# Vorobyev v. Bloomsburg University of Pennsylvania

> District Court, M.D. Pennsylvania · May 25, 2021

URL: https://www.frixlaw.com/law-library/cases/10410351

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** May 25, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10410351

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410351. Public record. Not legal advice.