Vorobyev v. Bloomsburg University of Pennsylvania

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANDREY VOROBYEV, as Admin to the : Civil No. 3:20-CV-01384

Estate of Ivan Vorobyev, deceased :

Plaintiff, :

:

v. :

:

LAURA WOLFE, MSN, CRNP : (Magistrate Judge Carlson)

:

Defendant. :

MEMORANDUM OPINION

I. Introduction

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.

Andrey Vorobyev 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. The plaintiff has conceded that all of his claims

except for the claims against Wolfe in her individual capacity are barred by the

Eleventh Amendment.

In Vorobyev v. Bloomsburg Univ. of Pennsylvania (Vorobyev I), 541 F.

Supp. 3d 524 (M.D. Pa. 2021), vacated and remanded, 2022 WL 1499278 (3d Cir.

2022), we dismissed the plaintiff’s state-created danger claim under § 1983 against

Wolfe. On appeal, the Third Circuit vacated our order reasoning that we should have

granted leave to the plaintiff to amend his complaint and engaged in a futility

analysis of this counselled complaint. Vorobyev v. Bloomsburg Univ. of

Pennsylvania (Vorobyev II), 2022 WL 1499278, at *3 (3d Cir. 2022). The Third

Circuit remanded the case to allow the plaintiff to amend his complaint, unless we

determine such amendment would be futile. Id. Pending before the court is the

plaintiff’s motion to amend his complaint. (Doc. 35).

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 his 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 the definition of the

state-created danger doctrine adopted by the Third Circuit, we will deny the

plaintiff’s motion to amend his complaint because we find such amendment would

be futile.

II. Statement of Facts and of the Case

The following facts are taken from the plaintiff’s proposed amended

complaint.1 We must accept these facts as true for purposes of considering the

plaintiff’s motion to amend.

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

November of 2018. (Doc. 36, ¶¶ 5-6). 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 clearly stated: “Sustained

1 The factual allegations in the plaintiff’s proposed amended complaint (Doc. 36)

are substantially similar to those in his original complaint (Doc. 1) with some

specific exceptions, which are noted in our recount of the facts.

high blood sugar levels may affect concentration and if untreated, can lead to nausea

and vomiting and more serious complications such as ketosis and, if left untreated,

life-threatening diabetic ketoacidosis (DKA).” (Id., ¶ 18; 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 12:04 p.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 plaintiff 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 115mg/dL. (Id., ¶ 35).

According to the plaintiff, Wolfe “affirmatively misdiagnosed Decedent with

a differential diagnosis inconsistent with the clear and obvious acute complications

of type 1 diabetes suffered by Ivan Vorobyev.” (Id., ¶ 28). Wolfe diagnosed Ivan

with “nausea with vomiting, unspecified.” (Id., ¶ 29). It is alleged that Wolfe also

inappropriately prescribed to Ivan chewable bismuth tablets and Diphenyhydramine.

(Id.) The plaintiff alleges that Wolfe’s misdiagnosis and inappropriate prescription

of relatively minor medicines “undercut and rendered hollow [Wolfe’s] question to

Decedent whether he wanted to go to an emergency department.” (Id., ¶ 42). Further

the plaintiff asserts that Ivan’s decision not to go to an emergency department “was

not [a] knowing, voluntary or intelligent medical decision” because it was based on

Wolfe’s misdiagnosis and inappropriate prescription of medicine. (Id., ¶ 43).

More specifically the plaintiff alleges the following:

Defendant Wolfe acted in a willful disregard of the safety of Ivan

Vorobyev when she: . . .

(l) Prescribed the wrong medication for Ivan Vorobyev;

(m) Declined to keep Ivan Vorobyev in the Student Health Center for

observation until his father arrived;

(n) Declined to refer Ivan Vorobyev to a specialist;

(o) Declined to order that Ivan Vorobyev be taken to an emergency

department;

(p) Misled Ivan Vorobyev about the seriousness of his symptoms;

(q) Relied upon Ivan Vorobyev, an 18 year old who was not a

medical professional to make the decision that a medical

professional should make about whether or not to send the patient

to an emergency department;

(r) Sent Ivan Vorobyev to his dormitory where he would not be

monitored or cared for by a medical professional;

(s) Deprived Ivan Vorobyev of his liberty to go to an emergency

department by misleading him about the seriousness of his

symptoms and by sending him to his dormitory;

(Id., ¶ 60(l)-(s)). After Wolf released Ivan to his dorm, Ivan waited in is dorm for his

father to pick him up 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.)

