noting that, to determine whether a defendant is entitled to qualified immunity, an essential aspect is whether the plaintiff alleged a violation of a federal right
How later courts described this case
- noting that, to determine whether a defendant is entitled to qualified immunity, an essential aspect is whether the plaintiff alleged a violation of a federal right
- rejecting the plaintiff’s argument that knowledge of the student’s prior acts of violence and failure to comply with policy constituted affirmative acts
Written by the judges who cited it.
The opinion
USCA4 Appeal: 22-1020 Doc: 31 Filed: 01/13/2023 Pg: 1 of 9
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-1020
KIMBERLY BURNS-FISHER,
Plaintiff - Appellee,
v.
ANNA MARIA ROMERO-LEHRER, in her individual and official capacity,
Defendant – Appellant,
and
PENDER COUNTY BOARD OF EDUCATION; STEVE HILL, Superintendent,
in his individual and official capacity,
Defendants.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:21-cv-00068-D)
Argued: December 6, 2022 Decided: January 13, 2023
Before NIEMEYER, THACKER, and RICHARDSON, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote the opinion, in which
Judge Niemeyer and Judge Richardson joined.
ARGUED: Norwood Pitt Blanchard, III, CROSSLEY MCINTOSH COLLIER HANLEY
& EDES PLLC, Wilmington, North Carolina, for Appellant. Bruce W. Berger, KNOTT &
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BOYLE, PLLC, Raleigh, North Carolina, for Appellee. ON BRIEF: W. Ellis Boyle,
KNOTT & BOYLE, PLLC, Raleigh, North Carolina, for Appellee.
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THACKER, Circuit Judge:
Kimberly Burns-Fisher (“Appellee”) was a middle school teacher in Pender County,
North Carolina when she was physically attacked by a special education student in her
language arts class. There is no dispute that the student was known to have been violent
on prior occasions. At the time of the incident involving Appellee, Anna Maria Romero-
Lehrer (“Appellant”) was the principal of the school where the attack occurred.
After the incident, Appellee brought this action, and Appellant moved to dismiss
the claims against her. In a brief, single-page order, the district court denied Appellant’s
motion to dismiss, which was based on, among other arguments, her qualified immunity
defense. Because Appellee failed to sufficiently allege that Appellant violated her
constitutional rights, we hold that Appellant is entitled to qualified immunity. Therefore,
we reverse and remand for further proceedings consistent with this opinion.
I.
On April 19, 2018, Appellee was designated to teach an “‘inclusion class,’ meaning
that it included both special education and ‘mainstream’ students.” J.A. 9. 1 According to
the complaint, Pender County Board of Education policy requires that “when a class has
ten of thirty students with [Individualized Education Plans (“IEPs”)], two teachers must be
present.” Id. at 10. In addition, one of those two teachers must be certified and trained as
an exceptional child (“EC”) teacher. Appellee maintains that Appellant frequently
condoned the teaching of inclusion classes without the required second teacher present.
1
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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On the day of the incident, 10 of the 30 students in Appellee’s language arts class had IEPs,
but there was no EC teacher present in the classroom. Appellee alleges that Appellant
knew that she was the only teacher in her classroom but nevertheless did not send a second
teacher to Appellee’s class.
Toward the end of Appellee’s language arts class, the students played a vocabulary
game in which the results were entered on a whiteboard. When Appellee removed the
results from the whiteboard, an EC student -- who is referred to in the complaint as TB 2 --
called Appellee a “moron.” J.A. 11. At the time of the incident, TB was 15 years old and
considered to be at the mild end of the autism spectrum. Appellee told TB that it was
inappropriate to call a teacher a moron and asked him to come up to her desk. As TB
approached Appellee, he hit her on the left side of her head with his bookbag.
After the initial attack, Appellee attempted to stand up, but TB knocked her back
down into her chair. During this altercation, Appellee fell to the ground and hit her head
on either a table, a filing cabinet, or the ground. While Appellee was on the floor, TB
kicked her in the head and back. As a result of this incident, Appellee suffered multiple
injuries which required medical treatment, including surgery, and kept her from returning
to work as of the date the complaint was filed.
