MEMORANDUM

MALACHY E. MANNION, District Judge.

Currently before the court is a motion for reconsideration filed by the plaintiffs, Patricia A. Bauer and Richard E. Bauer ("Mr. And Mrs. Bauer"). (Doc. 58). The plaintiffs seek reconsideration of the court's August 29, 2016 Memorandum and Order, (Docs. 56-57), denying the plaintiffs' motion for leave of court to file an amended complaint, (Doc. 51), and granting the defendants' various motions to dismiss, (Docs. 17, 20, 26). These defendants include: Ross Township; Ross Township Supervisors, Howard Beers ("Supervisor Beers"), Russell Kresge, Jr. ("Supervisor Kresge"), and Tina Drake ("Supervisor Drake") (collectively, the "Ross Township Supervisors"); Ross Township Solicitor John Dunn ("Solicitor Dunn"); and Sheriff of Monroe County, Pennsylvania, Todd Martin ("Sheriff Martin"). The Ross Township Supervisors and Solicitor Dunn were sued in both their individual and official capacities; Sheriff Martin was sued in his individual capacity alone. In its Memorandum and Order, the court dismissed all claims against all defendants in the plaintiffs' original and proposed amended complaint. For the reasons stated below, the plaintiffs' motion for reconsideration of the court's August 29, 2016 decision is DENIED.

I. BACKGROUND

A. The August 5, 2013 Ross Township Meeting

As detailed in the court's previous memorandum, great tragedy befell Ross Township on August 5, 2013. On that day, township resident Rockne Newell ("Newell") opened fire during a monthly meeting held by the Ross Township Supervisors. Newell's property had been condemned and sold by Ross Township eleven days prior to the shooting, on July 25, 2013, in order to satisfy a $8,434.15 judgment the township obtained from the Monroe County Court of Common Pleas due to Newell's ongoing zoning and sewage violations. Newell's reaction to the township's actions was to engage in a deadly mass shooting at the August 5, 2013 township meeting, resulting in severe injuries sustained by Mrs. Bauer and the tragic dead of three individuals, James Vincent LaGuardia, Gerald J. Kozic, and David Fleetwood.

On August 5, 2015, the plaintiffs filed the current action. (Doc. 1). Mrs. Bauer alleged that she was deprived of her due process rights under the Fourteenth Amendment of the United States Constitution and her claim was filed pursuant to Title 42, Section 1983 of the United States Code. Count I of the complaint sought recovery for Mrs. Bauer's personal injuries. Count II was pled by Mr. Bauer for loss of consortium.

The plaintiffs alleged that, over a period of approximately 23 years, the Ross Township Supervisors and Solicitor Dunn engaged in a "substantial and multi-faceted campaign" against Newell. (Doc. 1, at ¶15). These actions, coupled with the defendants' "zealous over use of legal process" against Newell were alleged to create the opportunity for the danger at the township meeting on August 5, 2013. (Id. at ¶41). The plaintiffs alleged that the Ross Township Supervisors used their positions for "personal gain and benefit," as opposed to the best interests of the township. (Id. at ¶17). An alleged motivation for this conduct was Supervisor Kresge's desire to purchase Newell's property and add it to his own 61.98 acre adjacent property. (See id. at ¶¶18-21). These motives led to the "selective" enforcement of zoning ordinances against Newell and a campaign against Newell for zoning and sewer regulations, which included a referral to the Federal Emergency Management Agency ("FEMA") that Newell had made a fraudulent claim for money to finance a project on his property. (Id. at ¶¶22-25). It was also alleged that Ross Township, the Ross Township Supervisors, and Solicitor Dunn knew this conduct "was provoking or likely to invoke violence from Rockne Newell." (Id. at ¶49(d)).

The plaintiffs also claimed that Ross Township, the Ross Township Supervisors, and Solicitor Dunn consciously disregarded Mrs. Bauer's civil rights by failing to warn attendees, secure, or take action at the August 5, 2013 meeting despite their alleged knowledge of Newell's propensity for violence. (Id. at ¶49). This allegation was based on Newell's interactions with others in the community and Newell's father's statements to sheriff deputies that his son was threatening violence due to the township's actions. (See id. at ¶¶27-28). In particular, Newell's father allegedly warned sheriff deputies that people would "die" due to the township's actions in proceeding with the sale of Newell's property. (Id. at ¶28).

Distinct from the claims against Ross Township, the Ross Township Supervisors, and Solicitor Dunn, the plaintiffs' claim against Sheriff Martin was based, primarily, upon Sheriff Martin's failure to take action before the township meeting or secure the township meeting, despite Sheriff Martin's purported knowledge of Newell's dangerous propensities and threats of violence. (See id. at ¶56). However, included in the plaintiffs' complaint was an allegation that Sheriff Martin consciously disregarded Mrs. Bauer's civil rights "[i]n exercising state authority" that left her vulnerable to harm by Newell. (Id. at ¶56(h)).1

B. The Parties' Underlying Motions

On September 17, 2015, Sheriff Martin filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Doc. 17). Sheriff Martin sought dismissal of the Section 1983 claim against him in his individual capacity primarily based upon the Supreme Court decision in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) and the plaintiffs' failure to allege an exception to the principles set forth in DeShaney. Specifically, Sheriff Martin argued that the plaintiffs failed to adequately plead the state-created danger exception to DeShaney. In the alternative, Sheriff Martin alleged that he had no authority to act at the August 5, 2013 township meeting and that he either had absolute or qualified immunity from suit when conducting the sheriff's sale of Newell's property.

On September 24, 2015, Ross Township and the Ross Township Supervisors filed a motion to dismiss the plaintiffs' complaint. (See Doc. 20). This motion made the same argument as Sheriff Martin's motion, failure to state a claim using the state-created danger exception to DeShaney. The motion also construed the plaintiffs' complaint to include a possible state law claim of negligence. Ross Township and the Ross Township Supervisors sought to dismiss any potential state tort action by claiming immunity under Pennsylvania's Political Subdivision Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§8541-42. Lastly, on October 16, 2015, Solicitor Dunn filed his own Rule 12(b)(6) motion to dismiss. (See Doc. 26). In addition to asserting the DeShaney defense, Solicitor Dunn asserted that he was not a state actor subject to Section 1986 or, in the alternative, if he was a state actor, that his actions were shielded by the good faith defense.

In addition to responding to all the defendants' motions to dismiss, on May 16, 2016, the plaintiffs filed a motion for leave to file an amended complaint, (Doc. 51), as the deadline for amended pleading had already passed. The overall substance of the proposed amended complaint was the same as the original complaint. The proposed amended complaint did not include any new claims or causes of action. Instead, it added several new factual allegations in an effort to show that the defendants knew of Newell's propensity for violence prior to the August 5, 2013 shooting. These included the following factual accounts:

(Doc. 55-1, at ¶¶28-31, 34). These new allegations were added as a result of an interview with Newell on April 28, 2016. The plaintiffs were unable to obtain this information earlier due to Newell's movement through the state correctional system and the plaintiffs' counsel's inability to contact Newell's criminal defense attorney. All of the defendants opposed the plaintiffs' request to file an amended pleading, arguing that any amendment would be futile in light of the legal arguments presented in the motions to dismiss.

On October 19, 2015, before the plaintiff sought leave to file an amended complaint, the court agreed to consolidate discovery in the matter with matters filed on behalf of other attendees at the township meeting, including those filed by the wives of James Vincent LaGuardia and Gerard J. Kozic.2 (See Doc. 28). Thereafter, while the defendants' motions were still pending, the court continued scheduling a joint case management plan. (See Doc. 44; Doc. 50). Originally, the court set the deadline for amended pleadings from the plaintiffs to February 1, 2016 and set the deadline for fact discovery to June 1, 2016. (See Doc. 44). On May 9, 2016, the deadline for fact discovery was extended to October 1, 2016. (See Doc. 50). Thus, discovery continued up until the court's August 29, 2016 decision.

C. The Court's August 29, 2016 Memorandum and Order

On August 29, 2016 the court determined that the August 5, 2013 massacre fell within the principles espoused in DeShaney and that the plaintiffs had not alleged a viable state-created danger claim as an exception to DeShaney. In DeShaney, the Supreme Court of the United States held that the Fourteenth Amendment does not impose an affirmative obligation upon a state to protect its citizens from the violent actions of private actors. DeShaney v. Winnebago County Dept's of Soc. Servs., 489 U.S. 189, 195-96 (1989). One exception to this holding is the state-created danger exception, which is the theory that the plaintiffs' complaint was premised upon. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907 (3d Cir. 1997). The state-created danger exception requires that the plaintiffs establish four elements:

L.R. v. Sch. Dist. of Phila., ___ F.3d ___, 2016 WL 4608133, at *3 (3d. Cir. Sept. 6, 2016) (citing Bright v. Westmoreland, 443 F.3d 276, 281 (3d Cir. 2006)); Kneipp v. Tedder, 95 F.3d 1199, 1208 (3d Cir. 1996).

In its memorandum, the court addressed the fourth element of the state-created danger theory first. The court then separated the unconstitutional conduct alleged in the plaintiffs' complaint into two categories, a category of nonfeasance based on the defendants' failure to secure the meeting or warn the meeting attendees of Newell's dangerous propensities and the defendants' affirmative conduct or malfeasance in pursuing legal action against Newell. The court went on to explain that those allegations predicated upon nonfeasance and the defendants' failure to act, warn, or secure the township meeting could not form the basis of a valid state-created danger claim.

Addressing the allegations relating to the defendants' affirmative actions in pursuing legal means against Newell, the court found that those actions did not create the opportunity for the alleged harm and that to find such would involve a great leap in logic. The court therefore found that the plaintiffs had failed to establish the fourth element of the exception. Turning to the first element of the state-created danger theory, the court determined that Newell's criminal actions on August 5, 2013 were not foreseeable and that the defendants' actions did not directly lead to Newell's homicidal attack. Addressing the second element, the court determined that the defendants did not act with deliberate indifference or exhibit conscious shocking behavior. Lastly, the court determined that, as required by the third element, Mrs. Bauer was not alleged to be a member of a discreet class of persons subject to harm due to the defendants' behavior.

Because the plaintiffs had failed to establish a valid Section 1983 claim, the court found that Mr. Bauer's derivative loss of consortium claim should also be dismissed. The court also found that any amendment to the complaint would be futile and, therefore, denied the plaintiffs' request to amend the complaint. The plaintiffs now seek reconsideration of the court's August 29, 2016 Memorandum and Order. The plaintiffs bring their motion pursuant to Federal Rule of Civil Procedure 59(e) or, in the alternative, Federal Rule of Civil Procedure 60(b)(2).3

II. LEGAL STANDARDS

Rule 59(e) provides the procedural mechanism for altering or amending a judgment that has been entered. It may be used to seek remediation for manifest errors of law or fact or to present newly discovered evidence which, if discovered previously, might have affected the court's decision. United States el rel. Schumann v. Astrazeneca Pharmaceuticals, L.P., 769 F.3d 837, 848 (3d Cir. 2014) (citing Max's Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir. 1999)); Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court granted the motion; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010); Max's Seafood Café, 176 F.3d at 677 (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). However, "[b]ecause federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Casualty Co. v. Diversified Indus. Inc., 884 F.Supp. 937, 943 (E.D. Pa. 1995).

Reconsideration is generally appropriate in instances where the court has "misunderstood a party, or has made a decision outside the adversarial issues presented to the [c]ourt by the parties, or has made an error not of reasoning, but of apprehension." York Int'l Corp. v. Liberty Mut. Ins. Co., 140 F.Supp.3d 357, 360-61 (3d Cir. 2015) (quoting Rohrbach v. AT & T Nassau Metals Corp., 902 F.Supp. 523, 527 (M.D. Pa. 1995)). It may not be used as a means to reargue unsuccessful theories that were presented to the court in the context of the matter previously decided "or as an attempt to relitigate a point of disagreement between the [c]ourt and the litigant." Id. at 361 (quoting Ogden v. Keystone Residence, 226 F.Supp.2d 588, 606 (M.D. Pa. 2002)).

Rule 60(b) provides a list of six enumerated grounds that would allow a party to obtain relief from a final judgment, order, or proceeding. One of these grounds includes "newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b)." Fed. R. Civ. P. 60(b)(2). The Rule 60(b)(2) standard "requires that `the new evidence (1) be material and not merely cumulative, (2) could not have been discovered before trial through the exercise of reasonable diligence and (3) would probably have changed the outcome of trial.'" Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 309 (3d Cir. 2001) (quoting Compass Tech., Inc. v. Tseng Labs., Inc., 71 F.3d 1125, 1130 (3d Cir. 1995)).

Normally, the standards that govern motions under Rule 59 and Rule 60(b) are similar. Compass Tech., Inc., 71 F.3d at 1130. However, in this instance, it is clear that the standard under Rule 60(b)(2) requires a trial and, thus, this rule is not applicable to the plaintiffs' instant motion. It is the "function of the motion, and not the caption, [that] dictates which Rule is applicable." United States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003). The court therefore proceeds under Rule 59(e).

In addition to the Rule 59(e) standard set forth above, the standard of review when reconsidering the parties' previous motions relates back to the standards applicable to the underlying decision. York Int'l Corp., 140 F. Supp. 3d at 361. Accordingly, when a motion for reconsideration challenges the district court's decision to grant a motion to dismiss and deny a motion for leave to amend a complaint, the analysis on reconsideration is guided by the standard provided by Federal Rule of Civil Procedure 12 and Federal Rule of Civil Procedure 15.

III. DISCUSSION

The plaintiffs' motion is based on evidence that was uncovered as the parties engaged in ongoing fact discovery. This evidence is not truly "new" in the sense that it puts the defendants on notice of allegations different than those in the original or amended complaint. Nor does this new evidence change the applicable plausibility analysis under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). As such, the plaintiffs' new evidence does not change the court's ultimate conclusion under Rule 12(b)(6) or Rule 15.

A. The Plaintiffs' Newly Discovered Evidence

The plaintiffs' new evidence offered in support of their motion includes, and is summarized, as follows:

(See Doc. 58, at ¶17). Most of the evidence offered by the plaintiffs attempts to show that the defendants' knew that Newell might be dangerous prior to August 5, 2013. The evidence also affirms some of the protracted legal battle that Ross Township had with Newell. This new evidence does not, however, change the court's ultimate conclusion as provided in its August 29, 2016 Memorandum and Order.

B. Rule 12(b)(6) and Rule 15

The plaintiffs, by presenting a myriad of additional facts, suggest that this court's August 29, 2016 decision was premised on the insufficiency of the amount of facts alleged in the complaint and proposed amended complaint. However, a complaint need only set forth its jurisdictional grounds, "a short and plain statement of the claim showing the pleader is entitled to relief," and "a demand for the relief sought." Fed. R. Civ. P. 8(a). Dismissal under Rule 12(b)(6) is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. The facts alleged must be sufficient to "raise a right to relief above the speculative level." Id. at 555. This requirement "calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of" necessary elements of the plaintiff's cause of action. Id. at 556.

Rule 15 allows a party to amend its pleading after the time for amendment has expired. Although the rule permitting amendment is more liberal, amendment is not automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indent., 151 F.R.D. 570, 574 (E.D. Pa.1993). Leave to amend should not be granted where amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Similar to the Rule 12(b)(6) standard, futility of amendment occurs when the complaint, as amended, does not state a claim upon which relief can be granted. See In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.1997) ("In assessing `futility,' the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).").

The court dismissed the plaintiffs' action not based upon the amount of facts alleged, but based upon whether those that were alleged could plausibly provide relief as required by Twombly. This same analysis applied to the court's finding of futility in allowing the plaintiffs to amend their original complaint. Ultimately, the court found that those facts alleged in the complaint and proposed amended complaint could not provide relief. The evidence provided now is merely cumulative of those facts alleged in the plaintiffs' complaint and proposed amended complaint. This new evidence, therefore, does not change the court's previous conclusion that the plaintiffs failed to state a claim under Section 1983 and that amendment would be futile.

The statements made to police by Pagan and Earl Kresge, Jr. and the deposition testimonies of Newell's father, Attorney Kaspszyk, Linda Goss-Kozik, Sheriff Martin, John Kochis, Monica Pilas, and Marsha Beers are currently offered to suggest that the defendants knew of Newell's dangerous propensities. These factual incidents merely add to the facts offered in the plaintiffs' proposed amended complaint. As detailed above, in their proposed amended complaint, the plaintiffs sought to include the following: (1) an incident between Newell and Solicitor Dunn where Newell threatened violence; (2) threatening statements Newell made to Supervisor Kresge at a local diner; (3) an interaction between Newell and John Kochis where Newell implicitly threatened violence by spraying bullets into the trees on his property; (4) statements made by a code enforcement officer that no one should mess with the Newells; and (5) threatening statements Newell made to Sheriff Martin. (See Doc. 51-1, at ¶¶28-31, 34). While the additional statements and deposition testimonies offered now differ in form, the substance and intention behind these facts remain the same—an attempt to show that the defendants' knew Newell was dangerous or had a propensity for violent behavior. This new evidence is not new in the sense that it puts the defendants on notice of an allegation that they were not on notice of before.

Similarly, the deposition testimonies of Supervisor Kresge, Supervisor Beers, and Supervisor Drake reaffirm the various legal actions taken against Newell and the alleged motivations behind those actions. Particularly, it reaffirms the allegations that the Ross Township Supervisors "[p]ursu[ed] legal actions for violations of local zoning and sewer regulations" and "[p]ursu[ed] various violations against Newell for infractions that were ignored against other owners," among other things. (Doc. 1, at ¶¶16(b), (e)). The deposition testimony of Newell's father reaffirms the plaintiffs' allegation that the township's actions were motivated, in part, by Supervisor's Kresge's desire to purchase Newell's property. (Compare Doc. 1, at ¶¶18-20, with, Doc. 58-2, at 20-22). In addition, Supervisor Kresge's deposition testimony reaffirms the plaintiffs' allegation that Supervisor Kresge did not like the way Newell maintained himself and/or his property. (Compare Doc. 1, at ¶21, with, Doc. 58-9, at 52-53, 76). Again, this new evidence is not new in the sense that it puts the defendants on notice of allegations that they were not on notice of before.

C. The Plaintiffs' Failure to State a Valid Section 1983 Claim

The plaintiffs' cumulation of additional evidence also does not change the court's ultimate conclusion under Twombly's plausibility and futility standard for stating a valid claim. As stated above, the state-created danger exception to DeShaney requires that the plaintiffs establish the following four elements:

L.R., ___ F.3d ___, 2016 WL 4608133, at *3; Kneipp, 95 F.3d at 1208. In addition, it is well established that under the fourth prong the plaintiff must sufficiently plead that "a state actor affirmatively used his or her authority in a way that created a danger to the citizen or that rendered the citizen more vulnerable to danger than had the state not acted at all." Bright, 443 F.3d at 281 (emphasis added).

Thus, to the extent the plaintiffs' new evidence is offered to show that the defendants' should have acted in light of their knowledge of Newell's dangerous propensities, the plaintiffs' argument must fail a second time. As further explained in this court's August 29, 2016 Memorandum, the defendants' failures to act do not state a cognizable Section 1983 claim. See Walter v. Pike County, 544 F.3d 182, 194-95 (3d Cir. 2008). As explained by the Supreme Court in DeShaney, the Due Process Clause of the Fourteenth Amendment was intended to "protect the people from the State, not to ensure that the State protected them from each other." 489 U.S. at 196. The state-created danger exception is limited to a set of facts alleging affirmative conduct on the part of the state actor. Thus, the defendants' failures to act can never set forth a valid Section 1983 claim. This conclusion remains true despite the defendants' knowledge that Newell was exhibiting threatening behavior towards various individuals and despite the plaintiffs' offering of additional evidence. See id. No amendment can save this claim.

To the extent the new evidence is offered to show that the defendants' use of legal process against Newell sets forth a viable Section 1983 claim, this argument must also fail a second time. The plaintiffs attempt to reargue the unsuccessful theory asserted in defense of the defendants' motions to dismiss. Instead of addressing each element as it did in its August 29, 2016 Memorandum, the court focuses on the third element of the state-created danger exception and finds that, even after considering the plaintiffs' newly discovered evidence, the plaintiffs' claim based on affirmative conduct must fail yet again.

The third element of the state-created danger theory requires that a plaintiff adequately plead "some relationship . . . between the state and the plaintiff." Phillips v. County of Allegheny, 515 F.3d 224, 242 (3d Cir. 2008). The plaintiff must plead "that the plaintiff was a foreseeable victim of the defendant's acts, or a member of a discrete class of persons subjected to the potential harm brought about by the state's actions, as opposed to a member of the public in general." Kaucher v. County of Bucks, 455 F.3d 418, 431 (3d Cir. 2006). The relationship need not relate directly to a specific plaintiff and may relate to an "identifiable and discreet class of persons subject to the harm the state allegedly has created." Morse, 132 F.3d at 914. The ultimate test is one of foreseeability. Id. However, "[w]hat is clear is that a member of the general public may not qualify." Id. at 913.

The plaintiffs' complaint and proposed amended complaint allege that "[a]s a resident of Ross Township in attendance at the Supervisor's public meeting of August 5, 2013, Plaintiff, Patricia A. Bauer, was a member of a discreet class of persons made vulnerable to the enhanced risk of bodily injury, death and psychological trauma caused by the Defendants' actions." (Doc. 1, at ¶47; Doc. 51-1, at ¶52). The plaintiffs, in their brief in support of the motion for reconsideration, suggest that Mrs. Bauer was a member of a class of persons comprised of those attending the August 5, 2013 Ross Township meeting and that she was a foreseeable victim. That meeting, however, was open to the general public. The plaintiffs recognize as much when describing Mrs. Bauer "[a]s a resident of Ross Township in attendance at the Supervisor's public meeting of August 5, 2013." (Id.) (emphasis added).

None of the evidence offered by the plaintiffs suggests that the August 5, 2013 meeting was limited to particular persons. Nothing in the evidence gives rise to an inference that the particular meeting held on August 5, 2013 was a known target by Newell, therein making those in attendance at that particular meeting foreseeable victims. Newell might have "snapped" at any moment in time based on the allegations in the plaintiffs' complaint and proposed amended complaint. Newell's threats, as shown by the sum total of the plaintiffs' evidence, were primarily directed at the Ross Township Supervisors, Solicitor Dunn, Sheriff Martin, and, possibly, code enforcement officer John Kochis and sheriff deputies serving Newell with papers. There was nothing unusual about the August 5, 2013 meeting. Newell was not invited to attend, nor was he a scheduled topic of discussion. In addition, threats or indications that "people," more generally, would die, due to the township's actions does not, in itself, form a discrete, identifiable class. (Doc. 1, at ¶¶28, 38; Doc. 51-1, at ¶¶32, 43).

The plaintiffs' bare legal conclusion that Mrs. Bauer was part of a discrete class of persons subject to harm is insufficient to satisfy the third prong of the state-created danger exception to DeShaney and is insufficient to survive a motion to dismiss. See Phillips, 515 F.3d at 231 ("more than labels and conclusions, and a formulaic recitation of the elements of a cause of action" is required to state a plausible claim). Thus, even under the most liberal reading of the complaint, the plaintiffs are unable to adequately plead all of the elements of a valid Section 1983 claim. Any amendment would be futile as attendance at the August 5, 2013, was, by definition, open to the general public. Thus, even if the court were to conclude that the quantum of additional evidence makes the plaintiffs' Section 1983 more plausible under the first, second, and fourth prong of the state-created danger theory, the claim would still fail under the third prong. No amendment can cure this deficiency.

IV. CONCLUSION

For the foregoing reasons, the plaintiffs' motion for reconsideration of the court's August 29, 2016 decision is DENIED. The plaintiffs have failed to provide any additional evidence that would alter the court's underlying conclusion as provided in the court's August 29, 2016 Memorandum and Order granting the defendants' motions to dismiss and denying the plaintiffs' request to amend their complaint. Accordingly, the judgment shall stand. An appropriate order shall follow.