The plaintiff, as the administrator of Ivan's estate, filed the original complaint

on August 6, 2020. (Doc. 1). The original complaint asserted 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 original complaint alleged state law torts.

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

in this case, the defendants filed a 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 conceded 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 conceded 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.

We granted the defendants’ motion to dismiss. Vorobyev I, 541 F. Supp. 3d

524 (M.D. Pa. 2021), vacated and remanded, 2022 WL 1499278. On appeal, the

United States Court of Appeals for the Third Circuit vacated and remanded the case

Vorobyev II, 2022 WL 1499278 (3d Cir. 2022), holding that while the plaintiff’s

complaint did not sufficiently allege facts to support a state-created danger claim,

we did not grant leave to the plaintiff to amend his complaint and should have

engaged in a futility analysis. Id. The Third Circuit remanded the case to allow the

plaintiff to amend his complaint, unless we determine such amendment would be

futile. Id.

Following this remand, on May 12, 2022, we entered an order directing the

plaintiff to file a motion to amend his complaint and submit a proposed amended

complaint. (Doc. 32). On June 23, 2022, the plaintiff filed a motion to amend his

complaint accompanied by a proposed amended complaint. (Docs. 35-36). The

proposed amended complaint asserts the following claims against Wolfe in her

individual capacity: substantive due process under 42 U.S.C. § 1983 (Count I);

medical negligence (Count II); wrongful death (Count III); and a survival action

claim (Count VI). (Doc. 36). The motion to amend has been briefed and is ripe for

resolution.

Our review of the proposed amended complaint leads us to conclude that

amendment of the plaintiff’s state-created danger claim is futile. We cannot conclude

from the allegations in the amended complaint that Wolfe deprived Ivan of his liberty

in such a way to satisfy the fourth element required to invoke the state-created danger

doctrine—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. Moreover, we find that the law was not

clearly established at the time of Wolfe’s alleged violative act; therefore, Wolfe is

shielded by the doctrine of qualified immunity. Accordingly, we will deny the

plaintiff’s motion to amend.

III. Discussion

A. Motion to Amend and Supplement Complaints – Standard of

Review

Rule 15 of the Federal Rules of Civil Procedure governs amendments and

supplementation of pleadings. Fed. R. Civ. P. 15. Rule 15(a) authorizes a party to

amend his pleading once as a matter of course within 21 days after serving it, or if

the pleading is one to which a responsive pleading is required, 21 days after service

of the responsive pleading, or 21 days after service of a dispositive motion under

Rule 12, whichever is earlier. Fed. R. Civ. P. 15(a)(1)(A) and (B). “In all other cases,

a party may amend its pleading only with the opposing party's written consent, or

the court's leave,” which courts are to freely give “when justice so requires.” Fed. R.

Civ. P. 15(a)(2). Consistent with this policy, leave to amend rests in the discretion

of the court and may, when justice so requires, be denied if the court finds “undue

delay, bad faith or dilatory motive on the part of the movant, failure to cure

deficiencies by amendments previously allowed undue prejudice to the opposing

party by virtue of the allowance of the amendment, futility of amendment, etc.”

Foman v. Davis, 371 U.S. 178, 182 (1962); see also Oran v. Stafford, 226 F.3d 275,

291 (3d Cir. 2000).

“The decision of whether to permit a supplemental pleading is within this

Court's discretion.” Hassoun v. Cimmino, 126 F.Supp.2d 353, 360-361 (D.N.J.

2000) (citing Owens Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185, 1188–89

(3d Cir. 1979); Burns v. Exxon Corp., 158 F.3d 336, 344 (5th Cir. 1998)). Therefore,

decisions regarding motions to amend or supplement pleadings rest in the sound

discretion of the district court and will not be disturbed absent an abuse of that

discretion. See e.g., Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008);

Cureton v. National Collegiate Athletic Ass'n., 252 F.3d 267 (3d Cir. 2001).

That discretion, however, is governed by certain basic principles, principles

that are embodied in Rule 15 of the Federal Rules of Civil Procedure. In this regard,

while Rule 15 provides that leave to amend should be freely given when justice so

requires, the district court still retains broad discretion to deny a motion to amend,

Bjorgung v. Whitetail Resort, LP, 550 F.3d 263 (3d Cir. 2008); Cureton v. National

Collegiate Athletic Ass'n., 252 F.3d 267 (3d Cir. 2001), and may deny a request:

[I]f the plaintiff's delay in seeking to amend is undue, motivated by bad

faith, or prejudicial to the opposing party. Adams, 739 F.2d at 864.

Delay becomes “undue,” and thereby creates grounds for the district

court to refuse leave, when it places an unwarranted burden on the court

or when the plaintiff has had previous opportunities to amend. Cureton,

252 F.3d at 273 (citing Adams, 739 F.2d at 868; Lorenz v. CSX Corp.,

1 F.3d 1406, 1414 (3d Cir. 1993)). Thus, our review of the question of

undue delay ... will “focus on the movant's reasons for not amending

sooner,” Cureton, 252 F.3d at 273, and we will balance these reasons

against the burden of delay on the District Court. Coventry v. U.S. Steel

Corp., 856 F.2d 514, 520 (3d Cir. 1988).

Bjorgung v. Whitetail Resort, LP, supra, 550 F.3d at 266.

Furthermore,

“Among the grounds that could justify a denial of leave to amend are

undue delay, bad faith, dilatory motive, prejudice, and futility.” In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)

(“Burlington”); Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir.

1993). “Futility” means that the complaint, as amended, would fail to

state a claim upon which relief could be granted. Burlington, 114 F.3d

at 1434.

Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). Moreover, a party seeking to

supplement pleadings must act in a diligent fashion. Thus, for example, “[a] District

Court has discretion to deny a plaintiff leave to amend where the plaintiff was put

on notice as to the deficiencies in his complaint, but chose not to resolve them.”

Krantz v. Prudential Investments Fund Management LLC, 305 F.3d 140, 144 (3d

Cir. 2002) (citing Rolo v. City Investing Co. Liquidating Trust, 155 F.3d 644, 654

(3d Cir. 1998)).

Because “ ‘[f]utility’ means that the complaint, as amended, would fail to state

a claim upon which relief could be granted” Shane, 213 F.3d at 115, it is necessary

to consider the legal tenants that guide a court when reviewing a motion to dismiss.

B. 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 383, 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 into 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).

Judged by these benchmarks, we will deny the plaintiff’s motion to file an

amended complaint, as allowing the complaint to be amended would be a futile

exercise. In our view, given the limited reading of the state created danger doctrine

endorsed by the court of appeals, the plaintiff has not sufficiently alleged that Wolfe

committed an affirmative act that deprived Ivan Vorobyev of his liberty to trigger

this constitutional claim. Moreover, even if the amended complaint sufficiently

alleged an affirmative act by Wolfe, she is shielded from constitutional tort liability

by the doctrine of qualified immunity. Thus, the plaintiff cannot state a substantive

due process claim for which relief can be granted. Of course, this does not mean that

the plaintiff is entirely without legal recourse here. Quite the contrary, the plaintiff

may still maintain state law tort claims against any allegedly negligent parties.

C. The Plaintiff’s Motion to Amend Will Be Denied.

1. The Well-Pleaded Facts Do Not Satisfy the State-Created

Danger Doctrine.

The plaintiff contends that Wolfe “violated Ivan Vorobyev’s substantive due

process right to bodily integrity, which is secured by the Fourteenth Amendment to

the Constitution of the United States.” (Doc. 36, ¶ 56). 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 Cty, 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, 109

S.Ct. 998, 103 L. Ed. 2d 249 (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, 109 S.Ct. 998). 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. Construed in this narrow fashion the four “essential elements”

of the doctrine are as follows: (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.

As the parties focus their attention only on the fourth element of this claim,

our analysis will similarly focus on the fourth element. Our analysis of the first three

elements remains the same as in our prior decision; notably, that the second element

is not satisfied because “ ‘[m]ere negligence is not enough to shock the conscience’

. . . . [and h]ere we cannot say that the well-pleaded facts disclose deliberate

indifference to Ivan Vorobyev’s medical needs.” Vorobyev, 541 F. Supp. 3d at 535

(quoting Sanford v. Stiles, 456 F.3d 298, 311 (3d Cir. 2006)). Therefore in

accordance with settled case law it remains essential that the plaintiff alleged

something beyond negligence to assert a constitutional state created danger claim.

The fourth and most critical element 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”). “In the substantive due process analysis, it is the State's affirmative

act of restraining the individual's freedom to act on his own behalf—through

incarceration, institutionalization, or other similar restraint of personal liberty—

which is the ‘deprivation of liberty’ triggering the protections of the Due Process

Clause, not its failure to act to protect his liberty interests against harms inflicted by

other means.” DeShaney, 489 U.S. at 200, 109 S.Ct. 998 (emphasis added).

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. Cty. of Bucks, 455 F.3d 418, 432 (3d Cir. 2006). 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. Given these

exacting and well-settled legal benchmarks, we are constrained to deny the

plaintiff’s motion to amend his complaint because the amendment will be futile; the

facts cannot be pled in such a way to amount to an affirmative act by Wolfe that

deprived Ivan of his liberty.

The defendant urges us to deny leave to amend, arguing that the amended

complaint fails for the same reasons as the original complaint since the amended

complaint “does not allege any new facts with respect to Wolfe’s conduct; rather, it

simply reframes the same facts from the opposite perspective.” (Doc. 37, at 6). In

response to this assertion, the plaintiff claims that “[w]hether or not there is

reframing is not the relevant question. The relevant question is whether or not the

facts as alleged satisfy Judge Rendell’s concurrence and are affirmative acts that

satisfy the fourth requirement of the state-created danger theory.” (Doc. 38, at 4).

Judge Rendell did “not view the facts alleged as so clearly lacking such that they fail

to establish prima facie element of an ‘affirmative act.’ ” Vorobyev II, 2022 WL

1499287 at *3 (3d Cir. 2022) (Rendell, J., concurring).2

Judge Rendell in her concurrence distinguished Ye v. United States, 484 F.3d

634 (3d Cir. 2007) from the instant case. We relied on Ye to dismiss the plaintiff’s

2 Elaborating on this assertion, Judge Rendell enumerates the facts in such a manner

she believes would amount to a deprivation of liberty:

Could the District Court on remand conclude that prescribing her

patient the wrong medication, refusing to refer him to a specialist,

declining to keep him for observation until his father arrived, and

sending him to his dormitory where he would not be monitored or cared

for by a medical professional, constituted one or more “affirmative

acts” that made him “more vulnerable to danger” and, thereby, deprived

him of liberty? Ye, 484 F.3d at 638 (citing Bright v. Westmoreland

Cty., 443 F.3d 276 (3d Cir. 2006)). I think so.

Vorobyev II, 2022 WL 1499287, at *4.

original complaint, and the majority agreed that Ye did not support a finding that the

fourth element of the state-created danger doctrine was met. Indeed, in our prior

opinion we stated that: “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.” Vorobyev I, 541 F. Supp. At 534. The majority agreed,

reasoning that “[i]f an affirmative assurance of well-being cannot constitute a

deprivation, then misdiagnosis—the conduct at issue here—cannot either.”

Vorobyev II, 2022 WL 1499278 at *2.

The plaintiff in his amended complaint does not allege additional well-

pleaded facts describing some affirmative actions by the defendant. Instead, the

plaintiff simply mirrors the verbiage used by Judge Rendell in her concurring

opinion in an attempt to satisfy the affirmative act requirement of the state-created

danger doctrine. On this score, the plaintiff alleges that:

Defendant Wolfe acted in a willful disregard of the safety of Ivan

Vorobyev when she: . . .

(l) Prescribed the wrong medication for Ivan Vorobyev;

(m) Declined to keep Ivan Vorobyev in the Student Health Center for

observation until his father arrived;

(n) Declined to refer Ivan Vorobyev to a specialist;

(o) Declined to order that Ivan Vorobyev be taken to an emergency

department;

(p) Misled Ivan Vorobyev about the seriousness of his symptoms;

(q) Relied upon Ivan Vorobyev, an 18 year old who was not a

medical professional to make the decision that a medical

professional should make about whether or not to send the patient

to an emergency department;

(r) Sent Ivan Vorobyev to his dormitory where he would not be

monitored or cared for by a medical professional;

(s) Deprived Ivan Vorobyev of his liberty to go to an emergency

department by misleading him about the seriousness of his symptoms

and by sending him to his dormitory;

(Doc. 36, ¶ 60(l)-(s)).

However, we conclude that this mere change in verbiage in an effort to create

the appearance of an affirmative act is insufficient. We do not find it necessary to

delve into the nuances of a mere assurance versus a misdiagnosis, because even

viewing the factual allegations as a misdiagnosis by Wolfe, we do not find that Ivan

Vorobyev was deprived of his liberty. Wolfe did not take away Ivan Vorobyev’s

ability to exercise his will and make the decision to seek other medical assistance.

