Vorobyev v. Bloomsburg University of Pennsylvania

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANDREY VOROBYEV, :

As Admin. to the Estate of Ivan : Civil No. 3:20-CV-1384

Vorobyev, deceased, :

:

Plaintiff :

: (Magistrate Judge Carlson)

v. :

:

BLOOMSBURG UNIV. OF :

PENNSYLVANIA, et al., :

:

Defendants :

MEMORANDUM OPINION

I. Statement of Facts and of the Case

This case involves the tragic death of an eighteen-year-old college student,

Ivan Vorobyev, who suffered cardiac arrest after complications from his Type 1

diabetes. At the time of his death, Ivan Vorobyev was a student enrolled at

Bloomsburg University, a state institution of higher education. The plaintiff, Andrey

Vorobyev, is the father of Ivan Vorobyev and the administrator of his son’s estate.

Vorobyev has filed a complaint as the administrator of Ivan’s estate, alleging

violations of 42 U.S.C. § 1983 and related state law negligence claims against

Bloomsburg University, the Commonwealth of Pennsylvania, CRNP Laura Wolfe,

and several unnamed defendants. Pending before the court is the defendants’ motion

to dismiss the plaintiff’s complaint. (Doc. 7).

The plaintiff’s federal civil rights claim, which is the sole basis for the

assertion of federal jurisdiction in this case, rests upon the premise that the medical

care received by Ivan Vorobyev was so deficient that it rose to the level of a state-

created danger, violating Vorobyev’s right to due process. While these events are

doubtless tragic and may well give rise to state law negligence and malpractice

claims, constrained as we are to follow the very narrow interpretation of definition

of the state created danger doctrine adopted by the Court of Appeals, we will grant

the motion to dismiss this claim without prejudice to litigation of any state law tort

claims in state court.

The well-pleaded facts in the plaintiff’s complaint, which we must accept as

true for purposes of considering this motion to dismiss, are as follows:

Ivan Vorobyev, the plaintiff’s son, was a student at Bloomsburg University in

November of 2018. (Doc. 1, ¶ 5). Ivan suffered from Type 1 diabetes since

childhood. (Id., ¶ 22). Prior to October 2018, Ivan had filled out a Health History

Form, on which he indicated that he suffered from Type 1 diabetes since age ten.

(Id., ¶ 24). On October 25, 2018, Ivan visited the Student Health Center on campus

and was seen by RN Aukamp, who documented his past history of diabetes. (Id., ¶

25). Ivan informed RN Aukamp that he was experiencing unstable blood sugars and

had been periodically missing class. (Id.) During this visit, Ivan gave RN Aukamp a

letter signed by two of his medical providers—Dr. Tamborlane and Nurse

Practitioner Weyman—which contained instructions regarding Ivan’s diabetes

management. (Id., ¶ 26; Ex. A). This letter detailed Ivan’s past complications with

his diabetes and contained specific instructions for managing his diabetes in the

college environment at Bloomsburg, which these medical providers opined posed

additional challenges for Ivan. (Id., ¶ 27; Ex. A). The letter also set forth signs and

symptoms, including sustained high blood sugar levels, nausea, and vomiting,

which, if left untreated, could lead to life-threatening diabetic ketoacidosis. (Id.; Ex.

A).

About a month later, Ivan had scheduled an appointment at the Student Health

Center on November 28, 2018 at 2:20p.m. (Id., ¶ 29). Prior to this appointment, Ivan

called the Student Health Center at approximately 12:04p.m. and left a message

stating that he had been vomiting for several hours and wanted to speak with a nurse.

(Id., ¶ 29). RN Zalewski returned Ivan’s call and documented his symptoms of high

blood sugar, nausea, and vomiting, and told Ivan to bring his insurance card to his

appointment in case he was sent to the emergency room. (Id., ¶ 30).

At his scheduled appointment, Ivan was seen by CRNP Wolfe, who evaluated

his symptoms. (Id., ¶ 31). The complaint asserts that Wolfe knew of Ivan’s Type 1

diabetes based on the health form he had filled out, the letter from his medical

providers, and the prior notations in his medical chart by RN Aukamp and RN

Zalewski. (Id., ¶¶ 32-33). During this visit, Wolfe documented Ivan’s high blood

sugar levels, which measured 150mg/dL, and noted his nausea, vomiting, abdominal

pain, dry mouth, and dizziness. (Id., ¶ 34). Ivan’s glucose testing was then reported

at 469mg/dL, whereas the normal reference range is 79 to 115 mg/dL. (Id., ¶ 35).

Wolfe diagnosed Ivan with “nausea with vomiting, unspecified,” prescribed him

chewable bismuth tablets and diphenhydramine, and sent him back to his dorm. (Id.,

¶ 36).

Ivan returned to his dorm, waited for his father to pick him up after his

appointment, and went home with his father. (Id., ¶ 40). Upon his return home, his

blood sugar had increased to approximately 600mg/dL. (Id., ¶ 41). Later that night,

Ivan suffered cardiac arrest and was transferred by ambulance to Lehigh Valley

Hospital – Pocono. (Id., ¶¶ 42-43). Ultimately, Ivan died at the hospital on November

29, 2018. (Id., ¶ 43). His cause of death was listed as cardiac arrest from

hypovolemia, severe diabetic ketoacidosis, cerebral edema, and brain death. (Id.)

Thus, the plaintiff, as the administrator of Ivan’s estate, filed the instant

complaint on August 6, 2020. (Doc. 1). The complaint asserts claims under 42

U.S.C. § 1983, alleging a substantive due process claim under the Fourteenth

Amendment against Bloomsburg, the Commonwealth, Wolfe, and several unnamed

and unidentified defendants (Count I); a medical negligence claim against Wolfe

(Count II); respondeat superior liability against all defendants except Wolfe (Count

III); corporate negligence against all defendants except Wolfe (Count IV); wrongful

death against all defendants (Count V); and a survival action against all defendants

(Count VI). Counts II through V of the complaint allege state law torts. Given that

there appears to be no diversity of citizenship in this case, we should entertain these

claims only if we find that Vorobyev’s § 1983 state-created danger claim survives.

Recognizing that this federal civil rights claim is the lynchpin for federal jurisdiction

in this case, the defendants filed the instant motion to dismiss, arguing that the

complaint fails to state a claim upon which relief can be granted. (Doc. 7).

On this score, the plaintiff concedes the § 1983 and state law claims against

Bloomsburg and the Commonwealth, on the grounds that the claims against these

defendants are barred by the Eleventh Amendment. For the same reasons, the

plaintiff also concedes the § 1983 claim against Wolfe in her official capacity only.

However, the plaintiff contends that Wolfe is liable under § 1983 in her individual

capacity under the state-created danger doctrine, and that we should exercise

supplemental jurisdiction over the state law claims against Wolfe.

This motion is fully briefed and is ripe for resolution. (Docs. 9, 10, 14). For

the following reasons, given the highly exacting standards prescribed by the courts

for state-created danger claims, we find that the § 1983 claim against Wolfe fails as

a matter of law. Further, because we find that this federal claim fails, we will decline

to exercise supplemental jurisdiction over the plaintiff’s state law claims.

Accordingly, we will grant the defendants’ motion to dismiss without prejudice to

the pursuit of these state law tort claims in state court..

II. Discussion

A. Motion to Dismiss – Standard of Review

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for

the legal sufficiency of a complaint, the United States Court of Appeals for the Third

Circuit has aptly noted the evolving standards governing pleading practice in federal

court, stating that:

Standards of pleading have been in the forefront of jurisprudence in

recent years. Beginning with the Supreme Court’s opinion in Bell

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our

opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.