On April 9, 2021, Appellee brought this action against the Pender County Board of
Education (the “Board”), its superintendent at the time of the incident, Steve Hill
2
Because TB was a minor at the time of the incident, the complaint refers to him by
his initials only, and we do as well.
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(“Superintendent Hill”), and Appellant. In the complaint, Appellee asserted the following
five 42 U.S.C. § 1983 claims: (1) a substantive due process claim; (2) a deliberate
indifference claim; (3) a supervisory liability claim against Superintendent Hill; (4) a claim
seeking personal liability against Superintendent Hill; and (5) a claim seeking personal
liability against Appellant. Relevant here, the personal liability claim against Appellant
alleges that Appellant knew or should have known that her actions and inactions could
have led to a violation of Appellee’s constitutional rights.
On June 14, 2021, Appellant moved to dismiss the complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing that the claims against her failed as a matter of
law because she was entitled to qualified immunity. On December 22, 2021, the district
court issued a single-page order denying Appellant’s motion to dismiss. After explaining
that it reviewed the complaint and the motion to dismiss “under the governing standard,”
J.A. 32, the district court denied the motion without addressing the parties’ arguments or
explaining the legal basis for its ruling.
Appellant timely filed a notice of appeal. Appellant raised other grounds for
dismissal, but only the district court’s denial of qualified immunity is at issue in this appeal.
The other defendants are not a part of this appeal because Appellee voluntarily dismissed
Superintendent Hill and the jurisdictional basis for this appeal -- namely, the district court’s
denial of qualified immunity -- is inapplicable to the Board. See Rogers v. Pendleton, 249
F.3d 279, 285 (4th Cir. 2001) (“A district court’s denial of qualified immunity is
immediately appealable under the collateral order doctrine, because qualified immunity
confers immunity from suit and not merely from liability.”); see also Owens v. Baltimore
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City State’s Att’ys Office, 767 F.3d 379, 402 (4th Cir. 2014) (“Unlike public officials,
municipalities do not enjoy qualified immunity.”).
II.
“We review de novo the denial of a motion to dismiss based on qualified immunity,
accepting as true the facts alleged in the complaint and viewing them in the light most
favorable to the plaintiff.” Evans v. Chalmers, 703 F.3d 636, 646 (4th Cir. 2012) (internal
quotation marks omitted).
III.
Appellant argues that the district court erred by determining that she was not entitled
to qualified immunity. “Under the doctrine of qualified immunity, government officials
performing discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Dean ex rel. Harkness v. McKinney,
976 F.3d 407, 413 (4th Cir. 2020). “To determine whether a defendant is entitled to
qualified immunity, we ask two questions: (1) Has the plaintiff alleged a violation of a
federal right? (2) Was the right at issue clearly established at the time of the alleged
violation?” Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019) (internal citation
omitted).
Appellee contends that Appellant violated her “constitutional liberty interest in
bodily integrity,” J.A. 22, by “establishing a state-created danger,” Appellee’s Br. at 8.
This alleged constitutional violation is rooted in the state-created danger doctrine, which is
an exception to the general rule that “the Due Process Clause of the Fourteenth Amendment
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does not require governmental actors to affirmatively protect life, liberty, or property
against intrusion by private third parties.” Pinder v. Johnson, 54 F.3d 1169, 1174 (4th Cir.
1995). Importantly, the state-created danger exception “applies only when the state
affirmatively acts to create or increase the risk that resulted in the victim’s injury.” Graves
v. Lioi, 930 F.3d 307, 319 (4th Cir. 2019); see also Callahan v. N.C. Dep’t of Pub. Safety,
18 F.4th 142, 147–48 (4th Cir. 2021) (“It is not enough to reframe a failure to protect
against a danger into an affirmative act.”).
Here, Appellee’s state-created danger claim centers on a series of alleged choices
or inactions by Appellant which are far removed from TB’s physical attack on Appellee.
Specifically, Appellee attempts to recast Appellant’s knowledge of TB’s prior acts of
violence and creation of the staffing schedule which required Appellant to teach TB on the
day of the incident -- without a second teacher in her classroom -- as affirmative acts. But
Appellee fails to point to any action by Appellant which created the danger that resulted in
Appellee’s injuries. At most, Appellee points to acts or omissions by Appellant that
suggest Appellant knew that TB posed a risk to Appellee, but nevertheless failed to prevent
TB from attacking Appellant. For example, Appellee alleges that prior to the incident,
Appellee “requested that TB be removed from her class for her safety and the safety of the
students in the class,” but “[Appellant] refused.” J.A. 14. Appellant’s alleged knowledge
of TB’s violent history and her failure to prevent TB from attacking Appellee are
insufficient to constitute affirmative acts because “the state must create the direct danger
that causes the injury or death.” Callahan, 18 F.4th at 148. Because the conduct Appellee
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has identified did not directly cause Appellee’s injuries, Appellee did not sufficiently allege
that her constitutional rights were violated.
Given the absence of a constitutional violation, we need not address Appellant’s
alternative basis for reversal -- namely, whether Appellee failed to sufficiently allege a
constitutional violation because she did not allege intent to harm. See Callahan, 18 F.4th
149 n.5 (declining to reach the district court’s dismissal of the plaintiff’s complaint for
failure to plead intent to harm after determining that the complaint must be dismissed
because the plaintiff did not sufficiently allege an affirmative act).
Even if Appellee did sufficiently allege that her constitutional rights were violated,
we conclude that reversal is still required because Appellee has not demonstrated that it
was clearly established at the time of the incident that she had a constitutional right to be
protected from a student who was known to have a violent history. “To determine whether
a right was clearly established, we typically ask whether, when the defendant violated the
right, there existed either controlling authority—such as a published opinion of this
Court—or a robust consensus of persuasive authority, that would have given the defendants
fair warning that their conduct was wrongful.” Turner, 930 F.3d at 644 (internal citation
and quotation marks omitted). In Turner v. Thomas, 930 F.3d 640 (4th Cir. 2019) and
Callahan v. N.C. Dep’t of Pub. Safety, 18 F.4th 142 (4th Cir. 2021), we emphasized that
since Pinder v. Johnson, 54 F.3d 1174 (4th Cir. 1995), “we have never issued a published
opinion recognizing a successful state-created danger claim.” Turner, 930 F.3d at 646;
Callahan, 18 F.4th at 147 (citation omitted). Notably, while we acknowledged in Pinder
that “[a]t some point on the spectrum between action and inaction, the state’s conduct may
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implicate it in the harm caused,” 54 F.3d at 1175, we nevertheless determined that the
defendant was entitled to qualified immunity, id. at 1172. In doing so, we stated that at the
time of the incident in question, it was not clearly established that the defendant police
officer had an affirmative duty to protect citizens from the actions of a third party. Id. at
1172.
This case fits neatly within our jurisprudence on state-created danger claims. As in
Pinder, Turner, and Callahan, the injury here was, at best, indirectly caused by Appellant’s
failure to protect Appellee from TB. Pinder, 54 F.3d at 1175–76; Turner, 930 F.3d at 646–
47; Callahan, 18 F.4th 148–49. And as in those cases, we had not made clear at the time
of the incident in this case that a defendant’s failure to adequately respond to a potentially
dangerous situation gives rise to an actionable constitutional claim under the state-created
danger doctrine. Because it was not clearly established at the time of the incident that a
defendant’s failure to act gives rise to a state-created danger claim, we conclude that
Appellant is entitled to qualified immunity. See Graves, 930 F.3d at 327 (“[C]ourts should
resist the temptation to accept plaintiffs’ attempts to artfully recharacterize inaction as
action.” (alteration adopted and internal quotation marks omitted)).
IV.
For the reasons set forth herein, we reverse the district court’s denial of qualified
immunity and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED
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