It is well established that a “ ‘deprivation of liberty’ is a bedrock requirement

of state liability under the substantive due process clause.” Ye v. United States, 484

F.3d at 641. As the court in Ye found that a mere assurance is not “an affirmative

act—a ‘restraint of personal liberty’ similar to incarceration or institutionalization”

Id. at 635 (citing Deshaney, 489 U.S. at 200), so too we find that the proposed

amended complaint does not allege an affirmative act that restrained Ivan’s personal

liberty similar to incarceration or institutionalization. The Third Circuit in Ye

explained that if it were to hold that the fourth element of the state-created danger

doctrine was satisfied, then the court would “take the state-created danger doctrine

beyond its precedential and constitutional origins.” Id. In a similar manner, we

conclude that the amended complaint to be futile because to find a deprivation of

liberty similar to incarceration or institutionalization derived from the facts alleged

would be stretching a narrow exception—the state-created danger doctrine—beyond

its clearly established, intended bounds.

The plaintiff in a conclusory manner alleges that Wolfe deprived Ivan

Vorobyev of his liberty, stating that “Wolfe acted in willful disregard of the safety

of Ivan Vorobyev when she: . . . (s) Deprived Ivan Vorobyev of his liberty to go to

an emergency department by misleading him about the seriousness of his symptoms

and by sending him to his dormitory.” (Doc. 36, ¶ 60(s)) (emphasis added). The

plaintiff further argues that “[t]he misdiagnosis and inappropriate medicines thus did

more than merely misdiagnosis Ivan: they affirmatively caused his fatal decisions

not to go to an emergency department and to follow Defendant Wolfe’s instructions

by returning to his dormitory.” (Doc. 36, at 17) (emphasis added). In our view, to

hold that the defendant’s inaction caused the plaintiff to make a decision not to seek

emergency care would extend the doctrine beyond the factual scenarios it was

intended capture. See Ye, 484 F.3d at 635.

Viewing the facts alleged in the amended complaint in a light most favorable

to the plaintiff, we find that the plaintiff has not set forth sufficient facts to establish

an “affirmative act—a ‘restraint of personal liberty’ similar to incarceration or

institutionalization.” Id. at 635 (citing Deshaney, 489 U.S. at 200). Accordingly, we

find that the proposed amended complaint the plaintiff fails to establish a substantive

due process claim upon which relief can be granted and therefore granting leave to

amend would be futile.

2. The Defendant is Entitled to Qualified Immunity3

In any event, even if we determined that the plaintiff had stated a colorable

constitutional claim, we believe that the defendant would still be entitled to qualified

immunity from damages as to the federal claim.

The doctrine of qualified immunity protects government officials from

liability for civil damages “insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). “Qualified immunity

balances two important interests—the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Id. Qualified

immunity “provides ample protection to all but the plainly incompetent or those who

knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “Thus, so

long as an official reasonably believes that his conduct complies with the law,

3 We note that in proper cases the court may consider the question of qualified

immunity sua sponte. See Doe v. Delie, 257 F.3d 309, 312 (3d Cir. 2001).

qualified immunity will shield that official from liability.” Sharp v. Johnson, 669

F.3d 144, 159 (3d Cir. 2012) (citing Pearson, 555 U.S. at 244). Although qualified

immunity is generally a question of law that should be considered at the earliest

possible stage of proceedings, a genuine dispute of material fact may preclude

summary judgment on qualified immunity. Giles v. Kearney, 571 F.3d 318, 325-26

(3d Cir. 2009).

Qualified immunity shields officials from liability for civil damages brought

pursuant to section 1983 “so long as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Bland v. City of Newark, 900 F.3d 77, 83 (3d Cir. 2018) (quoting

Mullenix v. Luna, 577 U.S. 7, 11 (2015)). The official seeking qualified immunity

has the burden of establishing their entitlement to the affirmative defense. Halsey v.

Pfeiffer, 750 F.3d 273, 288 (3d Cir. 2014) (citing Reedy v. Evanson, 615 F.3d 197,

223 (3d Cir. 2010)). To determine whether an official is entitled to the affirmative

defense of qualified immunity for a section 1983 claim, a court must determine (1)

whether the official violated a constitutional right and, if so, (2) whether the right

was clearly established. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part

by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in

deciding which of the two Saucier prongs should be addressed first).

A right is clearly established if “every reasonable official would have

understood that what he is doing violates that right.” Mullenix, 577 U.S. at 11. To

be clearly established, there does not have to be a case that is directly on point, “but

existing precedent must have placed the statutory or constitutional question beyond

debate.” Id. (quoting Ashcroft v. Al-Kidd, 563 U.S. 731, 741 (2011)). In determining

whether a right is clearly established, courts must not define the right “at a high level

of generality.” Id. (quoting Al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074.) Rather, the

analysis should focus on “whether the violative nature of particular conduct is clearly

established.” Id. (quoting Al-Kidd, 563 U.S. at 742). On this score, “[t]he relevant,

dispositive inquiry in determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in the situation

he confronted.” Saucier, 533 U.S. at 202. It is the plaintiff who bears the initial

burden of demonstrating that the constitutional right at issue was clearly established

at the time of the claimed violation. See Davis v. Scherer, 468 U.S. 183, 197 (1984)

(“A plaintiff who seeks damages for violation of constitutional or statutory rights

may overcome the defendant official's qualified immunity only by showing that

those rights were clearly established at the time of the conduct at issue.”); Sherwood

v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997) (“Where a defendant asserts a

qualified immunity defense in a motion for summary judgment, the plaintiff bears

the initial burden of showing that the defendant's conduct violated some clearly

established statutory or constitutional right.”).

To determine whether a right is clearly established, the court may look to cases

from the Supreme Court, controlling circuit precedent, or “a robust consensus of

cases of persuasive authority” from other circuit courts. Porter v. Pa. Dep't of Corrs.,

974 F.3d 431, 449 (3d Cir. 2020) (quoting Barna v. Bd. of Sch. Dirs. of Panther

Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017)). Unpublished cases cannot

establish a right because they do not constitute binding authority. El v. City of

Pittsburgh, 975 F.3d 327, 340 (3d Cir. 2020). In rare cases, the unlawfulness of a

government official's conduct may be established from the obviously unlawful

nature of the defendant's conduct “even though existing precedent does not address

similar circumstances.” Wesby, 138 S. Ct. at 590 (citing Brosseau v. Haugen, 543

U.S. 194, 199 (2004)).

In the instant case, based on our analysis of the plaintiff’s Due Process claim,

we conclude that Wolfe would be entitled to qualified immunity because the law

was not clearly established at the time of Wolfe's alleged misdiagnosis of Ivan

Vorobyev’s symptoms. See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150

L. Ed. 2d 272 (2001). The Third Circuit case most similar to the factual scenario

before us is Ye v. United States, 484 F.3d 634 (3d Cir. 2007). As evidenced by Judge

Rendell highlighting the nuanced difference between a mere assurance and a

misdiagnosis, we conclude that the caselaw would not have made it sufficiently clear

that Wolfe’s conduct, even if viewed as an affirmative act, would violate another

person’s constitutional rights by depriving that person of their liberty. Indeed, the

uncertainty of the law in this area is underscored by the prior court of appeals

decision in this case. While Judge Rendell’s concurrence describes a subtly nuanced

way in which the circuit’s prior published decision in Ye could be distinguished, the

panel majority held that “[i]f an affirmative assurance of well-being cannot

constitute a deprivation, then misdiagnosis—the conduct at issue here—cannot

either,” and concluded that “the complaint did not allege a valid state-created danger

claim.” Vorobyev, 2022 WL 1499278, at *2 and *3. Given that this nuanced view

of the state created doctrine could not command a majority of the original panel in

this case, it simply cannot be said that the law was so clear that Nurse Wolfe would

have known that her alleged errors transgressed the plaintiff’s clearly established

constitutional rights. Accordingly, we find that even if the plaintiff had sufficiently

alleged a state-created danger claim, defendant Wolfe is entitled to qualified

immunity.

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

note that the disposition of the plaintiff's federal legal claim, 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 an alleged federal claim

that is 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, 86 S.Ct. 1130, 16 L.Ed.2d 218 (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, 86 S.Ct. 1130 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, 86 S.Ct. 1130 (footnotes omitted).

After engaging in a futility analysis regarding whether the plaintiff should be

granted leave to amend his complaint, we have found that the plaintiff's federal claim

is subject to dismissal. 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 the only potential federal claim brought before us failed as

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

without prejudice.

IV. Conclusion

For the foregoing reasons, we conclude that the plaintiff’s motion to amend

(Doc. 35) will be DENIED, and the plaintiff’s complaint will be dismissed.

An appropriate order follows.

s/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge