WILSON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHEDIRA D. WILSON, as administratrix : CIVIL ACTION

of the estate of Armada Edna Wilson, :

deceased :

:

v. : NO. 26-551

:

CITY OF PHILADELPHIA, EMILY :

KLENK, DYLAN TROST :

MEMORANDUM

MURPHY, J. August 10, 2026

There is no constitutional right to emergency services, nor any constitutional obligation

to affirmatively protect people from private harms. But the state may be on the hook when it

creates the danger in the first place. Shedira Wilson alleges that the government created a danger

to her mother, Armada Wilson, when the two EMTs who responded to her medical emergency

delayed and denied her treatment. Following Armada Wilson’s death, her daughter brought civil

rights claims against the two responding EMTs under 42 U.S.C. § 1983. Now, the EMTs move

to dismiss Ms. Wilson’s suit for failure to state a claim. To survive this motion, Ms. Wilson must

satisfy the onerous four-part test of the state-danger doctrine. In part, Ms. Wilson must show that

an affirmative act by the EMTs placed her mother in a worse position than if the state had never

intervened at all. But on close inspection and comparison to Third Circuit precedent, Ms.

Wilson’s allegations do not demonstrate that the outcome for Armada Wilson would have been

any different had the EMTs never shown up. Therefore, we grant defendants’ motion to dismiss

without prejudice.

I. FACTUAL ALLEGATIONS

According to the allegations, which we must accept as true for these purposes, decedent

Armada Wilson began to struggle with her breathing the morning of February 13, 2024. DI 1 at

¶¶ 1-4. 1 She asked her granddaughter, Nahijah Wilson, to call 911 for her. Id. at ¶ 30. At

approximately 11:00 a.m., Nahijah Wilson placed her first 911 call. Id. at ¶ 31. Five minutes

later, when no one arrived, she placed a second 911 call. Id. at ¶ 32. She placed her third and

final call five minutes later. Id.

At approximately 11:20 a.m., twenty minutes after the first 911 call, two emergency

medical technicians (EMTs) arrived. Id. at ¶ 34. But instead of driving up to the Wilsons’ home

on S. Hemberger Street, the two EMTs, defendants Emily Klenk and Dylan Trost, parked at the

end of the block around the corner on Snyder Avenue. Id. Nahijah Wilson witnessed the two

EMTs walking slowly down the block, “showing no signs of urgency,” with no equipment other

than a small transport chair. Id. at ¶¶ 34, 45. At the time the EMTs entered the Wilsons’ home,

Armada Wilson remained “awake, alert, and able to engage in conversation.” Id. at ¶ 37.

However, Ms. Klenk declined to ask questions about her condition or assess her vital signs. Id.

at ¶ 38. Instead, she inquired about Armada Wilson’s oxygen tank and the length of her oxygen

cord. Id.

Ms. Klenk and Nahijah Wilson argued. Id. at ¶¶ 40-42. Nahijah Wilson repeatedly asked

why the EMTs were not providing adequate care, and Ms. Klenk became angry and

argumentative. Id. At this point, Armada Wilson stated she believed she was going to die if the

EMTs did not get her appropriate medical care and pled with them to do so. Id. at ¶ 43. Then, at

1 We adopt the sequential pagination supplied by the CM/ECF docketing system.

Citations to the docket begin with “DI,” followed by a page number and/or a numbered

paragraph.

least ten minutes after arriving, Ms. Klenk and Mr. Trost began the process of transporting

Armada Wilson to the ambulance. Id. at ¶ 45. They spent several minutes strapping her to the

small chair they had brought, during which Ms. Wilson bled from her mouth, lost control of her

urinary functions, and became unresponsive. Id. at ¶¶ 48-49. A nearby camera showed the

EMTs moving her to the ambulance while she was strapped loosely into the chair with her leg

visibly unsecured. Id. at ¶ 52.

Armada Wilson’s daughter, Plaintiff Shedira Wilson, was not on the scene, but she placed

her own 911 call at approximately 11:36 a.m. after receiving troubling updates from Nahijah

Wilson. Id. at ¶¶ 55-56. By the time Shedira Wilson arrived at the scene at 11:45, the additional

police and fire assistance she requested had already arrived. Id. at ¶ 57. Before first responders

transported her mother to the hospital, Shedira Wilson saw two firemen provide CPR to her

mother in the back of the ambulance. Id. at ¶ 59. At approximately 12:02 p.m., the ambulance

left the scene and transported Armada Wilson to Jefferson Hospital, where medical staff

informed Shedira Wilson that her mother was intubated, developed a collapsed lung and

pneumothorax, and was in a coma. Id. at ¶¶ 60-61.

Ultimately, the Wilson family made the decision to stop lifesaving measures, and Armada

Wilson was pronounced dead several days later on February 19, 2024. Id. at ¶ 62. Medical

professionals determined that the cause of death was lack of oxygen to the brain, “caused only by

the delay in Ms. Wilson receiving appropriate medical care.” Id. at ¶ 63. Following the incident,

Ms. Klenk and Mr. Trost authored an “incomplete, inaccurate, and intentionally deceptive” run

report and filed a false police report accusing Nahijah Wilson of assault. Id. at ¶ 121(q-r).

II. MOTION AT ISSUE

a. Procedural History and Standard of Review

On January 28, 2026, Shedira Wilson filed suit against Ms. Klenk, Mr. Trost, the City of

Philadelphia Regional Office of Emergency Medical Services, the Philadelphia Fire

Department — EMS, and the City of Philadelphia. Id. at ¶¶ 8-22. She pled four claims: Count I,

“Wrongful Death/Survival Act State Law Claims”; Count II, “Civil Rights — 42 U.S.C. 4 1983”;

Count III, “Civil Rights”; and Count IV, “State Law Medical Negligence.” Id. at 16, 18, 25, 29.

The City filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6)

on March 20, 2026. DI 12. We held oral argument on the defendants’ motion on June 4, 2026.

DI 22.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient

factual allegations, accepted as true, to state a plausible claim for relief. Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible

on its face when the plaintiff pleads facts allowing the court to reasonably infer that the

defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at 678. Plausibility requires that

the plaintiff show “more than a sheer possibility that the defendant has acted unlawfully.” Id.

Mere legal conclusions or threadbare recitals of the elements of a cause of action will not suffice.

Twombly, 550 U.S. at 555.

b. Narrowing of Issues and Parties

After the defendants filed their motion to dismiss, Ms. Wilson narrowed her claims and

eliminated defendants. First, the parties stipulated to dismiss Count IV (see DI 14), and Ms.

Wilson acknowledged at oral argument that Count I related only to damages and would rise or

fall on the sufficiency of the civil rights claims in Counts II and III. DI 22 at 3. Second, and

further to Counts II and III, we do not see a difference between them — nor did Ms. Wilson

clarify the difference — so we will treat them as a single cause of action under 42 U.S.C. § 1983.

Specifically, Counts II and III assert a state-created danger claim under the Fourteenth

Amendment.2 Third, and as to the defendants, the parties stipulated to dismiss the Philadelphia

Fire Department — EMS and the City of Philadelphia Regional Office of Emergency Medical

Services without prejudice. DI 14.

We also dismiss the City of Philadelphia. As defendants correctly explain in their motion

to dismiss, the City can be held liable only through a Monell claim, not under a theory of

vicarious liability. See Connick v. Thompson, 563 U.S. 51, 60 (2011) (“Under § 1983, local

governments are responsible only for their own illegal acts. They are not vicariously liable under

§ 1983 for their employees’ actions.”) (citation modified).

Ms. Wilson acknowledged at oral argument that she is not pursuing a Monell claim. DI

22 at 5. However, even if she were attempting to, her complaint does not succeed. A Monell

claim can proceed in two ways: a plaintiff may allege (1) “that an unconstitutional policy or

custom of the municipality led to his or her injuries” or (2) “that [the injuries] were caused by a

failure or inadequacy by the municipality that reflects a deliberate or conscious choice.” Forrest

v. Parry, 930 F.3d 93, 105 (3d Cir. 2019) (citation modified).

Here, Ms. Wilson alleges the defendants failed “to properly hire, train, supervise, and/or

monitor their EMTs and medical providers” and failed “to have proper policies and procedures

regarding hiring, training, supervising, and/or monitoring emergency medical technicians and

medical providers on the appropriate emergency response to individuals exhibiting serious

2 Ms. Wilson originally included additional claims under the Eighth Amendment and the

Pennsylvania Constitution as part of Counts II and III, but she acknowledged at oral argument

that she is no longer pursuing liability under these theories. DI 22 at 3, 6; see also DI 14.

medical conditions such as Armada Wilson,” thus “depriving [Armada Wilson] of her

constitutional right.” DI 1 at ¶ 111. However, Ms. Wilson’s allegations merely state the basic

elements of a Monell cause of action, which is insufficient. See Wood v. Williams, 568 F. App’x

100, 104 (3d Cir. 2014) (“Simply paraphrasing § 1983 does not meet Rule 8’s pleading

requirements because it fails to satisfy the rigorous standards of culpability and causation

required to state a claim for municipal liability.”) (citation modified). For example, she does not

assert facts supporting the existence of an unconstitutional municipal policy or suggest how such

an unconstitutional policy caused the deprivation of her rights. Nor does she allege facts in the

alternative sufficient to show that the City’s alleged inadequate training amounted to deliberate

indifference. Nor does Ms. Wilson explain how the alleged incident is part of a city-wide

pattern. See Connick, 563 U.S. at 62 (“A pattern of similar constitutional violations by untrained

employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure

to train.”) (citation modified). While applying Rule 12(b)(6) to a Monell claim is far from an

exact science, compared to other complaints we have allowed through to discovery, Ms. Wilson’s

allegations are threadbare. See, e.g., Hicks v. City of Philadelphia, No. CV 22-977, 2023 WL

5278713, at *10 (E.D. Pa. Aug. 16, 2023) (finding Mr. Hicks’s Monell claim could proceed into

discovery after he cited, among other facts, newspaper articles, consent decrees, and monitoring

reports detailing instances of police misconduct similar to those he alleged in his complaint).

Thus, we dismiss the City of Philadelphia and evaluate Ms. Wilson’s § 1983 claim only against

Ms. Klenk and Mr. Trost.

III. ANALYSIS

“The threshold issue in any Section 1983 lawsuit is whether the plaintiff has sufficiently

alleged a deprivation of a constitutional right.” Rivas v. City of Passaic, 365 F.3d 181, 193-94

(3d Cir. 2004). “Because Section 1983 does not create any substantive rights, the plaintiff must

be able to point to an independent constitutional or statutory right.” Id. Here, Ms. Wilson

alleges that the defendants violated her due process rights guaranteed under the Fourteenth

Amendment.

There is no Fourteenth Amendment due process right to emergency medical or rescue

services. DeShaney v. Winnebago Dep’t of Social Services, 489 U.S. 189, 196 (1989). DeShaney

concerned the government’s failure to remove a four-year-old boy from his abusive father’s

custody. Id. at 193. The Court explained that “the Due Process Clauses generally confer no

affirmative right to governmental aid, even where such aid may be necessary to secure life,

liberty, or property interests of which the government itself may not deprive the individual.” Id.

at 196. And following DeShaney, courts have repeatedly reaffirmed that “[s]tates are not

constitutionally obligated to provide rescue services, nor are they constitutionally required to

provide competent rescue services voluntarily undertaken.” Brown v. Commonwealth of

Pennsylvania Dep’t Health Emergency Med. Servs. Training Inst., 318 F.3d 473, 483 (3d Cir.

2003).

The Third Circuit acknowledges two exceptions to this broad principle. Morse v. Lower

Merion School Dist., 132 F.3d 902, 907 (3d Cir. 1997). The first — the “special relationship”

exception — allows plaintiffs to recover where the state enters into a special relationship with a

particular citizen, such as through incarceration or institutionalization, and “fails, under

sufficiently culpable circumstances, to protect the health and safety of the citizen to whom it

owes an affirmative duty.” Id. (citation modified); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir.

1996) (“The [DeShaney] Court found that the special relationship which would impose

affirmative duties of care and protection on the state existed only in certain limited

circumstances, such as when the state takes a person into its custody and holds him there against

his will.”). The second exception, the state-created danger doctrine, allows plaintiffs to recover

if the state creates a danger to a particular citizen that did not previously exist, or if the state did

something to render that citizen more vulnerable to an existing danger than he/she would have

been had the state never intervened. Cappel v. Aston Twp. Fire Dep’t, 693 F. Supp. 3d 467, 474

(E.D. Pa. 2023). Ms. Wilson relies on the second exception, the state-created danger doctrine, to

argue that the EMTs violated her mother’s rights under the Fourteenth Amendment. DI 1 at

¶¶ 89, 93.

The Third Circuit adopted the state-created danger doctrine as a viable mechanism for

establishing a constitutional violation under § 1983 in Kneipp v. Tedder. Kneipp, 95 F.3d at

1201. And the Circuit later clarified the four-part test it endorsed in Kneipp. Rivas, 365 F.3d at

202 (Ambro, J., concurring) (outlining “substantial modifications” made to the state-created

danger test since Kneipp). Here, Ms. Wilson must satisfy the following four elements:

(1) the harm ultimately caused was foreseeable and direct;

(2) a state actor acted with a degree of culpability that shocks the conscience;

(3) a relationship between the state and the plaintiff existed 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, as

opposed to a member of the public in general; and

(4) a state actor affirmatively used his or her authority in a way that created a danger

to the citizen or that rendered the citizen more vulnerable to danger than had the

state not acted at all.

Bright v. Westmoreland County, 443 F.3d 276, 281 (2006) (citation modified). The first and third

elements are not contested here. Thus, to survive the City’s motion to dismiss, Ms. Wilson must

plead facts tending to show that Defendants Klenk and Trost (1) acted with a degree of

culpability that shocks the conscience and (2) that they affirmatively used their authority in such

a way that they rendered Armada Wilson more vulnerable to danger than had they never

intervened at all.

We conclude that Ms. Wilson has pled conduct that could reasonably be viewed as

conscience-shocking. However, she has not plausibly alleged an affirmative act that placed her

mother in more danger than if no EMTs ever showed up at all. Because the complaint does not

adequately allege the fourth element of the test for state-create danger, we grant the motion to

dismiss without prejudice.

a. Ms. Wilson plausibly alleges the second element of the state-created danger

test, conscience-shocking conduct.

The second element of the state-created danger test requires that the government official’s

action be “so ill-conceived or malicious” that it “shocks the conscience.” Brown, 318 F.3d at 480

(citation modified). The first four-part state-created danger test articulated in Kneipp required

only that the government actor act with “willful disregard” for, or “deliberate indifference”

toward, the plaintiff’s safety. Mark v. Borough of Hatboro, 51 F.3d 1137, 1152 (1995). But the

Supreme Court recognized that “[d]eliberate indifference that shocks in one environment may

not be so patently egregious in another,” and so the inquiry into whether conduct shocks the

conscience “demands an exact analysis of circumstances before any abuse of power is

condemned as conscience shocking.” Cnty. of Sacramento v. Lewis, 532 U.S. 833, 850 (1998).

Courts evaluate conscience-shocking conduct under one of three standards, “depend[ing]

upon the circumstances of a particular case.” Cappel, 693 F. Supp. 3d at 481 (quoting Estate of

Smith v. Marasco, 430 F.3d 140, 153 (3d Cir. 2005)). “In hyperpressurized environments

requiring a snap judgment,” the plaintiff must show intentional harm by the state official. Kedra

v. Schroeter, 876 F.3d 424, 437 (3d Cir. 2017) (citation modified). Where the state official must

act “in a matter of hours or minutes,” the plaintiff must show that the state actor “disregard[ed] a

great risk of serious harm.” Id. (citation modified). And where the state official “has time to

make an unhurried judgment,” a plaintiff need only demonstrate that the state official acted with

“deliberate indifference.” Id. (citation modified).

The Third Circuit held in Brown v. Commonwealth of Pennsylvania Department of

Health Emergency Medical Services Training Institute that the second standard applies to

emergency medical personnel, who “have little time for reflection, typically making decisions in

haste and under pressure.” 318 F.3d at 480; see also Rivas, 365 F.3d at 196. Likewise, we held

in Cappel v. Aston Township Fire Department that a 911 call stating that a patient is struggling to

breathe “evinces a level of medical immediacy” that precludes the EMTs from making an

“unhurried judgment” — but also that such a call does not create the “highly pressurized”

circumstances that require a plaintiff to show intentional harm. Id. at 482. Thus, Ms. Wilson’s

allegations must plausibly demonstrate that the EMTs disregarded a great risk of serious harm to

Armada Wilson. We conclude that they do.

Ms. Wilson relies on Rivas v. City of Passaic in asserting that the EMTs’ failure of action

was so outrageous that it shocks the contemporary conscience. DI 16-1 at 11. There, two EMTs

responded to a call from Mr. Rivas’s child reporting that Mr. Rivas had suffered a seizure. Rivas,

365 F.3d at 185. The EMTs claimed that Mr. Rivas then attacked them, but other evidence in the

record suggested that Mr. Rivas simply walked towards the EMTs with his arms extended in

front of him, causing the EMTs to panic. Id. at 196. Either way, the EMTs called for police

backup, and when the police arrived, they restrained Mr. Rivas, and Mr. Rivas died a short time

later. Id. at 184, 196. At summary judgment, the Third Circuit concluded that a reasonable jury

could find that the EMTs “abdicate[d] their duty to render medical assistance” and consciously

disregarded a great risk of serious harm to Mr. Rivas by falsely accusing him to the police of

acting violently and then abandoning him to law enforcement — particularly since EMTs are

supposed to render aid to those in need of medical assistance. Id. at 196.

Conversely, Defendants rely on Brown, arguing that the EMTs’ short delay arriving to the

home and moving Armada Wilson to the ambulance, plus their failure to bring adequate

equipment, amounts to “only run-of-the-mill medical negligence, if even that, that cannot rise to

the necessary level of culpability.” DI 12 at 8. Brown involved two EMTs who responded to a

report of an infant choking on a grape. Brown, 318 F.3d at 475. The EMTs got lost on the way

to the scene, delaying their arrival, and then made no attempt to dislodge the grape from the

child’s throat en route to the hospital. Id. at 481. The child died two days later. Id. at 476. The

Third Circuit held that the parents’ state-created danger claim failed because the EMTs’ behavior

did not shock the conscience, reasoning that the EMTs did not purposefully delay their rescue

efforts or act “in an otherwise outrageous manner.” Id. at 481. The Court concluded that “the

record depicts EMTs who attempted to arrive at the scene of the incident as rapidly as they

could.” Id. Though the EMTs “ultimately failed” to save the infant, the court opined, “they had

no constitutional obligation to do so.” Id.

The determinative question here is whether the factual allegations more closely resemble

Brown or Rivas. While the City’s argument is well taken, we think several of the facts Ms.

Wilson alleges suggest that defendants Ms. Klenk and Mr. Trost “abdicated their duty to render

medical assistance,” tipping the scale away from Brown and toward Rivas. Rivas, 365 F.3d at

196. According to the complaint, the EMTs walked slowly toward the home with no equipment

other than a small chair, “showing no signs of urgency,” even though they knew that Ms. Wilson

was struggling to breathe. DI 1 at ¶ 34. Rather than evaluate Ms. Wilson, take vitals, or

administer care, Ms. Klenk questioned her about her oxygen tank and cord. Id. at ¶ 38. The

EMTs did not assess Armada Wilson’s vital signs until she pleaded with them to do so, stating

that she believed she was going to die. Id. at ¶¶ 43-45. Instead, Ms. Klenk engaged Nahijah

Wilson in an argument contentious enough that she filed a false police report accusing Nahijah

Wilson of assault. Id. at ¶¶ 41, 121(q)-(r). When the EMTs finally began moving Ms. Wilson to

the ambulance, they barely strapped her into the small chair, leaving her leg hanging off the side.

Id. at ¶ 52. Thus, the record here does not depict a “failed rescue” despite a “concerted effort” by

the defendants to reach the scene “as rapidly as they could.” See Brown, 318 F.3d at 481.

Several of the allegations — the EMTs’ approaching the patient’s home with no urgency,

engaging the patient’s granddaughter in an altercation, filing a false police report following the

altercation, and transporting the patient without properly securing her leg — suggest the EMTs

“purposely delay[ed] their rescue efforts” and “act[ed] in an otherwise outrageous manner.” Id.

For that reason, we conclude Ms. Wilson has plausibly alleged that the EMTs disregarded a great

risk of serious harm to Ms. Wilson, satisfying the conscience-shocking conduct requirement of

the state-created danger test.

b. Ms. Wilson does not plausibly allege the fourth element of the state-created

danger test, affirmatively creating the danger or making it worse.

The fourth element of the state-created danger test itself contains three prongs; it requires

that Ms. Wilson show (1) that “a state actor exercised his or her authority,” (2) that “the state

actor took an affirmative action,” and (3) that “this act created a danger to the citizen or rendered

the citizen more vulnerable to danger than if the state had not acted at all. Ye v. U.S., 484 F.3d

634, 639 (3d Cir. 2007). Defendants focus their challenge on prongs two and three. DI 12 at 8-

9. We agree that the factual allegations here are insufficient to satisfy these prongs. Therefore,

Ms. Wilson’s complaint does not state a claim under the state-created danger doctrine.

i. Ms. Wilson does not plausibly allege that the EMTs took relevant

affirmative acts.

The Third Circuit is clear that “an alleged failure to do something, standing alone, cannot

be the basis for a state-created danger claim.” Johnson v. City of Philadelphia, 975 F.3d 394,

401 (3d Cir. 2020). Thus, it rejects “attempts to redefine clearly passive inaction as affirmative

acts.” Morrow v. Balaski, 719 F.3d 160, 178 (3d Cir. 2013). But the Circuit recognizes the

‘‘inherent difficulty in drawing a line between an affirmative act and a failure to act,’’ so the

“dispositive factor” as to whether an affirmative act occurred is “whether the state has in some

way placed the plaintiff in a dangerous position that was foreseeable.” L.R. v. Sch. Dist. of

Philadelphia, 836 F.3d 235, 242 (3d Cir. 2016); Morse, 132 F.3d at 915.

The Third Circuit refers to an Eleventh Circuit case, Mitchell v. Duval County School

Board, as illustrative of this principle. In Mitchell, the victim, a fourteen-year-old student, was

waiting on a ride home from a school function. Mitchell v. Duval Cnty. Sch. Bd., 107 F.3d 837,

838 (11th Cir. 1997). He tried to call his father from the school administration office, but school

officials did not let him, so he called from an outdoor payphone. Id. While waiting for his father

to arrive on a driveway outside the school, “non-student, third party assailants” shot and killed

the student. Id. Because the school officials did not mandate that the victim wait exactly where

he did — he could have chosen somewhere else inside the school, in the courtyard, or another

place nearby — the Eleventh Circuit held that the plaintiff did not demonstrate “that the state

affirmatively placed [the] decedent in a position of danger.” Id. at 839.

The affirmative act analysis has evolved over time. Cappel, 693 F. Supp. 3d at 484. As

“often times there is no clear line to draw” between action and omission, courts have “slightly

reframed” the question, “where helpful,” to evaluate the state actor’s effect on the “status quo” of

the scene. L.R., 836 F.3d at 242; Cappel, 693 F. Supp. 3d at 484. Courts taking this approach

first establish the “setting or ‘status quo’ of the environment before the alleged act or omission,”

and then they ask “whether the state actor’s exercise of authority resulted in a departure from that

status quo.” Cappel, 693 F. Supp. 3d at 484 (citing L.R., 836 F.3d at 243). Ultimately, “the

purpose of pinpointing an affirmative act is to distinguish where officials might have done more

from cases where officials created the risk itself.” Id. (citation modified).

Furthermore, following Ye, the Third Circuit imposes an additional requirement for an act

to be affirmative for purposes of the state-created danger doctrine: the act “must amount to a

restraint of personal liberty that is similar to incarceration.”3 Mears v. Connolly, 24 F.4th 880,

884 (3d Cir. 2022) (citation modified). For example, in Mears, a mother was visiting her son at

the psychiatric hospital where he was an inpatient. Id. at 882. A nurse, knowing that the son had

attacked another patient and was growing “progressively more psychotic,” was supervising the

mother’s visit as required by the hospital. Id. at 884. However, the supervising nurse exited the

room, leaving the mother locked in the room alone with her son. Id. at 885. The son attacked

her, and she sustained severe, permanent injuries. Id. at 883. The Third Circuit held that,

because the mother had relied on the expectation that the visit would be supervised — and

because she was “not permitted” to leave the visiting room once inside — she was “robbed of the

3 It is not perfectly clear whether the restraint of personal liberty requirement fits under

prong two or three of the fourth element analysis. In Ye, the Third Circuit evaluated whether

there was a restraint of personal liberty under the second prong, holding that an act is not

affirmative for purposes of the state created danger doctrine unless it deprives an individual of

the ability to act on his/her own behalf. Ye, 484 F.3d at 640-41. Here, we follow the Third

Circuit’s structure from Ye. However, the Third Circuit has seemingly structured its analysis

differently in other cases. See Mears, 24 F.4th at 885. In Mears, it evaluated prongs two and

three at the same time and in conjunction with the deprivation of liberty requirement. Id. The

point at which we address the deprivation of liberty requirement does not alter the outcome of

the case. The key point is that Ms. Wilson does not meet this “bedrock requirement” of the state-

created danger doctrine, as we explain below. Ye, 484 F.3d at 641.

chance to decide whether to have an unsupervised visit or take extra precautions. And that is a

plausible deprivation of liberty.” Id. at 885.

In contrast, the Third Circuit pointed to an Eleventh Circuit case, Wyke v. Polk County

School Board, to illustrate circumstances insufficient to establish a deprivation of liberty. Ye,

484 F.3d at 642 (citing Wyke v. Polk Cnty. Sch. Bd., 129 F.3d 560 (11th Cir. 1997)). Wyke

addressed a student who attempted suicide twice on school property but was saved by a peer.

Wyke, 129 F.3d at 563. When the peer’s concerned mother called the school to report the

incidents, the dean of students assured her that “he would take care of it,” so she did not call the

suicidal student’s mother directly. Id. at 564. But the dean “did no more than read some Bible

verses to Wyke, who committed suicide shortly thereafter.” Ye, 484 F.3d at 642. The peer’s

mother testified that she would have called the decedent’s mother directly had the dean not

falsely assured her that “the problem would be dealt with.” Id. Nonetheless, the Third Circuit

held that the dean “did not, either by verbal or physical act, restrain [her] from picking up her

telephone,” so there was no deprivation of liberty triggering Fourteenth Amendment protection.

Id. (citation modified).

With that background, Ms. Wilson argues the following actions and inactions violated her

mother’s Fourteenth Amendment rights:

(a) failing to promptly arrive to the home of decedent Armada Wilson;

(b) failing to take the proper route and/or be familiar with the location of the home so as

to ensure the ambulance would be as close to the home as possible;

(c) failing to bring the ambulance to a location closest to the home;

(d) failing to recognize, communicate or understand the urgency of the situation prior to

arrival at the home and to be prepared as a result;

(e) failing to acknowledge, understand or recognize the prior health issues of decedent

Armada Wilson as provided to emergency services, and to take same into account

when entering the home and assessing the situation, which Defendants utterly failed

to attempt to assess at all;

(f) failing to have appropriate equipment with them either in the ambulance or brought

with them into the home, included but not limited to diagnostic equipment such as

pulse oximetry, blood pressure cuff, cardiac monitor, oxygen or glucometer;

(g) failing to make the immediate decision to urgently move her to the ambulance for

prompt transport to a medical facility;

(h) If the decision was made that prompt transport was not needed, failing to provide

timely and adequate medical care and treatment who was exhibiting signs of

respiratory distress;

(i) failing to take timely action to properly assess decedent Armada Wilson's health and

medical condition in order to treat same and prevent her condition from deteriorating;

(j) failing to act with urgency and promptness in light of the condition of decedent

Armada Wilson immediately upon entering the home and thereafter;

(k) failing to take steps to evaluate or assess Ms. Wilson, formulate impressions, and/or

provide treatment to decedent Armada Wilson upon entering the home and thereafter;

(l) failing to take steps to appropriately communicate with decedent's granddaughter,

Nahijah Wilson, including deescalation of the situation, while instead inappropriately

and unprofessionally confronting Nahijah Wilson in a combative, rude and dismissive

matter while ignoring the health and safety of decedent Armana Wilson;

(m) failing to recognize upon entering the home that proper equipment and additional

personnel was needed for the timely and safe transport of decedent Armada Wilson

from the home, and thereafter failing to request assistance from any other EMTs, first

responders, or city agency for same;

(n) failing to recognize upon entering the home that the situation required additional

medical equipment and supplies not brought to the home, and failing to take steps to

timely procure the needed medical equipment and supplies from the ambulance into

the home;

(o) failing to have the appropriate equipment other than a stair chair available for use to

transport decedent from her home into the ambulance;

(p) failing to recognize decedent's condition was deteriorating, and failing to provide

necessary medical care and treatment which caused/permitted decedent to become

unresponsive, suffer from cardiac arrest, and code at or around the time when

transport from the home to the ambulance was finally initiated;

(q) authoring a report of the emergency response that was incomplete, inaccurate, and

intentionally deceptive in order to protect the Defendant; the run report contradicts

the timeline of events, including but not limited to blood pressure readings that are

inconsistent with the timing of cardiac arrest, and claiming that the Defendants

rendered CPR to Ms. Wilson when video evidence and direct witness observations

will demonstrate otherwise;

(r) filing a false police report against decedent Armada Wilson's granddaughter, Nahijah

Wilson, asserting assault against Defendant Klenk when no such assault took place;

said report only being filed by Klenk in retaliation for being repeatedly questioned

about the total lack of urgency in providing care.

DI 1 at ¶ 104. Of the 18 allegations listed, 15 are failures of action. The EMTs’ alleged failures

to park close to the home, to bring appropriate equipment, to walk with urgency, to recognize

that Ms. Wilson’s condition was deteriorating, to take vitals, and so on did not cause or

exacerbate Ms. Wilson’s illness — rather, they describe instances where Ms. Klenk and Mr. Trost

“might have done more.” Morrow, 719 F.3d at 186 (Ambro, J., concurring). And “an alleged

failure to do something, standing alone” is not sufficient to make out an affirmative act. Johnson,

975 F.3d at 401.

Ms. Wilson comes closer to alleging an affirmative act with the remaining three

allegations. The first and second remaining acts — filing an inaccurate run report and a false

police report against Nahijah Wilson — are not mere failures of action. “Had [Defendants Klenk

and Trost] merely failed to do something, they would not have written the report[s] at all.”

Cappel, 693 F. Supp. 3d at 485 (determining that filing a deceptive run report is an affirmative

act). However, these two acts did not deprive Armada Wilson of her liberty. The complaint does

not suggest that the inaccurate run report or false police report constrained Armada Wilson or her

family members from acting on her behalf at any point. The reports did not prevent Ms. Wilson

from refusing the EMTs’ care or from picking up her telephone to call for help. Therefore, they

do not qualify as affirmative acts within the meaning of Ye and do not satisfy the second prong of

the fourth state-created danger requirement.

The final remaining allegation (o) — moving Armada Wilson in the small transport

chair — is also not a mere failure of action. DI 1 at ¶¶ 49, 104(o). Placing Armada Wilson in the

chair, strapping her in, and carrying her to the ambulance is “not a failure to do anything; it is

undoubtedly an act.” Cappel, 693 F. Supp. 3d at 484 (explaining that waving off an advanced

life support unit is an affirmative act). And it changed the status quo at the scene — at first,

Armada Wilson was in her home, and then she was in the ambulance. Id. (holding that a change

in the status quo occurred where an advanced life support unit sat outside the patient’s home for

3½ minutes, and then the unit left the home after the EMTs waved them off). Given her fragile

condition, transporting Armada Wilson unsecured in a small chair across multiple city blocks

undeniably placed her in a “dangerous position that was foreseeable.” Morse, 132 F.3d at 915.

However, moving Armada Wilson in the chair was not a plausible deprivation of liberty

and thus does not trigger Fourteenth Amendment protection. DeShaney, 489 U.S. at 200. By

moving Armada Wilson to the ambulance, the EMTs did not physically or verbally prevent any

member of the Wilson family from seeking alternative treatment. Defendants Ms. Klenk and

Mr. Trost did not forcibly restrain Ms. Wilson in the chair, nor did they separate her from any

“private source of protection.” Cappel, 693 F. Supp. 3d at 487 (citing Kneipp, 95 F.3d at 1210).

And the EMTs did not restrain Shedira Wilson from taking some other course of action, such as

picking up her telephone to request alternative assistance. Indeed, Shedira Wilson succeeded in

securing alternative care: fire and police personnel responded to the scene and performed CPR

on Armada Wilson in the back of the ambulance. DI 1 at ¶¶ 58-59. To hold that Ms. Wilson

satisfies the affirmative act requirement without her showing that the state restrained her liberty

would contravene the Supreme Court’s holding in DeShaney that the government’s affirmative

duty to protect under the Fourteenth Amendment arises from “the limitations which it has

imposed on his freedom to act on his own behalf.” DeShaney, 489 U.S. at 190; see Ye, 484 F.3d

at 642 (holding that “merely alleging state actions which render the individual more vulnerable

to harm” absent a deprivation of liberty by the government “cannot be used as an end run around

DeShaney's core holding”). Therefore, we conclude that Ms. Wilson has not alleged an

affirmative act as defined by the state-created danger doctrine.

ii. The EMTs’ did not render Armada Wilson more vulnerable to

danger than had the EMTs never arrived.

Finally, even if Ms. Wilson had alleged affirmative acts for purposes of the state-created

danger doctrine, no act by the EMTs rendered her mother more vulnerable to danger than she

would have been in had the EMTs never arrived. According to the Third Circuit, “liability may

attach where the state acts to create or enhance a danger that deprives the plaintiff of his or her

Fourteenth Amendment right to substantive due process.” Morrow, 719 F.3d at 177. For liability

to attach, the state must place the victim in a worse position than had no state actor ever

intervened at all. Cappel, F. Supp. 3d at 480. Courts often draw on Bowers v. DeVito, a Seventh

Circuit case, in illustrating the appropriate benchmark:

We do not want to pretend that the line between action and inaction, between

inflicting and failing to prevent the infliction of harm, is clearer than it is. If the

state puts a man in a position of danger from private persons and then fails to

protect him, it will not be heard to say that its role was merely passive; it is as

much an active tortfeasor as if it had thrown him into a snake pit.

Bowers v. DeVito, 686 F.2d 616, 618 (7th Cir. 1982); see Mark, 52 F.3d at 1151.

Kneipp exemplifies a factual scenario where state officials enhanced a danger to the

victim akin to throwing them into a “snake pit.” See Kneipp, 95 F.3d at 1207. There, police

confronted a visibly intoxicated woman staggering along the side of the highway with her

husband. Id. at 1201. The officers stopped the couple just a third of a block from their home and

quickly separated them for questioning. Id. Police let the husband go home, but did not release

the wife, leading the husband to believe that “the police officers were going to take her either to

the hospital or the police station.” Id. at 1202. Instead, they left the wife to walk home alone,

and police found her unconscious at the bottom of an embankment the next morning. Id. at

1203. The Third Circuit concluded that “[i]t is conceivable that, but for the intervention of the

police, [the husband] would have continued to escort his wife back to their apartment where she

would have been safe.” Id. at 1209. Thus, it held a reasonable jury could conclude the officers’

actions “greatly increased” the danger to the woman. Id.

Here, no action or inaction by the EMTs rendered Armada Wilson more vulnerable to

danger than if the EMTs had never arrived. Though the EMTs’ arrival was allegedly delayed,

and they failed to act with urgency to address Armada Wilson’s declining condition, they had no

constitutional obligation to rescue her, and no fact here suggests that the EMTs set Armada

Wilson’s initial illness in motion or exacerbated the preexisting danger to her. By all accounts,

Armada Wilson was already rapidly declining leading up to and immediately after the EMTs’

arrival. DI 1 at ¶¶ 30, 40. And according to the allegations, hospital staff determined that

Armada Wilson’s death was “caused only by the delay in Ms. Wilson receiving appropriate

medical care.” DI 1 at ¶ 63 (emphasis added). Presumably, if the EMTs had never showed up,

the delay in Ms. Wilson’s receiving care would only have lengthened. Further, the allegation

that comes closest to an affirmative act — moving Armada Wilson in a small chair to the

ambulance without properly securing her — also did not place her in a worse position than if the

state had not acted at all. Although Armada Wilson’s rapid decline occurred at the same time as

the EMTs strapped her into the chair, Ms. Wilson does not allege that the EMTs’ affirmatively

placing or moving her mother in the chair exacerbated her mother’s condition or “greatly

increased” the danger Armada Wilson faced. Kneipp, 95 F.3d at 1209. Rather, Ms. Wilson

alleges that the EMTs wasted “critical[]” time strapping Armada Wilson into the chair, allowing

her condition to worsen until she became unresponsive. DI 1 at ¶ 49. Again, as the complaint

lays out the facts, had the EMTs never moved Armada Wilson or transported her to the

ambulance at all, the outcome would not have been any different.

Thus, the crux of Ms. Wilson’s complaint is not that the state threw Ms. Wilson into the

“snake pit,” but that it failed to rescue her from it when she called. But the state is not

constitutionally required to provide rescue services at all, much less competent rescue services

voluntarily undertaken. Brown, 318 F.3d at 483. As a result, Ms. Wilson’s state-created danger

claim also fails on prong three of element four.

IV. CONCLUSION

For the reasons explained above, the defendants’ motion to dismiss is granted and

plaintiff’s claims are dismissed without prejudice. As provided by the accompanying order,

plaintiff has 14 days to replead her claims, if she is able and should she choose to do so, in a

manner that complies with the applicable laws.