Sanford v. Stiles

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

8-2-2006

Sanford v. Stiles

Precedential or Non-Precedential: Precedential

Docket No. 04-4496

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4496

KATHLEEN SANFORD, Individually and as Administratrix of

the Estate of

Michael R. Sanford,

Appellant

v.

PAMELA STILES; DENNIS MURPHY;

EAST PENN SCHOOL DISTRICT

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil No. 03-cv-05698)

District Judge: Honorable Lawrence F. Stengel

Argued November 14, 2005

Before: FUENTES, BECKER,* and ROTH** Circuit Judges.

(Filed: August 2, 2006)

Robert G. Bauer (ARGUED)

*

Judge Becker sat on the panel in this case and did

substantial work in the drafting of this opinion. However, he died

before the opinion was filed. The decision is filed by a quorum of

the panel. See 28 U.S.C. § 46(d).

**

Judge Roth assumed senior status on May 31, 2006.

Abraham, Bauer & Spalding

1600 Market Street, 5th Floor

Philadelphia, Pennsylvania 19103

C. Theresa Barone

Nelson, Levine, de Luca & Horst

4 Sentry Parkway, Suite 300

Blue Bell, Pennsylvania 19422

Attorneys for Appellant

Anne E. Hendricks (ARGUED)

Paul N. Lalley

Levin Legal Group

1800 Byberry Road

1301 Masons Mill Business Park

Huntingdon Valley, Pennsylvania 19006

Attorneys for Appellees

OPINION OF THE COURT

PER CURIAM

This case arises out of the unfortunate death of Michael

Sanford, a sixteen-year-old boy who committed suicide at his home

in Emmaus, Pennsylvania. Kathleen Sanford, Michael’s mother,

appeals the District Court’s grant of summary judgment against her

in an action against the East Penn School District and one if its

guidance counselors, Pamela Stiles (“the Defendants”). Kathleen

Sanford filed suit under 42 U.S.C. § 1983, alleging that the

Defendants are liable for her son’s death under a state-created

danger theory. She also alleges that Pamela Stiles is individually

liable for negligence under state law. We will affirm the grant of

summary judgment against Sanford.

This case requires us to examine and clarify an unsettled

area of the law: the standard of fault in state-created danger cases.

As we have noted before, the relevant question – whether a state

2

actor’s behavior “shocks the conscience” – has an elusive quality

to it.1 This is in part because the level of culpability required to

shock the conscience will depend upon the extent to which a state

actor is required to act under pressure. In the present case, we are

satisfied that Kathleen Sanford’s state-created danger claims cannot

prevail because she is unable to show that Stiles or the East Penn

School District acted with the requisite level of culpability. We

also must reject Sanford’s state law negligence claim because Stiles

is entitled to broad immunity under the Pennsylvania Political

Subdivision Tort Claims Act.

I. Facts and Procedural History

The events in this case began when Karen Martin, a high

school student, received a troubling note from classmate Michael

Sanford.2 Karen and Michael had dated for a brief period. Karen

was passed the note on November 26, 2002, after Michael learned

that she was dating a student named Ryan. The note stated:

I know I really haven’t talked to you in awhile.

Hopefully this note doesn’t come out the wrong way.

I’ve heard 3 diff[erent] stories about you & Ryan.

The one I heard almost made me want to go kill

myself. Mostly because if there was any chance in

hell of you & me solving the what if’s I fucked it up.

Anyways I heard that instead of Danielle it was you

online Friday. If I said anything stupid, I apologize

(this weekend sucked & I’ve tried to make myself

forget it). So how have you been? How’s driving

going? Remember stop signs w/ white lines around

them are optional & if you hit a pedestrian @ nite &

he’s wearing black its 100 pts. For some reason, I

1

See, e.g., Estate of Smith v. Marasco, 430 F.3d 140, 153 (3d

Cir. 2005) (hereinafter “Smith II”) (citing Estate of Smith v.

Marasco, 318 F.3d 497, 509 (3d Cir. 2003) (hereinafter “Smith

I”)).

2

Hereinafter, for ease of reference, we refer to Michael

Sanford as “Michael” and Kathleen Sanford as “Sanford.”

3

just thought this & have to ask you, is there any

grudge or an[imosity] btwn us? I g2g. Write back if

you can, if not hopefully I ttyl. Luv ya. Ur ex-

husband, Mike.

(App. 41 (emphasis added).)

Karen indicated several times that, after reading Michael’s

note, she did not believe that Michael would actually kill himself.

Still, the day after receiving the message, Karen approached a

school guidance counselor, Barbara Valladares, about the note’s

contents. Karen claimed that she was worried about Michael and

that she was sick of him “bugging” her. Karen told Valladares that

she “didn’t think” Michael would hurt himself but that she just

“wanted to be safe.” (App. 462.) Karen asked Valladares not to

reveal the source of the note.

Valladares gave a copy of the note to Michael’s guidance

counselor, Pamela Stiles, and relayed both that Karen “wanted

Michael to stop bothering her” and that Karen was concerned about

Michael’s reaction to their earlier breakup. (App. 236.) Stiles

immediately called Michael into her office. She told Michael that

some of his friends were worried about him, and that therefore she

was worried about him. Stiles asked Michael if he was upset about

some sort of situation with a girl, and he replied: “that was two

months ago when I was upset about that. I’m not upset about that

now.” (App. 280.) According to Stiles, Michael responded in a

“very straightforward” manner. (App. 255.)

Additionally, Stiles asked Michael if he ever had plans to

hurt himself or if he would do such a thing. He answered

“definitely not.” (App. 256.) She asked him “forward thinking”

questions and became satisfied that he had future plans. (App. 256-

57.) Finally, Stiles asked Michael if anything else was upsetting

him. According to Stiles, Michael stated, “no, he was fine.” (App.

257.)

Stiles later reported that Michael “kind of shrugged that

[she] would even ask him these questions or if there was a

problem.” (App. 257.) Stiles was convinced that the feelings

expressed in the note dated several months back. She concluded

4

that “Mike did not present any signs . . . that were of a nature that

he was thinking about harming himself.” (App. 280.) Therefore,

because she believed Michael was not at risk, she did not contact

the school psychologist or Michael’s mother.

According to Stiles, she and Michael spoke for ten to fifteen

minutes during this first encounter. Stiles then gave the note back

to Valladares and “told her that [she] had seen Michael and that he

did not display any suicidal ideation to [her] in what he

verbalized.” (App. 259.) Also, Jason Pekarik, a friend of Michael’s,

later testified that Michael told him that he had been called into the

guidance office. According to Pekarik, Michael “laughed about it”

and said that “everything was fine.” (App. 647.)

On December 4, 2002, Michael again visited the guidance

office. Stiles stated that she asked Michael if he would like to come

in, but that Michael only asked Stiles if it was a “blond-haired girl”

who gave her the note. (App. 264.) Stiles said that she could not

share that information. She stated in her deposition that this was

because of ethical practices aimed to help students “feel

comfortable giving information.” (App. 264, 266.) Stiles invited

Michael to talk further. However, Michael only responded:

“thanks, I thought that’s what you would say. That’s all I needed.”

(App. 264.) According to Stiles, Michael “did not seem upset”

during their interaction. (App. 268.)

That evening, Michael committed suicide by hanging

himself. Immediately before his death, Michael and his mother had

argued. Sanford believed that the argument occurred because she

told Michael to take his sweatshirt off and to close the car

windows. According to Sanford, Michael “opened up the car door

while it was still going” and started to run home. (App. 847-48.)

Sanford looked for Michael, but when he saw the car, he “took off

again.” (App. 848.) At one point, Michael again entered the car, but

he only threw some of Sanford’s cigarettes out of the car, then

walked the short distance home. After they had both returned

home, Sanford asked Michael to clean the kitchen. When Sanford

went down to look for him, she found that he had hanged himself

from a door in the basement.

As the District Court noted, no one, including Sanford,

5

Karen Martin, or Michael’s uncle believed that Michael was

suicidal. Michael’s uncle, David Schlegel, was a licensed social

worker and had worked as a therapist. Schlegel testified that

Michael seemed “happy-go-lucky” before his death and that there

were no signs that he would harm himself. Additionally, shortly

before Michael’s death, Sanford had read an instant message

exchange between Michael and his friend Jason Pekarik. The

messages referenced suicidal behavior. Still, after reading the

messages, Sanford was not concerned that Michael could be

suicidal.

It appears that Stiles followed school protocol in making her

assessment of Michael. The Emmaus High School Counseling

Department Guidelines Handbook delineates a “Suicide Referral

Process.” That protocol states:

In cases of suicide ideation, the assigned counselor

will assess the situation no matter what the referral

source (SAP, teacher, parent, and self-referral). The

counselor will determine if and when a referral

should be made to the school psychologist.

(App. 85.) A flow chart provides further information.

Sanford filed this action against Stiles and the East Penn

School District in the District Court for the Eastern District of

Pennsylvania. She alleged that the Defendants were liable for

Michael’s death under a state-created danger theory for

constitutional violations pursuant to 42 U.S.C. § 1983. She also

alleged that Stiles was individually liable for negligence under state

law. The Defendants filed a motion for summary judgment, which

the District Court granted.3

3

We have jurisdiction to review the District Court’s

determination under 28 U.S.C. § 1291. Our review of a grant of

summary judgment is plenary and “we must grant all reasonable

inferences from the evidence to the non-moving party.” See Knabe

v. Boury Corp., 114 F.3d 407, 410 n.4 (3d Cir. 1997); see also

Anderson v. Consol. Rail Corp., 297 F.3d 242, 246-47 (3d Cir.

2002).

6

The District Court determined that the substantive due

process claims brought against both Defendants failed.

Specifically, a reasonable jury could not conclude that Stiles

“create[d] the danger” to Michael or that her conduct exceeded

mere negligence. The District Court also rejected Sanford’s claim

of municipal liability against the East Penn School District because

Sanford failed to create a genuine issue of material fact as to

whether Stiles caused an underlying constitutional violation.

Finally, the District Court rejected the state law negligence claim

against Stiles both because Sanford could not prove causation

under tort law and because Stiles was entitled to immunity under

Pennsylvania law.

II. Substantive Due Process: Sanford’s State-Created Danger

Claim Against Stiles

Sanford alleges that Stiles is liable under a state-created

danger theory because her actions “increased the risk that Michael

would commit suicide.” (Appellant’s Br. at 14.) Generally, the Due

Process Clause does not impose an affirmative duty upon the state

to protect citizens from the acts of private individuals. See

DeShaney v. Winnebago County Dep’t of Soc. Servs., 489 U.S.

189, 198-200 (1989). However, we have explicitly recognized two

exceptions to this general rule. First, the state has a duty to protect

or care for individuals when a “special relationship” exists.4

4

This Court has generally stated that this first exception,

derived from DeShaney, requires a custodial relationship. It is a

very limited exception. For example, we have read DeShaney

“primarily as setting out a test of physical custody.” Torisky v.

Schweiker, 446 F.3d 438, 445 (3d Cir. 2006) (citation omitted). A

“deprivation of liberty” through, for example, incarceration or

institutionalization, is required. See id. at 444.

No “special relationship” existed here. In D.R. v. Middle

Bucks Area Vocational Technical School, 972 F.2d 1364 (3d Cir.

1992), we held that no special relationship exists between school

children and the state. This is because parents decide where their

children’s education will take place, because school children

“remain resident in their homes,” and because “the child is not

physically restrained from leaving school during school hours.” Id.

7

Second, the state has a duty when a “state-created danger” is

involved. See Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 907

(3d Cir. 1997). Sanford’s federal claims are based on this second

exception.

In Kneipp v. Tedder, 95 F.3d 1199, 1201 (3d Cir. 1996), we

first adopted the state-created danger theory as a mechanism by

which plaintiffs may establish constitutional violations under 42

U.S.C. § 1983. We confirmed that 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. Id. at 1205; see also Brown v. Pa. Dep’t of Health

Emergency Med. Servs. Training Inst., 318 F.3d 473, 478 (3d Cir.

2003). The state-created danger theory is now widely recognized.

Although the Supreme Court has not yet explicitly adopted it, a

majority of our sister circuits have implemented some variation of

the theory.5

at 1371-73; see also Ingraham v. Wright, 430 U.S. 651, 670 (1977)

(finding that, in another context, “[t]he schoolchild has little need

for . . . protection” because “the public school remains an open

institution”).

5

See Pena v. Deprisco, 432 F.3d 98, 107-10 (2d Cir. 2005);

Kallstrom v. City of Columbus, 136 F.3d 1055, 1066 (6th Cir.

1998); Reed v. Gardner, 986 F.2d 1122, 1126 (7th Cir. 1993);

Forrester v. Bass, 397 F.3d 1047, 1057-59 (8th Cir. 2005);

Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006);

Uhlrig v. Harder, 64 F.3d 567, 572 (10th Cir. 1995); Butera v.

District of Columbia, 235 F.3d 637, 648-51 (D.C. Cir. 2001); see

also Wyke v. Polk County Sch. Bd., 129 F.3d 560, 567 (11th Cir.

1997) (“The language of DeShaney does indeed ‘leave room’ for

state liability where the state creates a danger or renders an

individual more vulnerable to it.”). But see Velez-Diaz v.

Vega-Irizarry, 421 F.3d 71, 80 (1st Cir. 2005) (“This court has, to

date, discussed the state created danger theory, but never found it

actionable on the facts alleged.”) (internal quotation marks and

citation omitted); Pinder v. Johnson, 54 F.3d 1169, 1176 n.* (4th

Cir. 1995); Rios v. City of Del Rio, 444 F.3d 417, 422 (5th Cir.

2006) (noting that “this court has frequently spoken of the

8

To prevail on a state-created danger claim in the Third

Circuit, a plaintiff must prove the following four elements:

(1) the harm ultimately caused was foreseeable and

fairly 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 (3d Cir. 2006)

(internal quotation marks and footnotes omitted); see also Smith II,

430 F.3d at 153 (quoting an earlier version of the test).

Sanford maintains that Stiles created the risk of Michael’s

death by, for example, holding herself out as a source of aid to

Michael, cutting off other possible avenues of help, undertaking an

assessment of Michael without proper training, improperly

evaluating his risk, and deciding not to contact the school

psychologist or a parent. Sanford’s claim against Stiles fails

because she is unable to show at least two of the four required

elements of a state-created danger claim. Specifically, no

reasonable jury could find (1) that Stiles acted with the requisite

degree of culpability, or (2) that she “create[d] an opportunity that

otherwise would not have existed for [harm] to occur.” Smith II,

430 F.3d at 153. Therefore, we will affirm the judgment of the

District Court. We examine the two elements in question, prongs

‘state-created danger’ theory,” but has never adopted it).

9

two and four, in turn.6

A. Prong Two: The Standard of Culpability

Because the culpability requirement is often the most

difficult element for a plaintiff to prove, the outcome of a state-

created danger case will often turn on this prong. See id. The

Supreme Court has not fully explicated the standard of culpability

in substantive due process cases generally, and our own

jurisprudence is difficult to discern. See County of Sacramento v.

Lewis, 523 U.S. 833, 849 (1998) (noting that a complete analysis

of the fault requirement in substantive due process cases is “a

matter for closer calls”). We now attempt to clarify this difficult

area of the law.

i. Jurisprudence on the Standard of

Culpability

In assessing the standard of fault in state-created danger

cases, we have inquired in the past whether “the state actor acted

in willful disregard for the safety of the plaintiff.” See, e.g., Morse,

132 F.3d at 908 (quoting Kneipp, 95 F.3d at 1208). More recently,

largely in consideration of the Supreme Court’s decision in Lewis,

523 U.S. at 847-49, we have acknowledged that the fault inquiry

requires asking whether the state official “acted with a degree of

culpability that shocks the conscience.” See, e.g., Bright, 443 F.3d

at 281.

The Supreme Court decided Lewis nearly two years after we

issued our opinion adopting the state-created danger theory in

Kneipp. The Court granted certiorari to resolve a conflict among

the circuits as to the standard of culpability for due process

violations in the context of a police chase. Lewis, 523 U.S. at 839.

The Court held that generally, in a due process challenge to

executive action, the threshold question is whether the government

officer’s actions “shock the contemporary conscience.” Id. at 847

6

We assume without deciding that Sanford has raised an

issue of fact for summary judgment purposes as to the first and

third prongs.

10

n.8. The Court determined that in the specific context of a high-

speed police pursuit, only an “intent to harm” the plaintiff could

shock the conscience. Id. at 854. However, the Court stated that

whether behavior rises to the level of conscience-shocking will

depend upon the facts of each individual case. Id. at 850 (“Rules of

due process are not . . . subject to mechanical application in

unfamiliar territory.”).

The Court suggested that in some instances, conduct

involving more than negligence but less than intentional conduct

could be “shocking” in the constitutional sense. Therefore,

deliberate indifference, or perhaps gross negligence or

recklessness, could be sufficient. Id. at 849-50. In discussing the

importance of context, the Court compared a high-speed chase or

a prison riot on one hand with decisions regarding the medical

needs of custodial prisoners on the other. Id. at 849-52. In the latter

custodial situation, deliberate indifference to the medical needs of

prisoners would likely be sufficient because the state actor could

engage in “actual deliberation” and “unhurried judgments.” Id. at

851, 853. In the former situation, where deliberation is impossible,

the higher standard of “intent to harm” would be required. Id. at

854. Of course, we note that Lewis was not a state-created danger

case but rather dealt with substantive due process generally.

Following Lewis, we have stated that in substantive due

process cases, “[t]he exact degree of wrongfulness necessary to

reach the conscience-shocking level depends upon the

circumstances of a particular case.” Miller v. City of Philadelphia,

174 F.3d 368, 375 (3d Cir. 1999). And we have had occasion to

reflect on the appropriate standard of fault in a number of different

settings. Sometimes, an intent to cause harm has been required;

other times, deliberate indifference has been sufficient. In Miller,

174 F.3d at 375-76, we first utilized a standard part way between

intent to harm and deliberate indifference. In that case, a

Department of Human Services social worker believed that two

children were victims of domestic abuse, based on reports by

daycare personnel, videotape footage of the children’s injuries, and

statements made by the children themselves. Id. at 371. The

children were removed almost immediately from their mother’s

custody after an order was issued by an on-call emergency judge.

Id. After custody was restored, the children’s mother filed a

11

substantive due process suit against the social worker, alleging that

he had pursued his investigation without probable cause,

misrepresented facts to an assistant city solicitor, and induced a

children’s hospital doctor to perjure himself. Id.

We stated that the social worker’s actions, leading to the

emergency order to separate parent and child, involved less

urgency than a high-speed chase but more urgency than a decision

involving the medical care of a prisoner. Id. at 375-76. Therefore,

we applied a standard of fault between “deliberate indifference”

and “purpose to cause harm.” Id. at 375. We defined this new

standard as “gross negligence or arbitrariness that indeed ‘shocks

the conscience.’” Id. at 375-76. This standard was created to apply

to cases in which no immediate or split-second decision was

required, but where officials nonetheless did not have the luxury of

true deliberation. As a result, we had articulated three possible

standards to determine whether behavior rose to the level of

conscience-shocking: 1) deliberate indifference; 2) “gross

negligence or arbitrariness that indeed ‘shocks the conscience”; and

3) intent to cause harm. We concluded that the middle standard had

not been met, relying in part on the fact that there was “substantial

evidence . . . that the children were in danger of abuse.” Id. at 377.

Like Lewis, Miller was not a “state-created danger” case, and is

therefore distinguishable on that basis. However, given the

subsequent incorporation of Miller into our state-created danger

case law, we find it highly instructive.

In Nicini v. Morra, 212 F.3d 798, 800-01 (3d Cir. 2000) (en

banc), we reviewed a substantive due process claim brought by a

minor against a New Jersey Department of Human Services

caseworker who placed him in the equivalent of a foster home.

Nicini was clearly very troubled and had apparently made two

suicide attempts in the past. Id. at 801. After Nicini was sexually

abused by one of the parents in his new foster home placement, he

filed suit against the caseworker. He alleged that the caseworker

failed to properly investigate the background of the foster parent,

and that the caseworker knew or should have known that the

12

placement was inappropriate.7 Id. at 804. We assessed the

caseworker’s actions under the deliberate indifference standard,

declining to impose the heightened standards utilized in Lewis and

Miller. Id. at 811. We explicitly distinguished Miller because the

caseworker in Nicini, unlike the social worker in Miller, had “time

‘to make unhurried judgments’” in investigating whether to permit

the child to remain in the foster care in which he was placed. Id.

(quoting Lewis, 523 U.S. at 853).

Roughly two years later, in Ziccardi v. City of Philadelphia,

288 F.3d 57, 58-59 (3d Cir. 2002), a plaintiff brought a substantive

due process claim against two paramedics, asserting that their

careless actions in lifting him from a fall rendered him a

quadriplegic. Rather than immobilizing the plaintiff’s cervical

spine before they moved him from the ground, the paramedics

quickly lifted him and allegedly caused his injuries. Id. at 60.

We noted that Miller was binding and that the standard of

culpability discussed there – a standard more rigorous than

deliberate indifference – should apply. Id. at 65. However, we

determined that the language in Miller – “gross negligence or

arbitrariness that indeed ‘shocks the conscience’” – was not

intended as a “precise articulation.” Id. at 65. Specifically, we

noted that arbitrariness is a general requirement for substantive due

process violations and that gross negligence encompasses a lower

level of intent than deliberate indifference. Id. at 66 n.6.

In attempting to elucidate and apply the level of culpability

7

Nicini also was not a state-created danger case. There,

potential liability was based upon the “special relationship” that

existed between the minor and the state. Id. at 809. We first found

that the state had an affirmative duty to protect the child under the

Due Process Clause. To that end, we held that “when the state

places a child in state-regulated foster care, the state has entered

into a special relationship with that child which imposes upon it

certain affirmative duties.” Id. at 808. Failure to perform those

duties could give rise to a cause of action under § 1983. We then

went on to determine whether the caseworker’s conduct was

“egregious enough” to amount to a constitutional violation. Id. at

809.

13

required in Miller, we noted that the case “appear[ed] to have

demanded proof of something less than knowledge that the harm

was practically certain but more than knowledge that there was a

substantial risk that the harm would occur.” Id. at 66. We

formulated the following standard for circumstances where no

instantaneous decision is necessary, but where the state actor also

does not have the luxury of proceeding in a deliberate fashion: A

plaintiff must show that the “defendant[] consciously disregarded,

not just a substantial risk, but a great risk that serious harm would

result.” Id. (emphasis added).8

We next decided Estate of Smith v. Marasco, 318 F.3d at

506, or Smith I, in which the plaintiffs explicitly brought a state-

created danger claim. As in Ziccardi and Miller, we believed that

the situation in Smith I demanded a standard for conscience-

shocking behavior that was between deliberate indifference and

intent to cause harm. Specifically, we examined the

appropriateness of state police officers’ decision, inter alia, to

activate a Special Emergency Response Team. Id. at 508-09. We

determined that the relevant decisions were not made in a

“hyperpressurized environment.” Id. at 508.

Not acknowledging Ziccardi, we utilized the articulation

earlier formulated in Miller. We reiterated that in situations falling

in the grey area between requiring “true split-second decisions”

and allowing “relaxed deliberation,” liability may be found if an

official’s conduct “exhibits a level of gross negligence or

arbitrariness that shocks the conscience.”9 Id. at 509.

8

Ziccardi created a new articulation for the mid-level

standard first discussed in Miller. The Ziccardi Court explicitly

recognized that the case before it was not a “state created danger”

case and therefore was not governed by Kneipp and its progeny. Id.

at 65 n.5. In Ziccardi, the plaintiff alleged that he was harmed

directly by Philadelphia Fire Department paramedics and the city.

See id. at 58-59.

9

Following Smith I, we decided A.M. v. Luzerne County

Juvenile Detention Center, 372 F.3d 572 (3d Cir. 2004). There, we

found that the deliberate indifference standard would apply to the

question whether employees of a juvenile detention center violated

the plaintiff’s substantive due process rights in failing to protect

14

It was not until we decided Rivas v. City of Passaic, 365

F.3d 181 (3d Cir. 2004), that we first explicitly acknowledged the

heightened standard in Ziccardi in a state-created danger case.10

There, we considered a family’s claim that two emergency medical

technicians exposed a seizure victim to danger by calling the police

and reporting that the victim attacked them, but failing to warn the

officers that the victim had suffered a seizure. Id. at 185-88. Upon

arrival, the police restrained the man, allegedly causing his death.

Id. at 200. We echoed the Ziccardi reiteration of Miller, stating at

one point that a reasonable jury could conclude that the technicians

“consciously disregarded a great risk of serious harm to [the

victim].”11 Id. at 196.

Finally, in Smith II, 430 F.3d at 153-56, we again considered

the elusive fault requirement, though in the context of qualified

immunity. We first noted the inherent difficulty in determining

whether conduct “shocks the conscience.” Id. at 153 (quoting Smith

him from assault by other residents. Id. at 579, 587. We determined

that split-second decisions were not required because “forethought

about [a resident’s] welfare [was] not only feasible but obligatory.”

Id. at 579 (first alteration in original) (internal quotation marks and

citation omitted). Specifically, “child-care workers . . . had the

opportunity over a five-week period to see a pattern of physical

assaults . . . emerging . . . and develop a plan to protect A.M. from

assaults by other residents.” Id. at 587. Our holding also rested in

part upon the custodial nature of the center.

10

But cf. Schieber v. City of Philadelphia, 320 F.3d 409 (3d

Cir. 2003) (single-judge opinion discussing Ziccardi in the context

of a state-created danger claim).

11

We did not explicitly adopt the Ziccardi standard in Rivas.

In fact, it is not altogether clear which standard was applied. For

example, at one point after discussing Ziccardi, the opinion refers

to the only proper test as whether the technicians consciously

disregarded “a substantial risk.” Rivas, 365 F.3d at 196. That would

indicate use of the deliberate indifference standard. However, given

that the opinion speaks deferentially of Ziccardi, and that the

culpability question is later summarized in terms of a “great risk of

harm,” id. at 196, we believe that Ziccardi was probably meant to

apply.

15

I, 318 F.3d at 509; Herrera v. Collins, 506 U.S. 390, 428 (1993)

(Scalia, J., dissenting) (questioning “the usefulness of ‘conscience

shocking’ as a legal test”)). We also stated that “[o]ur . . . decisions

have not clarified this [second] element of the test to any great

extent.” Id. at 153. For example, we recognized that the definition

applied in Smith I was “somewhat circular.” Id.

In addressing the claim before us, we noted and seemed to

apply our decision in Ziccardi, and stated in a footnote that the

standard articulated there was “useful.” Id. at 154 n.10. However,

we also stated that the Ziccardi opinion did not deal with the

question whether the standard formulated applied to state-created

danger claims. Id. at 154.

ii. Conclusion on the Standard of Culpability

From the cases discussed above, we gather the following.

The level of culpability required to shock the conscience increases

as the time state actors have to deliberate decreases. In a

“hyperpressurized environment,” an intent to cause harm is usually

required. On the other hand, in cases where deliberation is possible

and officials have the time to make “unhurried judgments,”

deliberate indifference is sufficient.12 Though we need not decide

the issue here, we note the possibility that deliberate indifference

might exist without actual knowledge of a risk of harm when the

risk is so obvious that it should be known.13 We also recognize that

12

In Lewis, the Supreme Court specified that deliberation

need not be viewed in the “narrow, technical sense” often adopted

by traditional homicide law. 523 U.S. at 852 n.11. Rather, the

Court suggested that deliberation, as required to show deliberate

indifference, could take place very quickly. Id.

13

We leave to another day the question whether actual

knowledge is required to meet the culpability requirement in state-

created danger cases. On the one hand, the Supreme Court has held

that actual subjective knowledge of a risk is required for at least

some Eighth Amendment claims. See Farmer v. Brennan, 511 U.S.

at 829. However, the Court has also held that the “obviousness” of

a risk can be sufficient for liability in other cases. See Bd. of the

County Commissioners of Bryan County v. Brown, 520 U.S. 397,

410-12 (1997) (obviousness sufficient in decision-to-hire cases);

16

there are circumstances involving something less urgent than a

“split-second” decision but more urgent than an “unhurried

judgment.” Generally, this category will include situations in which

the state actor is required to act “in a matter of hours or minutes.”

See Ziccardi, 288 F.3d at 65. In other words, these are situations in

which there is some urgency and only “hurried deliberation” is

practical. For these circumstances, we utilize the standard set forth

in Miller and reiterated in the explicit context of state-created

danger in Smith I. However, we believe that “gross negligence or

City of Canton v. Harris, 489 U.S. 378, 390 (1989) (obviousness

sufficient in failure-to-train claims).

The Third Circuit has since stated that generally, a

municipality may be held liable for a constitutional violation

arising from a policy or custom if it demonstrates indifference to a

known or obvious consequence. See, e.g., A.M., 372 F.3d at 580.

But we have not addressed the question as it relates to underlying

state-created danger claims. There is currently a divide among the

circuits on this issue. Some courts have concluded that the more

expansive objective definition of deliberate indifference utilized in

Brown and Harris extends to state-created danger claims or

Fourteenth Amendment substantive due process cases generally.

See, e.g., Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th

Cir. 2006) (stating that a state official must “act[] with deliberate

indifference to the known or obvious danger”) (citation omitted);

Board v. Farnham, 394 F.3d 469, 478 (7th Cir. 2005) (“[W]e have

articulated the test for deliberate indifference for Fourteenth

Amendment purposes to be ‘a conscious disregard of known or

obvious dangers.’”) (citations omitted); Christiansen v. City of

Tulsa, 332 F.3d 1270, 1281 (10th Cir. 2003) (“[A] plaintiff must

demonstrate that . . . the risk was obvious or known . . . [and]

defendants acted recklessly in conscious disregard of that risk

. . . .”) (internal quotation marks and citation omitted). In contrast,

the Sixth Circuit, for example, has utilized a purely subjective

standard. See, e.g., McQueen v. Beecher Cmty. Sch., 433 F.3d 460,

469 (6th Cir. 2006) (noting that “the official must both be aware of

facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference”)

(internal quotation marks and citation omitted). Again, we need not

decide this question here as there is no dispute that Stiles was

subjectively aware of a risk that Michael might be suicidal.

17

arbitrariness that indeed ‘shocks the conscience’” is a standard that

provides little guidance. Therefore, we will incorporate the

Ziccardi test, which is an interpretation of Miller, insofar as it

requires that the defendants disregard a great risk of serious harm

rather than a substantial risk.14

In conclusion, we hold that in a state-created danger case,

when a state actor is not confronted with a “hyperpressurized

environment” but nonetheless does not have the luxury of

proceeding in a deliberate fashion, the relevant question is whether

the officer consciously disregarded a great risk of harm. Again, it

is possible that actual knowledge of the risk may not be necessary

where the risk is “obvious.”15

iii. Application of the Standard of Culpability

The District Court concluded that the deliberate indifference

standard applied, but like many other courts to examine this

difficult area of the law, it incorrectly differentiated between a

“shocks the conscience standard” on the one hand and a “deliberate

indifference standard” on the other. For example, the Court

suggested that the Lewis standard does not apply in non-urgent

situations. We again clarify that in any state-created danger case,

14

At this juncture, we need not decide upon the

“seriousness” of harm that is required, and see no need to comment

on this question.

15

We recognize that in some instances these standards may

become arduous to apply. Other circuits have taken a more

straightforward approach to the fault requirement. For example, the

Ninth Circuit has held that “deliberate indifference to [a] known or

obvious danger” is the uniform standard in all state-created danger

cases. See Kennedy, 439 F.3d at 1062 (alteration in original) (citing

L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)). The Sixth and

Eighth Circuits have suggested a two-tiered standard under which

deliberate indifference will apply if an opportunity for reflection

exists while intent to harm will apply to “split-second decision[s].”