2008)], and culminating recently with the Supreme Court’s decision in

Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards

have seemingly shifted from simple notice pleading to a more

heightened form of pleading, requiring a plaintiff to plead more than

the possibility of relief to survive a motion to dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

In considering whether a complaint fails to state a claim upon which relief

may be granted, the court must accept as true all allegations in the complaint and all

reasonable inferences that can be drawn therefrom are to be construed in the light

most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,

20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s

bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court

need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not

alleged.” Associated Gen. Contractors of Cal. v. California State Council of

Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a

plaintiff must provide some factual grounds for relief which “requires more than

labels and conclusions, and a formulaic recitation of the elements of a cause of

actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right

to relief above the speculative level.” Id.

In keeping with the principles of Twombly, the Supreme Court has

underscored that a trial court must assess whether a complaint states facts upon

which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,

556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to

dismiss, a court should “begin by identifying pleadings that, because they are no

more than conclusions, are not entitled to the assumption of truth.” Id., at 679.

According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather,

in conducting a review of the adequacy of a complaint, the Supreme Court has

advised trial courts that they must:

[B]egin by identifying pleadings that because they are no more than

conclusions are not entitled to the assumption of truth. While legal

conclusions can provide the framework of a complaint, they must be

supported by factual allegations. When there are well-pleaded factual

allegations, a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to relief.

Id., at 679.

Thus, following Twombly and Iqbal, a well-pleaded complaint must contain

more than mere legal labels and conclusions; it must recite factual allegations

sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere

speculation. As the United States Court of Appeals for the Third Circuit has stated:

[A]fter Iqbal, when presented with a motion to dismiss for failure to

state a claim, district courts should conduct a two-part analysis. First,

the factual and legal elements of a claim should be separated. The

District Court must accept all of the complaint’s well-pleaded facts as

true, but may disregard any legal conclusions. Second, a District Court

must then determine whether the facts alleged in the complaint are

sufficient to show that the plaintiff has a “plausible claim for relief.” In

other words, a complaint must do more than allege the plaintiff’s

entitlement to relief. A complaint has to “show” such an entitlement

with its facts.

Fowler, 578 F.3d at 210-11.

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow[ ] the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, [ ] “stops short of the

line between possibility and plausibility of ‘entitlement of relief.’ ”

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,

132 S. Ct. 1861 (2012).

In practice, consideration of the legal sufficiency of a complaint entails a

three-step analysis:

First, the court must “tak[e] note of the elements a plaintiff must plead

to state a claim.” Iqbal, 129 S. Ct. at 1947. Second, the court should

identify allegations that, “because they are no more than conclusions,

are not entitled to the assumption of truth.” Id., at 1950. Finally, “where

there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an

entitlement for relief.”

Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting

Iqbal, 129 S. Ct. at 1950).

In considering a motion to dismiss, the court generally relies on the complaint,

attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,

268 (3d Cir. 2007). The court may also consider “undisputedly authentic

document[s] that a defendant attached as an exhibit to a motion to dismiss if the

plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.

Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,

“documents whose contents are alleged in the complaint and whose authenticity no

party questions, but which are not physically attached to the pleading, may be

considered.” Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.

2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002)

(holding that “[a]lthough a district court may not consider matters extraneous to the

pleadings, a document integral to or explicitly relied upon in the complaint may be

considered without converting the motion to dismiss in one for summary

judgment”). However, the court may not rely on other parts of the record in

determining a motion to dismiss, or when determining whether a proposed amended

complaint is futile because it fails to state a claim upon which relief may be granted.

Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).

It is against these legal benchmarks that we consider the defendants’ motion

to dismiss.

B. The Defendants’ Motion to Dismiss Will Be Granted.

Here, the plaintiff brings claims under § 1983 and related state law claims

against the Commonwealth of Pennsylvania, Bloomsburg University, Defendant

Wolfe, and several unidentified defendants, arguing that these entities and

individuals are liable for Ivan’s ultimate demise. As we have explained, the plaintiff

has conceded the claims against the Commonwealth, Bloomsburg University, and

the § 1983 claim against Wolfe in her official capacity, as these claims are barred by

the Eleventh Amendment. Accordingly, these claims will be dismissed.

With respect to the § 1983 claim against Wolfe in her individual capacity, the

plaintiff alleges that, among other things, Wolfe’s failure to diagnose Ivan with

diabetic ketoacidosis and to contact emergency medical services constitutes a state-

created danger, a recognized substantive due process claim. In essence, the plaintiff

alleges that Wolfe’s inaction regarding Ivan’s medical needs rendered him more

vulnerable to danger and increased his risk of harm. Specifically, the plaintiff

contends that Wolfe incorrectly diagnosed Ivan with nausea and vomiting; failed to

provide a differential diagnosis consistent with his signs of diabetes complications;

failed to conform to applicable standards of care of a CRNP; failed to recognize

Ivan’s symptoms; failed to send or refer Ivan to emergency services or a specialist;

delayed Ivan’s treatment by a specialist; improperly assessed Ivan’s medical

condition; and failed to timely and properly make observations regarding Ivan’s

condition. (Doc. 1, ¶¶ 60(a)-(l)).

An important starting point for this kind of substantive due process analysis

is recognition that the Supreme Court has found that the Due Process Clause “d[oes]

not impose an affirmative obligation on the state to protect its citizens[.]” Bright v.

Westmoreland County, 443 F.3d 276, 280 (3d Cir. 2006). On this score, the Supreme

Court has stated:

The Clause is phrased as a limitation on the State’s power to act, not as

a guarantee of certain minimal levels of safety and security. It forbids

the State itself to deprive individuals of life, liberty, or property without

“due process of law,” but its language cannot fairly be extended to

impose an affirmative obligation on the State to ensure that those

interests do not come to harm through other means. Nor does history

support such an expansive reading of the constitutional text.

DeShaney v. Winnebago County Dep’t of Social Services, 489 U.S. 189, 195 (U.S.

1989). As such, the minimal “affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its expressions of intent to help

him, but from the limitation which it has imposed on his freedom to act on his own

behalf.” Bright, 443 F.3d at 280-81 (quoting DeShaney, 489 U.S. at 199-200). In

other words, “DeShaney stands for the proposition that the Due Process Clause

imposes no affirmative duty to protect a citizen who is not in state custody.” Bright,

443 F.3d at 281.

However, DeShaney does not preclude the existence of constitutional

violations where “state authority is affirmatively employed in a manner that injures

a citizen or renders him ‘more vulnerable to injury from another source than he or

she would have been in the absence of state intervention.’ ” Bright, 443 F.3d at 281

(quoting Schieber v. City of Philadelphia, 320 F.3d 409, 416 (3d Cir. 2003)). The

Third Circuit has accordingly recognized, but narrowly construed, the state-created

danger doctrine as a carefully crafted and specifically defined exception to

DeShaney’s scope. The four “essential elements” of the doctrine follow: (1) the harm

ultimately realized must have been foreseeable and fairly direct; (2) a state actor

must have acted with a degree of culpability that shocks the conscience; (3) there

must have been a relationship between the state actor and the plaintiff such 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;

and (4) a state actor must have affirmatively used his or her authority in a way that

created a danger to the citizen or caused the citizen to be more vulnerable to danger

than had the state not acted at all. Id.

Initially, for harm to be foreseeable, the Third Circuit has required that a

plaintiff must allege “an awareness of risk that is sufficiently concrete to put the

[state] actors on notice of the harm.” However, it is not enough for the harm to just

be foreseeable—it must also be fairly direct, or sufficiently close in time to the

defendant’s actions and not separated by intervening forces and actions. In other

words, the harm cannot be “too attenuated.” Dorley v. S. Fayette Twp. Sch. Dist.,

129 F. Supp. 3d 220, 233 (W.D. Pa. 2015). “[I]t is insufficient to plead that state

officials’ actions took place somewhere along the causal chain that ultimately led to

the plaintiff’s harm.” D.M. v. Phila. Hous. Auth., 613 Fed. Appx. 187, 190 (3d Cir.

2015).

Further, while perhaps the most “elusive” element, as coined by the Third

Circuit, the second element of the state created danger doctrine—whether the

conduct shocks the conscience—turns on the circumstances given in a particular

case. Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005). The Third

Circuit has stated that where an actor has the “luxury of proceeding in a deliberate

fashion[,]” the conscience is usually only “shocked” upon a showing that the actor

deliberately harmed the victim. Id. This could be demonstrated by showing that the

actor was deliberately indifferent in “consciously disregard[ing] a substantial risk of

serious harm” or ignoring a patently obvious risk that the actor should have been

aware of. Keener v. Hribal, 351 F. Supp. 3d 956, 972 (W.D. Pa. 2018). The danger

must have been foreseeable to the actor, and the actions that followed must have

evinced a willingness to ignore that risk.

In this regard, it is apparent that “[m]ere negligence is not enough to shock

the conscience.” Sanford v. Stiles, 456 F.3d 298, 311 (3d Cir. 2006). Therefore, in a

medical context, the question is not whether a state actor should have recognized the

need to take further action to address an individual’s physical or emotional distress.

Rather the issue is whether the state actor displayed a conscience-shocking level of

deliberate indifference to a medical or emotional concerns. Id. Thus, when a state-

actor, medical professional erroneously assures a patient that he has nothing to worry

about, it has been held that the doctor’s conduct, while perhaps negligent, does not

rise to the level of a conscience shocking affirmative cat which gives rise to liability

under the state-created danger doctrine. Ye v. United States, 484 F.3d 634, 642 (3d

Cir. 2007). Likewise the failure of a counselor to recognize the suicide risk presented

by another, standing alone, does not constitute conscience-shocking conduct

triggering the state created danger doctrine. Sanford, 456 F.3d at 311.

Third, the “relationship” requirement necessitates contact between the actor

and the plaintiff such that the plaintiff could be classed as a foreseeable victim in

tort. Brown v. Pa. Dep’t of Health Emergency Med. Servs. Training Inst., 318 F.3d

473, 479 (3d Cir. 2003). The plaintiff need not be in the actor’s custody to maintain

an action under the state-created danger doctrine.

Lastly, and most critically in this case, is the requirement that a defendant

engage in affirmative conduct to cause the alleged danger, since “[l]iability under

the state-created danger theory is predicated upon the states’ affirmative acts which

work to the plaintiffs’ detriments in terms of exposure to danger.” D.R. by L.R. v.

Middle Bucks Area Vo. Tech. Sch., 972 F.2d 1364, 1374 (3d Cir. 1992) (en banc);

see also Brown v. Grabowski, 922 F.2d 1097, 1100-01 (3d Cir. 1990) (explaining

“that a state’s failure to take affirmative action to protect a victim from the actions

of a third party will not, in the absence of a custodial relationship . . . support a civil

rights claim”). The fourth element of a state-created danger claim thus “asks whether

a defendant exercised his or her authority to create a foreseeably dangerous

situation.” Kaucher v. County of Bucks, 455 F.3d 418, 432 (3d Cir. 2006) (emphasis

added). In other words, “[t]here must be a direct causal relationship between the

affirmative act of the state and plaintiff’s harm.” Id. The state’s action should be the

“but for” cause of the danger faced by the plaintiff. Id. “It is misuse of state authority,

rather than a failure to use it, that can violate the Due Process Clause.” Bright, 443

F.3d at 282.

Although the distinction between action and inaction may not always be clear,

the Third Circuit Court of Appeals has “never found a state-created danger claim to

be meritorious without an allegation and subsequent showing that state authority was

affirmatively exercised in some fashion.” Phillips v. County of Allegheny, 515 F.3d

224, 235 (3d Cir. 2008). Rather, the Court has held that merely refraining from acting

or “exercis[ing] state authority [is] not a violation of the Due Process Clause . . . .”

Bright, 443 F.3d at 285; see also Tittensor v. County of Montgomery, No. 02-8011,

2003 WL 22358450, at *2-3 (E.D. Pa. Sept. 8, 2003) (holding that the county

government and health department did not create the harm when they knew of an E.

coli outbreak at a private farm but did not warn patrons or otherwise act and the

plaintiff’s children subsequently became infected). On this score, it has been held

that an misdiagnosis and mistreatment of a medical condition which led to an

erroneous assurance that the patient would be fine, did not meet the affirmative

action threshold required for the state created danger doctrine. Ye, 484 F.3d at 642.

In the instant case, the plaintiff relies on Kneipp v. Tedder, 95 F.3d 1199 (3d

Cir. 1996), arguing that Wolfe’s inactions constituted an affirmative act that

rendered Ivan more vulnerable to harm. In Kneipp, the Third Circuit held that police

officers used their authority to create a dangerous situation when the officers stopped

an intoxicated couple, allowed the husband to proceed home while detaining the

wife, and then sent the wife to walk home alone in the cold, after which she was

found dead at the bottom of an embankment. Id. at 1209. The Court reasoned that

the officers placed the woman in a worse position by allowing her husband to go

home, who conceivably would have escorted her some safely. Id. In a subsequent

case, the Court explained that the affirmative act of the officers in Kneipp was the

choice “to displace the caretaker of someone who was clearly unable to care for

herself.” L.R., 836 F.3d at 244; see also Johnson v. City of Phila., 975 F.3d 394, 309

(3d Cir. 2020) (explaining that in Kneipp, “[t]he danger . . . was not the plaintiff’s

intoxicated journey from tavern to domicile. Rather it was the ‘stated-created

danger’ of removing her male companion, who presumably would have sheltered

her from peril, that violated the guarantee of due process . . .”) (citations omitted).

In the instant case, we cannot conclude that CRNP Wolfe acted affirmatively

in a conscious-shocking fashion to create a dangerous situation for Ivan or render

him more vulnerable to danger. The complaint lists several actions that Wolfe

allegedly failed to take, rather than any affirmative conduct by Wolfe regarding

Ivan’s medical care. On this score, as we have noted, the complaint alleges that

Wolfe incorrectly diagnosed Ivan with nausea and vomiting; failed to provide a

differential diagnosis consistent with his signs of diabetes complications; failed to

conform to applicable standards of care of a CRNP; failed to recognize Ivan’s

symptoms; failed to send or refer Ivan to emergency services or a specialist; delayed

Ivan’s treatment by a specialist; improperly assessed Ivan’s medical condition; and

failed to timely and properly make observations regarding Ivan’s condition. (Doc. 1,

¶¶ 60(a)-(l)). If a false assurance by a doctor that a patient is well is insufficient to

constitute an affirmative act, Ye, 484 F.3d at 642, it follows that a failure to act,

while perhaps negligent, will not satisfy this element of the state created danger

doctrine.

Thus, the plaintiff’s state-created danger claim is based on Wolfe’s inaction,

rather than any affirmative conduct by Wolfe to create a dangerous situation for Ivan

or render him more vulnerable to danger. This is simply not enough to meet the

fourth element of a state-created danger claim under § 1983. See e.g., Gayemen v.

Sch. Dist. of City of Allentown, 712 F. App’x 218 (3d Cir. 2017) (failure to protect

students from gang-related violence at school did not amount to a state-created

danger); B.W. v. Career Tech. Center of Lackawanna Cnty., 422 F.Supp.3d 859, 899

(M.D. Pa. 2019) (“Despite the plaintiffs’ allegations [of the defendant’s failure to

act to stop abuse of students], the Third Circuit has consistently found that ‘failures

to act cannot form the basis of a valid § 1983 [state-created danger] claim’”)

(citations omitted); Lansberry v. Altoona Area Sch. Dist., 318 F.Supp.3d 739 (W.D.

Pa. 2018) (failure to intervene and stop bullying did not constitute an affirmative

action for a state-created danger claim); Bridges ex rel. D.B. v. Scranton Sch. Dist.,

66 F.Supp.3d 570 (M.D. Pa. 2014) (allegation of failing to train school principal

regarding school bullying did not constitute an affirmative act for a state-created

danger claim).

Further, to the extent that the plaintiff’s allegations sound in negligence,

“[m]ere negligence is not enough to shock the conscience.” Sanford, 456 F.3d at

311. Therefore, in a medical context in assessing a state created danger claim, the

controlling question is not whether a state actor should have recognized the need to

take further action but whether the state actor displayed a conscience-shocking level

of deliberate indifference to a medical or emotional concerns. Id.

Here we cannot say that the well-pleaded facts disclose deliberate indifference

to Ivan Vorobyev’s medical needs. Rather, the complaint, at most, alleges that

Wolfe was highly negligent in the face of an existing medical problem that was

allowed to worsen through inaction. That simply is not enough under Third Circuit

precedent to support a cognizable claim under the state-created danger doctrine.

Accordingly, this claim fails as a matter of law and will be dismissed.

Finally, Vorobyev has asserted various state law claims against Wolfe. We

note that the proposed disposition of the plaintiff's federal legal claims, in turn,

suggests the appropriate course for the court to follow in addressing any ancillary

state law claims that the plaintiff may wish to pursue against this defendant. In a case

such as this, where the jurisdiction of the federal court was premised on alleged

federal claims which are found to be subject to dismissal, the proper course generally

is for “the court [to] decline to exercise supplemental jurisdiction over the plaintiff's

state law claims. 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise

supplemental jurisdiction over a claim under subsection (a) if-... the district court

has dismissed all claims over which it has original jurisdiction.”); United Mine

Workers v. Gibbs, 383 U.S. 715, 726 (1966) (holding that when federal causes of

action are dismissed, federal courts should not separately entertain pendent state

claims).” Bronson v. White, No. 05-2150, 2007 WL 3033865, *13 (M.D. Pa. Oct.

15, 2007) (Caputo, J.) (adopting report and recommendation dismissing ancillary

malpractice claim against dentist); see Ham v. Greer, 269 F. App'x 149, 151 (3d Cir.

2008) (citing United Mine Workers, 383 U.S. at 726 and Tully v. Mott Supermkts.,

Inc., 540 F.2d 187, 196 (3d Cir. 1976).) (“Because the District Court appropriately

dismissed [the inmate's] Bivens claims, no independent basis for federal jurisdiction

remains”). As the Supreme Court has aptly observed:

Needless decisions of state law should be avoided both as a matter of

comity and to promote justice between the parties, by procuring for

them a surer-footed reading of applicable law. Certainly, if the federal

claims are dismissed before trial, even though not insubstantial in a

jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers, 383 U.S. at 726 (footnotes omitted).

Here, we have found that Vorobyev’s federal claims are subject to dismissal

at the outset of this litigation. Therefore, in the exercise of our discretion in this

district, we should decline to assert supplemental jurisdiction over potential ancillary

state law claims in this case where all potential federal claims brought before us

failed as a matter of law. Accordingly, these pendent state law claims will be

dismissed without prejudice.

III. Conclusion

For the foregoing reasons, the defendants’ motion to dismiss (Doc. 7) will be

GRANTED, and the plaintiff’s complaint will be dismissed.

An appropriate order follows.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge