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 Case: 21-20553 Document: 00516678869 Page: 2 Date Filed: 03/16/2023

No. 21-20553

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 Case: 21-20553 Document: 00516678869 Page: 3 Date Filed: 03/16/2023

No. 21-20553

respectively. Rebecca Kaminski was the manager of FBISD’s special-needs program. M.F. suffers from