masking
decision and to require masks indoors while Allegheny County is in substantial or high
community spread. (ECF No. 46, at ⁋ 124). At the School Board Meeting, following four and
one-half hours of comment from the public, the Board voted to: (1) rescind the Board’s mask-
optional action from the August 18, 2021 meeting and (2) adopt a policy requiring masks to be
worn indoors while Allegheny County is in substantial or high for community
transmission/spread, regardless of the status of any Department of Health masking order. (ECF
No. 29, at ⁋ 17; see also ECF No. 46, at ⁋ 124).
On December 2, 2021, District parents received an email advising that, at the District’s
December 8, 2021 School Board Meeting, the Board would consider and vote upon whether to
revise the Health & Safety Plan to strongly recommend masks in the District effective January
18, 2022. (ECF No. 46, at ⁋ 133). At the December 8, 2021 School Board Meeting, and after
public comment, the Board voted 5-4 to strongly recommend masks in the District. (ECF No.
46, at ⁋ 133).
On January 10, 2022, other students from the District filed a Complaint and Motion for a
Temporary Restraining Order in this Court in the related case of John Doe 1 v. North Allegheny
School District at Docket Number 2:22-cv-55. Plaintiffs in that case brought suit under the
Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973. John Doe 1
v. N. Allegheny Sch. Dist., No. 2:22-cv-55, 2022 WL 170035, at *1 (W.D. Pa. Jan 17, 2022).
Following Oral Argument, this Court granted Plaintiffs’ Motion for a Temporary Restraining
Order, which had the effect of reinstating the universal masking requirements per the September
22, 2021 Board Meeting. Id. at *8. Defendants appealed the decision to the Third Circuit Court
of Appeals on January 25, 2022.
In the meantime, the CDC issued new guidelines for the measurement of COVID-19 risk.
(ECF No. 51, at 25). The result of these revised guidelines was to move Allegheny County from
a category of “high” risk to a category of “low” risk. (ECF No. 51, at 25). As a result, on March
2, 2022, the Third Circuit vacated this Court’s Temporary Restraining Order in the case of John
Doe 1 v. North Allegheny School District and directed that the matter should be remanded to the
District Court “with instruction to dismiss without prejudice the complaints as moot.” This
Court promptly dismissed the case of John Doe 1 v. North Allegheny School District as moot on
March 2, 2022.
II. Standard of Review
A. 12(b)(1) Standard
A court must grant a motion to dismiss if it lacks subject matter jurisdiction to hear a
claim. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion may be presented by the movant as
either a facial or factual challenge to the court’s subject matter jurisdiction. Mortensen v. First
Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). In reviewing a facial attack, “the
court must only consider the allegations of the complaint and documents referenced therein and
attached thereto, in the light most favorable to the plaintiff.” Gould Elec. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000). In reviewing a factual attack, the court may consider evidence
outside the pleadings. Id. (citing Mortensen, 549 F.2d at 891). At “issue in a factual 12(b)(1)
motion is the trial court’s jurisdiction[,] its very power to hear the case.” Mortensen, at 891. The
plaintiff has the burden of establishing that the court has subject matter jurisdiction. Id.
B. 12(b)(6) Standard
When reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), the court must “accept all factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Eid v. Thompson, 740 F.3d 118, 122 (3d Cir.
2014) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). “To survive a
motion to dismiss, a complaint must contain 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)). The Supreme Court clarified
that this plausibility standard should not be conflated with a higher probability standard. Iqbal,
556 U.S. at 678. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Thompson v. Real
Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.
at 678. “Factual allegations of a complaint must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555.
A pleading party need not establish the elements of a prima facie case at this stage; the
party must only “put forth allegations that ‘raise a reasonable expectation that discovery will
reveal evidence of the necessary element[s].’” Fowler v. UPMC Shadyside, 578 F.3d 203, 213
(3d Cir. 2009) (quoting Graff v. Subbiah Cardiology Assocs., Ltd., 2008 WL 2312671 (W.D. Pa.
June 4, 2008)); see also Connelly v. Lane Constr. Corp., 809 F.3d 780, 790 (3d Cir. 2016).
Nonetheless, a court need not credit bald assertions, unwarranted inferences, or legal conclusions
cast in the form of factual averments. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n.8
(3d Cir. 1997). The primary question in deciding a motion to dismiss is not whether the plaintiff
will ultimately prevail, but rather whether he or she is entitled to offer evidence to establish the
facts alleged in the complaint. Maio v. Aetna, 221 F.3d 472, 482 (3d Cir. 2000). The purpose of
a motion to dismiss is to “streamline[] litigation by dispensing with needless discovery and
factfinding.” Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).
Furthermore, “in evaluating a motion to dismiss, courts are not limited to the complaint,
but may also consider evidence integral to or explicitly relied upon therein.” Tanksley v.
Daniels, 902 F.3d 165, 172 (3d Cir. 2018) (internal quotations omitted). “In deciding a Rule
12(b)(6) motion, a court must 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 these documents.” Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citation
omitted).
When a court grants a motion to dismiss, the court “must permit a curative amendment
unless such an amendment would be inequitable or futile.” Great W. Mining & Mineral Co. v.
Fox Rothschild LLP, 615 F.3d 159, 174 (3d Cir. 2010) (internal quotations omitted). Further,
amendment is inequitable where there is “undue delay, bad faith, dilatory motive, [or] unfair
prejudice.” Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). Amendment is
futile “where an amended complaint ‘would fail to state a claim upon which relief could be
granted.’” M.U. v. Downingtown High Sch. E., 103 F. Supp. 3d 612, 631 (E.D. Pa. 2015)
(quoting Great W. Mining, 615 F.3d at 175). In a civil rights case, when the court grants a
motion to dismiss for a failure to state a claim, the court must offer the plaintiff leave to amend,
even if it was not requested by the plaintiff, “unless doing so would be inequitable or futile.”
Phillips, 515 F.3d at 246; Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d
247, 251 (3d Cir. 2007).
III. Discussion
A. Substantive Due Process Claim
1. Mootness Doctrine
Defendants argue that the recent changes to the CDC Guidelines renders Plaintiffs’
Substantive Due Process claims moot. (ECF No. 52, at 13-14). Plaintiffs argue that their
Substantive Due Process claim still presents a live controversy because the Board’s actions are
capable of repetition. (ECF No. 51, at 26-27).
Third Circuit mootness analysis “traditionally begins with the requirement of Article III
of the Constitution under which the exercise of judicial power depends upon the existence of a
case or controversy.” Int’l Brotherhood of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.
1987). “If at any point a claim ceases to present a live case or controversy, the claim is moot and
the federal court lacks jurisdiction to hear it.” Democracy Rising PA v. Celluci, 603 F.Supp.2d
780, 793 (M.D. Pa. 2009). “The central question of all mootness problems is whether changes in
circumstances that prevailed at the beginning of the litigation have forestalled any occasion for
meaningful relief.” In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003). However, a case will only
become moot when “subsequent events made it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate
Export Ass’n, Inc., 393 U.S. 199, 203 (1968). “Mere voluntary cessation of allegedly illegal
conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free
to return to his old ways.” Id. (citations and internal quotations omitted). “Under the capable of
repetition exception, for example, a court may exercise its jurisdiction and consider the merits of
a case that would otherwise be deemed moot when (1) the challenged action is, in its duration,
too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.” Rendell,
484 F.3d at 241.
In early March, the CDC revised its masking guidelines, which has subsequently made
masking optional within the District per the current transmission rates in Allegheny County.
Because there is no reasonable expectation that Plaintiffs will be subject to the same action under
the same set of circumstances again, the capable of repetition yet evading review exception to the
mootness doctrine does not apply. As such, the Plaintiffs’ Substantive Due Process claim is
moot. Said claim will be dismissed for this Court’s lack of jurisdiction.
2. Substantive Due Process Analysis
Even if the CDC had not recently amended its masking guidelines, Plaintiffs’ Amended
Complaint still does not present sufficient allegations in support of their Substantive Due Process
claim. Defendants argue that Plaintiffs have failed to identify a violation of a fundamental right
and that the Board’s August 18, 2021 decision to have an optional masking policy satisfies the
rational basis test. (ECF No. 48, at 7, 10). Plaintiffs concede that the right to an education is not
a fundamental right. (ECF No. 51, at 7). However, Plaintiffs argue that the right to a “thorough
and efficient” public education is entitled to constitutional protection and that the Court should
apply a strict scrutiny analysis. (ECF No. 51, at 8, 17). Plaintiffs also concede that the Board’s
August 18, 2021 decision was a legislative enactment. (ECF No. 51, at 7).
The Third Circuit Court of Appeals has noted that, absent a fundamental right, there are
two substantive due process standards that apply to government action. Nicholas v. Pa. State
Univ., 227 F.3d 133, 139 (3d Cir. 2000). The first standard applies when a plaintiff challenges
the validity of a legislative act. Id. When a plaintiff challenges the validity of a legislative
action, the rational basis test applies. Id. When a challenge involves a non-legislative state
action, the second standard applies. Id. The second standard addresses whether “the government
deliberately and arbitrarily abused its power.” Id. As Plaintiffs have conceded that the Board’s
August 18, 2021 action was a legislative enactment, the Court will apply the rational basis test.
Thus, although Plaintiffs argue that the Court should apply the second, non-legislative action
standard, the test for arbitrariness as used for non-legislative actions is not applicable to the
present case.
Here Plaintiffs challenge a legislative enactment and do not claim that the enactment
burdens a fundamental right, thus rational-basis review applies. Am. Express Travel Related
Servs. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012). Under the rational-basis standard,
the government action will stand if the governmental entity can show: “(1) the existence of a
legitimate state interest that (2) could be rationally furthered by the statute.” Id. “[U]nder
rational basis review, legislation enjoys a presumption of validity . . . .” Brian B. ex rel. Lois B.
v. Commonwealth of Pa. Dep’t of Educ., 230 F.3d 582, 586 (3d Cir. 2000). Under this test, the
plaintiff bears the burden of proving that there is no legitimate state interest for the challenged
regulation. Kadramas v. Dickinson Pub. Sch., 487 U.S. 450, 461-62 (1988). In fact, the
government does not need to actually articulate its rationale in passing the legislative enactment;
rather, government action passes muster under the rational basis test “if there is any conceivable
state of facts that could provide a rational basis.” Heller v. Doe by Doe, 509 U.S. 312, 319
(1993). Furthermore, the Supreme Court has “emphasized that application of rational basis
review is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”
Id.
As the Board’s action enjoys a presumption of validity under the rational basis test, it is
the Plaintiffs’ burden to prove an absence of rational basis. Plaintiffs plead nothing in their
Amended Complaint concerning how the Board’s August 18, 2021 and December 8, 2021
actions fail to satisfy the rational basis test. Defendants argue in their Brief that it considered
both the “negative effects that masks were having on District students and their learning” and
“concerns regarding the disruption and impacts that the enforcement of a mandatory mask policy
would have on its students” when it decided to make masks optional in the District. (ECF No.
48, at 12). The Plaintiffs have not presented any facts in their Amended Complaint or Brief to
suggest that the Board had no legitimate state interest for lifting the mask mandate. As Plaintiffs
have not satisfied their burden to plead an absence of a legitimate state interest, Plaintiffs’
Substantive Due Process claim fails. Defendants’ Motion to Dismiss Plaintiffs’ Substantive Due
Process claim will be granted.
B. State Created Danger Claim
1. Mootness Doctrine
As discussed above, the recent updates to the CDC masking guidelines renders Plaintiffs’
State Created Danger claim moot. Because there is no reasonable expectation that Plaintiffs will
be subject to the same action under the same set of circumstances again, the capable of repetition
yet evading review exception to the mootness doctrine does not apply. As such, the Plaintiffs’
State Created Danger claim is moot. Said claim will be dismissed for this Court’s lack of
jurisdiction.
2. State Created Danger Analysis
Even if the CDC had not recently amended its masking guidelines, Plaintiffs’ State
Created Danger claim would still be dismissed on its merits. Defendants argue that they do not
owe Plaintiffs a duty to protect the students from the harms alleged in the Amended Complaint.
(ECF No. 48, at 14). Plaintiffs argue that Defendants have a duty and obligation to protect the
students in the District from the harms that can result from COVID-19. (ECF No. 51, at 23).
The Due Process Clause “is a limitation on the state’s power to act, but it does not
‘impose an affirmative obligation on the State to ensure that those life, liberty, and property
interests do not come to harm through other means.’” Luu v. Easterly, 367 F. Supp. 3d 335, 342
(E.D. Pa. 2019) (quoting Deshany v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195
(1989)). The Third Circuit’s four-part test outlines the requirements of a plaintiff’s state created
danger claim: “(1) the harm ultimately caused to the plaintiff was foreseeable and fairly direct;
(2) the state-actor acted with willful disregard for the plaintiff’s safety; (3) there was some
relationship between the state and the plaintiff; and (4) the state-actor used his authority to create
an opportunity for danger that otherwise would not have existed.” Phillips, 515 F.3d at 235.
Defendants and Plaintiffs both agree that the requisite relationship between the Board and
the Plaintiffs existed to satisfy the third prong of the Third Circuit’s state created danger test.
However, Defendants and Plaintiffs disagree on the results of the other three prongs of the state
created danger test.
Under the first prong of the Third Circuit’s state created danger test, the Plaintiffs must
bring forth facts within their Amended Complaint to show that the harm ultimately caused to the
plaintiff was foreseeable and fairly direct. To adequately plead foreseeability under this
standard, a plaintiff must “allege an awareness on the part of the state actors that rises to the level
of actual knowledge or awareness of risk that is sufficiently concrete to put the actors on notice
of the harm.” Id. at 237. Additionally, the risk of irreparable harm alleged by the plaintiff must
not be speculative. Adams v. Freedom Forge Corp., 204 F.3d 475, 488 (3d Cir. 2000).
Plaintiffs’ Amended Complaint alleges that as a result of the Board’s decision to lift the
universal mask requirement, Defendants “exacerbated the dangers and dangerous situations to
which Plaintiff Children were exposed, including specifically the dangers of being infected with
the COVID-19 virus, therefore making Plaintiff children more vulnerable to contracting COVID-
19.” (ECF No. 46, at ⁋ 183). The harm alleged as foreseeable by the Plaintiffs, as being a direct
consequence of the Board’s action to lift the school mask mandate, is not expressly or
sufficiently pled. Additionally, the Amended Complaint contains no allegations of any harm that
actually occurred. Further, the general harms alleged by Plaintiffs’ Amended Complaint suggest
indirect consequences of the Board’s decision to lift the universal mask mandate rather than
direct consequences of the Board’s action. As such, Plaintiffs’ Amended Complaint does not
satisfy the first element of the state created danger test.
Under the second element of the state created danger test, Plaintiffs must demonstrate
that the state actor acted with a degree of culpability that shocks the conscience and sufficiently
allege that the defendants acted in willful disregard for or with deliberate indifference to their
safety. Morrow v. Balaski, 719 S.3d 160, 176 (3d Cir. 2013). Deliberate indifference is “a
stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cty. Cmm’rs v. Brown, 520 U.S. 397, 410 (1997). The
Plaintiffs cannot demonstrate that the Board acted with willful disregard for their safety when it
decided to lift the universal mask mandate. Although Plaintiffs allege in their Amended
Complaint that the Board “willfully failed to enforce known safety measures,” (ECF No. 46, at ⁋
184), the Board’s decision to create their own standard, rather than following the current
standards from the CDC and Allegheny County Department of Health, does not present a degree
of culpability that shocks the conscience or demonstrates a willful disregard or deliberate
indifference to the students’ safety under the state created danger analysis. As such, Plaintiffs’
Complaint does not satisfy the second prong of the state created danger test.
As disposition of the state created danger analysis rests on the failure of the first two
prongs of the Third Circuit’s four-part test, there is no need to discuss the fourth prong of the
analysis. As Plaintiffs’ Complaint does not sufficiently satisfy either the first or the second
prong of the state created danger test, Defendants’ Motion to Dismiss Plaintiffs’ State Created
Danger claim will be granted.
C. Motion to Dismiss Board Members in Their Official and Individual
Capacities
Defendants argue in their Brief that Plaintiffs’ claims against the individual Board
Members should be stricken from the Amended Complaint as the Court had already dismissed
those Defendants with prejudice. (ECF No. 48, at 23-25). Plaintiffs respond that the claims
against the individual Defendants were not dismissed with prejudice. (ECF No. 51, at 25). This
Court’s January 12, 2022 Opinion reads: “As amendment would be futile, Plaintiffs will not be
granted leave to amend with regard to their claims for civil liability against the individual
Defendants.” (ECF No. 44, at 22). Additionally, there is nothing in the Amended Complaint to
indicate that immunity is not applicable as to the individual Defendants. As the claims against
the individual Defendants were dismissed without leave to amend in this Court’s January 12,
2022 Opinion and Order, any claims in the Amended Complaint against the individual
Defendants shall be stricken from the Amended Complaint and dismissed with prejudice.
IV. Conclusion
For the reasons stated above, Defendants’ Motion to Dismiss Plaintiffs’ Amended
Complaint will be granted. This court lacks jurisdiction over said claims, and they are dismissed
as moot. Despite having been granted leave to amend once, Plaintiffs’ Amended Complaint
added only conclusory allegations to their original Complaint, and such are insufficient to state a
claim for violations of the Substantive Due Process Clause or violations of the state created
danger doctrine. In addition, although Plaintiffs ask for leave to amend, they make no showing
that they can allege additional facts should the Court grant Plaintiffs leave to amend. The Court
accordingly concludes that amendment would be futile. The Court will therefore dismiss
Plaintiffs’ Amended Complaint without leave to amend. An appropriate Order will be entered.
DATE: 3/24/2022 Deeply Mora
Marilyn J. Hora
United States District Judge
15