The opinion
Case: 21-20553 Document: 00516678869 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2023
No. 21-20553
Lyle W. Cayce
Clerk
Denise Fisher,
Plaintiff—Appellee,
versus
Jodi M. Moore; Amna Bilal; Rebecca Kaminski; James
Brian Shillingburg; Michael Yelvington,
Defendants—Appellants.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:21-CV-937
Before Richman, Chief Judge, and Wiener and Willett, Circuit
Judges.
Don R. Willett, Circuit Judge:
A disabled public-school student was sexually assaulted by another
student with known violent tendencies. Despite knowing of this attack, the
victim’s teachers let both her and her aggressor wander the school
unsupervised, and she was again assaulted by the very same student. The
victim’s mother sued various school officials under 42 U.S.C. § 1983,
alleging liability under the so-called “state-created danger” doctrine, an
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exception to the general rule that government has no duty under the Due
Process Clause to protect people from privately inflicted harms. The school
officials sought dismissal on qualified-immunity grounds, arguing that the
state-created danger doctrine was not clearly established in this circuit when
the underlying events occurred. The district court denied their motion.
But the school officials are right. This circuit has never adopted a
state-created danger exception to the sweeping “no duty to protect” rule.
And a never-established right cannot be a clearly established one. Nor do we
think it prudent to adopt a never-recognized theory of § 1983 liability in the
absence of rigorous briefing that grapples painstakingly with how such a cause
of action, however widely accepted in other circuits, works in terms of its
practical contours and application, details on which our sister circuits
disagree. Also, beyond the lack of thorough briefing, we are reluctant to
expand substantive due process doctrine given the Supreme Court’s recent
forceful pronouncements signaling unease with implied rights not deeply
rooted in our Nation’s history and tradition. This is especially so here, as our
unbroken precedent counsels us to rule instead on a narrower ground.
Accordingly, we REVERSE and REMAND with instructions to dismiss
the § 1983 claim.
I
A
Denise Fisher, as next friend of M.F., a minor, alleged the following
facts in her complaint:
M.F. was a student at James Bowie Middle School (JBMS) in the Fort
Bend Independent School District (FBISD). Denise Fisher is her mother.
Jodi Moore and Amna Bilal were M.F.’s teachers at JBMS. James
Shillingburg and Michael Yelvington were the principal and vice principal,
2
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respectively. Rebecca Kaminski was the manager of FBISD’s special-needs
program.
M.F. suffers from several mental and physical disabilities. When the
relevant events occurred in the fall of 2019, M.F. was around thirteen years
old but had the cognitive ability of a four- or five-year-old. Her conditions
qualify her for services under the Individuals with Disabilities Education
Act. 1 In accordance with IDEA, M.F.’s attendance at JBMS is governed by
an Individualized Education Program (IEP). An IEP is a “comprehensive
plan prepared by a child’s . . . teachers, school officials, and the child’s
parents” and “the means by which special education and related services are
‘tailored to the unique needs’ of a particular child.” 2 M.F.’s IEP noted that
she sometimes “left her classroom without the teacher’s permission” and
therefore “need[ed] assistance transitioning throughout the school day.”
Accordingly, the IEP provided, among other things, that, “[f]or [M.F.’s]
safety, escorting her during transitions within the school building will be
required.” In fact, M.F. was to be “escorted at all times in middle school.”
R.R. is another minor student at JBMS. He had a history of severe
behavior problems, including violence against other students and teachers,
which was known to JBMS staff. Among his many infractions were
“[h]itting students in the head with rocks”; “[p]oking a student in the eye”;
“[h]itting other students with a belt”; “[t]hreatening to burn a teacher to
death”; and “[b]iting,” “[k]icking[,] and spitting on students.” According
to the complaint, JBMS administrators knew that R.R. posed an especially
serious risk to female students, whom he frequently taunted with obscene
1
See 20 U.S.C. § 1414(d).
2
Endrew F. ex rel. Joseph F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994
(2017) (citations omitted).
3
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remarks. Additionally, R.R. once told school staff that he “was going to be a
rapist when he grows up.” R.R.’s sexual misconduct was not limited to verbal
abuse. He repeatedly entered the girls’ restroom at school and on one
occasion, groped a female classmate. Another incident involved R.R. pulling
his pants down to expose his genitals and then urinating on the wall. R.R. was
also subject to an IEP requiring him to be escorted and supervised at all
times—not for his safety, but for that of the other students.
On September 4, 2019, notwithstanding the IEP requirements, M.F.
and R.R. were “both allowed to wander . . . out of their respective classes”
without supervision. R.R. and M.F. “ended up in the boys’ restroom, where
R.R. forced M.F. to perform oral sex on him.” School employees learned of
the incident when they found R.R. and M.F. coming out of the bathroom and
questioned both students about what they were doing there. M.F. conveyed
to the staff members that she had been sexually assaulted. Upon investigating
her claim, FBISD confirmed from the security camera footage that both
R.R. and M.F. were in the boys’ restroom at the time of the assault. As a
result, the complaint alleges, FBISD and the other defendants were on
notice that R.R. posed a specific threat to M.F.
Then it happened again.
On November 12, 2019, Jodi Moore and Amna Bilal once again
“permitted M.F. to leave her classroom” and navigate the school hallways
without supervision in violation of M.F.’s IEP. At the same time, “Moore
and Bilal allowed R.R. to leave his classroom” and wander the hallways by
himself in violation of his IEP. M.F. entered the girls’ bathroom, and R.R.
followed her inside. R.R. climbed under the stall M.F. was using and sexually
assaulted her again. After an investigation, FBISD confirmed that R.R. had
sexually assaulted M.F. in the girls’ restroom. The Texas Education Agency
4
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also investigated the November 12, 2019 assault and determined that FBISD
had violated both M.F.’s and R.R.’s IEPs.
B
In March 2021, Fisher filed suit on M.F.’s behalf in federal district
court against FBISD and the individual school-official defendants, Jodi
Moore, Amna Bilal, James Brian Shillingburg, Michael Yelvington, and
Rebecca Kaminski. The complaint asserted (1) a claim against all defendants
under 42 U.S.C. § 1983, on the theory that they had “created or increased
the danger to M.F.” and “acted with deliberate indifference” in violation of
the Due Process Clause of the Fourteenth Amendment; and (2) a claim
against FBISD under 20 U.S.C. § 1681, better known as Title IX.
Relevant to this appeal, the individual defendants moved to dismiss
the § 1983 claim under Federal Rule of Civil Procedure 12(b)(6), contending
they were entitled to qualified immunity. The district court denied the
motion in a one-page order, stating only that “Defendants ha[d] not raised
grounds sufficient to justify the partial dismissal requested.” The individual
defendants then filed this interlocutory appeal.
II
We have jurisdiction over this interlocutory appeal from the district
court’s denial of qualified immunity, and our review is de novo. 3 “On appeal
from a motion to dismiss, this court accepts all well-pleaded facts as true and
views them in the light most favorable to the plaintiff.” 4
3
See Wilkerson v. Stalder, 329 F.3d 431, 434 (5th Cir. 2003).
4
De La Paz v. Coy, 786 F.3d 367, 371 (5th Cir. 2015).
5
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III
Appellants insist they are entitled to qualified immunity because the
state-created danger theory of liability was not clearly established in this
circuit when the underlying events occurred. Bound by our precedent, we
agree.
“The doctrine of qualified immunity protects government officials
‘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.’” 5 “Qualified immunity shields federal and state
officials from money damages unless a plaintiff pleads facts showing (1) that
the official violated a statutory or constitutional right, and (2) that the right
was ‘clearly established’ at the time of the challenged conduct.” 6
Appellants contend that as of November 2019, when the events took
place, it was not clearly established that plaintiffs have a right to be free from
state-created dangers. Appellants are correct.
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.” 7 “The Due Process Clause . . . does not, as a general
matter, require the government to protect its citizens from the acts of private
actors.” 8 We have recognized just one exception to this general rule: “when
[a] ‘special relationship’ between the individual and the state imposes upon
5
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
6
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow, 457 U.S. at 818).
7
U.S. Const. amend. XIV, § 1.
8
McKinney v. Irving Indep. Sch. Dist., 309 F.3d 308, 312 (5th Cir. 2002) (citing
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989)).
6
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the state a constitutional duty to protect that individual from known threats
of harm by private actors.” 9 However, “a number of our sister circuits have
adopted a ‘state-created danger’ exception to the general rule, under which
a state actor who knowingly places a citizen in danger may be accountable for
the foreseeable injuries that result.” 10 M.F. brings her due process claim
against Appellants only under the second exception, the state-created danger
theory.
The problem for M.F. is that “the Fifth Circuit has never recognized
th[e] ‘state-created-danger’ exception.” 11 In our published, and thus
binding, caselaw, “[w]e have repeatedly declined to recognize the state-
created danger doctrine.” 12 For this reason, M.F. “ha[s] not demonstrated a
clearly established substantive due process right on the facts [she]
allege[s].” 13 The district court thus erred in denying qualified immunity to
Appellants.
9
Id. at 313.
10
Id.
11
Keller v. Fleming, 952 F.3d 216, 227 (5th Cir. 2020).
12
Joiner v. United States, 955 F.3d 399, 407 (5th Cir. 2020); see also, e.g., Shumpert
v. City of Tupelo, 905 F.3d 310, 324 n.60 (5th Cir. 2018) (“[T]he theory of state-created
danger is not clearly established law.” (listing cases)); Kovacic v. Villarreal, 628 F.3d 209,
214 (5th Cir. 2010) (“The Fifth Circuit has not adopted the ‘state-created danger’ theory
of liability.”); Bustos v. Martini Club Inc., 599 F.3d 458, 466 (5th Cir. 2010) (“But this
circuit has not adopted the state-created danger theory.”); Rios v. City of Del Rio, 444 F.3d
417, 422 (5th Cir. 2006) (“[N]either the Supreme Court nor this court has ever either
adopted the state-created danger theory or sustained a recovery on the basis thereof.”);
Beltran v. City of El Paso, 367 F.3d 299, 307 (5th Cir. 2004) (“This 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.”).
13
Keller, 952 F.3d at 227.
7
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Even though we repeat today that the state-created danger doctrine is
not clearly established in our circuit, to our knowledge we have not
categorically ruled out the doctrine either; we have merely declined to adopt
this particular theory of liability. To be sure, we have suggested what
elements any such theory would include—should we ever adopt it, of course.
For example, on one occasion, we indicated that a state-created danger
theory would require “a plaintiff [to] show [1] the defendants used their
authority to create a dangerous environment for the plaintiff and [2] that the
defendants acted with deliberate indifference to the plight of the plaintiff.” 14
We also stated that the defendant “‘must have used their authority to create
an opportunity that would not otherwise have existed for the third party’s
crime to occur.’” 15 Nonetheless, as we have held time and again, the right to
be free from state-created danger is not clearly established in this circuit. 16
We acknowledge that, as of November 2019, a majority of our sister
circuits had adopted the state-created danger theory of liability in one form
or another. 17 And, as M.F. points out, sometimes a “robust ‘consensus of
persuasive authority’” may suffice to clearly establish a constitutional
14
Doe ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 865 (5th
Cir. 2012) (en banc) (quoting Scanlan v. Tex. A&M Univ., 343 F.3d 533, 537–38 (5th Cir.
2003) (alterations in original)).
15
Id. (quoting Piotrowski v. City of Houston, 237 F.3d 567, 585 (5th Cir. 2001));
accord Estate of Lance v. Lewisville Indep. Sch. Dist., 743 F.3d 982, 1002 (5th Cir. 2014).
16
See, e.g., Keller, 952 F.3d at 227.
17
See Butera v. District of Columbia, 235 F.3d 637, 651 (D.C. Cir. 2001); Okin v. Vill.
of Cornwall-On-Hudson Police Dep’t, 577 F.3d 415, 428 (2d Cir. 2009); Kneipp v. Tedder, 95
F.3d 1199, 1211 (3d Cir. 1996); Doe v. Rosa, 795 F.3d 429, 438–39 (4th Cir. 2015); Kallstrom
v. City of Columbus, 136 F.3d 1055, 1066–67 (6th Cir. 1998); King v. E. St. Louis Sch. Dist.
189, 496 F.3d 812, 817 (7th Cir. 2007); Carlton v. Cleburne Cnty., 93 F.3d 505, 508 (8th Cir.
1996); Wood v. Ostrander, 879 F.2d 583, 589–90 (9th Cir. 1989); Uhlrig v. Harder, 64 F.3d
567, 572 (10th Cir. 1995).
8
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right. 18 But even putting aside our binding precedent that the doctrine is not
clearly established in our circuit, our cases foreclose this specific line of
reasoning as well. As we have held, “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 . . . is insufficient to clearly establish” the
theory of liability in our circuit. 19 “We reasoned that, despite widespread
acceptance of the [state-created danger] doctrine [in other circuits], the
circuits were not unanimous in [the doctrine’s] ‘contours’ or its
application.” 20 We therefore reject M.F.’s argument that out-of-circuit
precedent clearly established her substantive due process right to be free
from state-created danger. 21
Finally, M.F. suggests that “[t]his is the case the Court has been
waiting for,” and she invites us to—finally—adopt the state-created danger
theory of § 1983 liability. We decline to do so. 22
First, M.F. has not briefed the issue or explained how the doctrine
would work in this case. She asserts only that her appeal “presents the right
set of facts which, if believed, would trigger the application of the state-
created danger theory.” We think it “especially unwise” to fashion a new
cause of action without the benefit of rigorous briefing. 23 We are particularly
hesitant to expand the substantive due process doctrine under these
18
See Morgan v. Swanson, 659 F.3d 359, 371–72 (5th Cir. 2011) (quoting al-Kidd,
563 U.S. at 742).
19
McClendon v. City of Columbia, 305 F.3d 314, 330 (5th Cir. 2002).
20
Morrow v. Meachum, 917 F.3d 870, 879 (5th Cir. 2019).
21
See McClendon, 305 F.3d at 330.
22
See Pearson, 555 U.S. at 236 (federal courts may choose which of the two prongs
of qualified-immunity analysis to address first).
23
Lookingbill v. Cockrell, 293 F.3d 256, 263 (5th Cir. 2002).
9
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circumstances—not merely because we have “repeatedly” declined to do so
on this exact issue, 24 but also because the Supreme Court has expressed a
strong reluctance to do so more generally in this area of constitutional law. 25
When adopting the state-created danger doctrine, our sister circuits tend to
reason along the lines of (1) the Supreme Court left open the question in
DeShaney, 26 and (2) other courts have adopted the doctrine. 27 More recently,
however, the Court has reiterated—forcefully—that rights protected by
substantive due process “must be ‘deeply rooted in this Nation’s history and
tradition’ and ‘implicit in the concept of ordered liberty.’” 28 Without
briefing on how the state-created danger doctrine meets the reinvigorated
test, we are content to leave the question of adopting the doctrine for another
day.
Second, in light of caselaw from some of our sister circuits which have
adopted the doctrine, we have some doubts as to whether the facts alleged in
the complaint here state a plausible claim against school officials for student-
24
Estate of Lance, 743 F.3d at 1002 (listing cases).
25
E.g., Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2247–48 (2022)
(“As the Court cautioned in Glucksberg, ‘[w]e must . . . exercise the utmost care whenever
we are asked to break new ground in this field, lest the liberty protected by the Due Process
Clause be subtly transformed into the policy preferences of [judges].’” (quoting
Washington v. Glucksberg, 521 U.S. 702, 720 (1997))); Collins v. Harker Heights, 503 U.S.
115, 125 (2009) (“As a general matter, the Court has always been reluctant to expand the
concept of substantive due process because guideposts for responsible decisionmaking in
this unchart[ed] area are scarce and open-ended.”).
26
489 U.S. 189 (1989).
27
E.g., Irish v. Fowler, 979 F.3d 65, 73–74 (1st Cir. 2020); see also, e.g., Kneipp, 95
F.3d at 1205 (“In DeShaney, the Supreme Court left open the possibility” of a state-created
danger claim, and “[s]everal of our sister courts of appeals have cited this comment by the
Court as support for utilizing a state-created danger theory to establish a constitutional
claim under 42 U.S.C. § 1983.”).
28
Dobbs, 142 S. Ct. at 2242 (quoting Glucksberg, 521 U.S. at 721).
10
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on-student violence. 29 Ordinarily, we would expect a party encouraging us to
adopt a new cause of action to distinguish adverse authorities. Given these
uncertainties and the parties’ decision not to brief the subject, “[w]e decline
to use this . . . opportunity to adopt the state-created danger theory in this
case because the allegations would not support such a theory.” 30
Our holding today should not be misunderstood to say M.F.—or any
future plaintiff—lacks any federal redress whatsoever. To the contrary, we
have recognized that Title IX provides a cause of action for “student-on-
student harassment” under certain circumstances. 31 We observe that M.F.
asserted a Title IX claim in her complaint, and that proceedings on that claim
have been stayed pending this interlocutory appeal. We express no view on
the merits of that claim on remand and mention it here only to support our
conclusion that expanding substantive due process in this case would not be
appropriate in light of our settled precedent.
IV
The facts giving rise to this lawsuit are unquestionably horrific. And
Title IX may well provide M.F. a remedy. But § 1983 does not, as the
29
See, e.g., Morgan v. Town of Lexington, 823 F.3d 737, 744 (1st Cir. 2016) (“An
alleged failure of the school to be effective in stopping bullying by other students is not
action by the state to create or increase the danger.”); Stevens v. Umsted, 131 F.3d 697, 705–
06 (7th Cir. 1997) (holding that a school superintendent’s failure to remove students who
sexually assaulted the disabled plaintiff, and his failure to place the plaintiff in a safer
environment, nonetheless did not give rise to liability under the state-created danger
doctrine); Graham v. Indep. Sch. Dist. No. I-89, 22 F.3d 991, 995 (10th Cir. 1994) (holding
that school officials “did not create a hazardous situation by placing the aggressor and
victim [students] in the same location . . . [n]otwithstanding defendants’ specific
knowledge of the propensities of the aggressors”).
30
Magee, 675 F.3d at 865.
31
I.F. v. Lewisville Indep. Sch. Dist., 915 F.3d 360, 372 (5th Cir. 2019) (listing
elements of a Title IX claim involving alleged student-on-student harassment).
11
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Supreme Court’s qualified-immunity doctrine “protects government
officials ‘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.’” 32 We are bound by our precedent,
which has repeatedly declined to adopt the state-created danger doctrine.
And a right never established cannot be one clearly established. As we
recently put it, “A claim that we have expressly not recognized is the
antithesis of a clearly established one.” 33
Controlling precedent requires us to REVERSE the district court
and REMAND with instructions to enter judgment in Appellants’ favor on
M.F.’s § 1983 claim.
32
Pearson, 555 U.S. at 231 (citation omitted).
33
Watts v. Northside Indep. Sch. Dist., 37 F.4th 1094, 1096 (5th Cir. 2022).
12
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Jacques L. Wiener, Jr., Circuit Judge, concurring:
I concur in the well-written and well-reasoned opinion written by my
colleague, Judge Willett, joined by Chief Judge Richman. Although we are
bound by this court’s precedent, I disagree with its refusal to join the nine
other circuits that have adopted the state-created danger cause of action
under 42 U.S.C. § 1983 to permit individuals to sue state actors for damages
resulting from their acts or failures to act. I am convinced that it is well past
time for this circuit to be dragged screaming into the 21st century by joining
all of the other circuits that have now recognized the state-created danger
cause of action. I acknowledge that we can only do so by taking this case en
banc.
The extreme and uncontested facts of this case present an excellent
opportunity for us to do so. As a senior judge, I could participate on the three-
judge panel that heard and is deciding this case. And as a senior judge, I shall
participate as a voting member of the en banc court if this case is re-heard en
banc. But, as a senior judge, I cannot call for an en banc poll or even vote in
such a poll if one is called for by an active judge of this court. I therefore write
this dissent in the hope that one of my active colleagues will call for an en
banc poll in an effort to have this circuit join the other nine that have
previously recognized the state-created danger cause of action. The horrific
facts of this case, as reported by Judge Willett in his majority opinion for this
panel, present an ideal vehicle for this circuit’s consideration of my proposal
that we join the supermajority of other circuits that have unanimously
recognized the state-created danger cause of action. If we do rehear this case
en banc, the parties will have an ample opportunity to brief whether the facts
alleged in the instant complaint state a plausible claim against school officials
for student-on-student violence, and to distinguish the adverse authorities. I
see this case as the perfect vehicle for our circuit to join every other circuit
13
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that has recognized the state-created danger cause of action in § 1983 claims
against state actors. This is why I respectfully concur.
14