See McQueen, 433 F.3d at 469; Hart v. City of Little Rock, 432

F.3d 801, 806 (8th Cir. 2005). However, unlike these courts, we are

constrained by Miller and subsequent cases to recognize our three

existing tests to identify conscience-shocking behavior.

18

the state actor’s behavior must always shock the conscience. But

what is required to meet the conscience-shocking level will depend

upon the circumstances of each case, particularly the extent to

which deliberation is possible. In some circumstances, deliberate

indifference will be sufficient. In others, it will not.

In finding that the deliberate indifference standard applied,

the District Court noted that Stiles “had an entire week – and

another visit from Michael Sanford – to reconsider her [initial]

evaluation.” We agree that at least some forethought about

Michael’s condition was possible. Certainly, the intent to harm

requirement utilized in Lewis does not apply. We also find this case

distinguishable from Miller to the extent that there was probably no

“need for [Stiles] to act in a matter of hours or minutes.” Ziccardi,

288 F.3d at 65. But regardless of whether deliberate indifference,

or something more, is required to show that Stiles’ conduct

shocked the conscience, Sanford is unable to meet her burden.

Mere negligence is not enough to shock the conscience. See

Schieber, 320 F.3d at 419. Thus, the relevant question is not

whether Stiles should have contacted the school psychologist or

Michael’s parent. Instead, the question is whether, under the

circumstances, Stiles’ decisions shock the conscience. We hold

that, applying either the deliberate indifference standard or the

heightened standard we articulated above, they do not.

First, we examine the apparent gravity of the risk. As the

District Court noted, “no one,” including Michael’s mother, Karen,

or Michael’s uncle, believed that Michael was at risk of harm.

Karen indicated several times that she did not believe that Michael

would actually commit suicide. For example, she stated: “I was

shocked by the fact that he said he wanted to go kill himself. But,

of course, I didn’t think by the context of it that he was serious.”

(App. 410.) Karen had never heard Michael talk about hurting

himself before and she concluded that he was “not being serious”

since “it just seem[ed] like one of those things that you would say”

and because Michael joked in the note. (App. 410, 460-61.)

We also do not believe that the language in the note itself

was a clear cry for help. Karen testified that the expression “I

want[] to kill myself” was used “all the time” by her friends. (App.

461.) Karen was also told by Valladares that the guidance office

“get[s] notes like this all the time.” (App. 424.) Significantly, the

19

note also referred to any suicidal thoughts as occurring in the past.

Second, Stiles cannot be said to have “disregarded” any risk

that Michael presented. She did not simply ignore the note. To the

contrary, she promptly spoke with Michael, at which point she

made a “conscious judgment” that he indicated no suicidal signs.

(See, e.g., App. 421.) This judgment was influenced by the fact that

Michael assured Stiles that he was no longer upset about the issue

with Karen and that he had future plans. (App. 256, 280.) For these

reasons, we cannot conclude that Stiles’ conduct shocked the

conscience. The evidence adduced by Sanford, even when all

inferences are drawn in her favor, falls short of both the standard

we have borrowed from Ziccardi and the deliberate indifference

standard.

B. Prong Four: Did Stiles Create A Danger?

Given that Sanford has failed to show that Stiles

demonstrated the requisite level of fault, her claim can go no

further. However, we note that Sanford has also failed to create a

question of fact as to the fourth prong of the state-created danger

test. Given our opinion in Bright, we ask if Stiles used her authority

“in a way that created a danger” to Michael or that “rendered [him]

more vulnerable to danger than had [she] not acted at all.” Bright,

443 F.3d at 281.

Sanford alleges eleven “specific affirmative acts” on the part

of Stiles. (Appellant’s Br. at 25-26.) For example, she alleges that

Stiles (1) “Interject[ed] herself into Michael’s mental status,” (2)

“Cut[] Michael off from other sources of aid,” (3) “Question[ed]

Michael in a manner that pushed him toward suicide,” (4)

“Misdiagnos[ed] Michael’s psychological condition,” (4)

“Intentionally decid[ed] not to refer Michael to the school

psychologist,” (5) “Intentionally decid[ed] not to contact Michael’s

parent,” and (6) “Refus[ed] Michael’s request to reveal the identify

of the person who had turned in the note.” (Id.)

We agree with the District Court that “[i]n this case, the link

between the Defendants’ conduct and Michael Sanford’s untimely

death is far too attenuated to justify imposition of liability.” We

reach this decision based on several considerations. First, as the

District Court noted, Michael visited Stiles on only two occasions

20

– once when she initially called him into her office and again when

Michael asked her who she had received the note from. There is no

evidence that Michael was agitated by these meetings, or that they

contributed in any way to his suicidal feelings.

Second, contrary to Sanford’s contentions, there is nothing

in the record to suggest that Michael relied on Stiles for support or

guidance. The primary encounter between Stiles and Michael was

initiated by Stiles, and Michael repeatedly indicated that nothing

was troubling him. Finally, Stiles did not in any way interfere with

Sanford’s parental relationship with her son. She did not, for

example, suggest that Michael not speak with his mother. Sanford’s

choice not to intervene, for example, once she had seen Michael’s

instant messages referring to suicide, was not influenced by Stiles.

As the District Court noted, Sanford has attempted to

“recharacterize” Stiles’ failures as “affirmative actions.” We

believe that this case is more about Stiles’ failure to prevent

Sanford’s death. As we have stated many times, “mere failure to

protect an individual . . . does not violate the Due Process Clause.”

Id. at 284 (citing DeShaney, 489 U.S. at 197) (internal quotation

marks omitted).

III. Related Case Law

Our holding that Sanford has failed to make out a state-

created danger claim is consistent with the case law of other

circuits that have addressed similar cases involving student

suicides. In fact, we are aware of only one such instance in which

a state-created danger case against school officials survived

summary judgment.

Sanford argues that this case is analogous to Armijo v.

Wagon Mound Public Schools, 159 F.3d 1253 (10th Cir. 1998), in

which the Tenth Circuit found sufficient evidence for the plaintiff

to survive summary judgment in a state-created danger claim

against certain school officials. However, Armijo presented a far

more compelling case. There, a sixteen-year-old special education

student committed suicide after he was suspended from school. Id.

at 1256-57. He was driven home in the middle of the day, while

angry. Id. at 1257. Armijo’s parents were not notified and the boy

was left to remain alone at home, in contravention of school policy.

21

Id. Additionally, school officials were aware that Armijo had

access to firearms at home, id. at 1264, and that he had previously

threatened suicide. For example, Armijo had said to a school aid:

“I’m just going to shoot myself” and “maybe I’d be better off

dead.” Id. at 1256. Armijo is a far cry from this case because there

was much more evidence there that school officials actually created

the danger to Armijo.

This case is more properly analogized to Wyke v. Polk

County School Board, 129 F.3d 560 (11th Cir. 1997). Like this

case, Wyke focuses on a failure to intervene. A thirteen-year-old

boy named Shawn committed suicide at home after twice

attempting suicide at school. Id. at 563. School officials were

“somewhat aware” of these incidents but failed to hold Shawn in

custody, contact his mother, or provide him with counseling

services. Id. Another boy who was aware of Shawn’s first suicide

attempt alerted his own mother, who in turn notified the school’s

dean of students. Id. at 564. The dean made the assurance that “he

would take care of it” but only read Shawn some verses from the

Bible. Id. The mother who reported the incident to the dean

testified that she would have contacted Shawn’s mother directly

had she known that the dean would not intervene in a more

meaningful way. Id. at 570.

The Eleventh Circuit concluded that Shawn’s mother’s

claim failed as a matter of law because nothing in the Due Process

Clause required that school officers protect Shawn’s life. Id. at 569.

The school did not make a decision to prevent anyone from helping

Shawn and it could not be held liable. Id. While we do not express

agreement or disagreement with the Eleventh Circuit’s holding, we

note that, like Armijo, Wyke presented much more urgent

circumstances than those we review here. Still, Wyke’s claim

failed.

The First and Seventh Circuits have also denied claims

involving similar or more pressing risks than those we confront

here. In Hasenfus v. LaJeunesse, 175 F.3d 68 (1st Cir. 1999), the

First Circuit rejected parents’ Due Process claim after their

daughter attempted suicide on school grounds. The child, a known

rape victim, attempted suicide after being reprimanded in front of

her schoolmates by a teacher. Id. at 73. Seven other students in the

girl’s middle school had attempted suicide in the three months

22

prior. Id. at 70. In affirming the district court, the First Circuit

stated:

The federal courts have no general authority to

decide when school administrators should introduce

suicide prevention programs, or whether an unruly or

upset school child should be sent out of class, or

what should be said to other parents about a tragic

incident at school. Substantive due process is not a

license for judges to supersede the decisions of local

officials and elected legislators on such matters.

Id. at 74.

Finally, in Martin v. Shawano-Gresham School District, 295

F.3d 701, 704 (7th Cir. 2002), a seventh grade student committed

suicide after she was suspended for possessing a cigarette on

school property. The student, Timijane, went home “crying pretty

hard.” Id. It was later discovered that she had shown some signs of

suicide risk – for example, she had a book in her locker called

“After a Suicide,” and there had been other suicide attempts at the

school. Id. at 704, 710. The Seventh Circuit refused Timijane’s

parents’ claim, holding that “[b]ecause the defendants did not

create or increase a risk that Timijane would commit suicide . . .

the . . . substantive due process claim must fail.” Id. at 712.

Given this case law, we are confident that we have reached

the correct decision in this case.

IV. Qualified Immunity

Because we find that no constitutional right was violated,

we need not address the question whether Stiles was entitled to

qualified immunity in the federal claim. See Saucier v. Katz, 533

U.S. 194, 201 (2001) (“If no constitutional right would have been

violated were the allegations established, there is no necessity for

further inquiries concerning qualified immunity.”).

V. Liability of the East Penn School District

Sanford advances a claim of municipal liability against the

East Penn School District. She argues that the School District is

23

liable for damages because Stiles’ actions were taken pursuant to

school policy. For example, Sanford alleges that the District’s

counselors are not adequately prepared to make an initial

assessment of a student’s suicide risk.16 (Appellant’s Br. at 37.) The

District Court dismissed the municipal liability claim on summary

judgment.

There is no respondeat superior theory of municipal liability,

so a city may not be held vicariously liable under § 1983 for the

actions of its agents. See Monell v. Dep’t of Soc. Servs., 436 U.S.

658, 691 (1978). Rather, a municipality may be held liable only if

its policy or custom is the “moving force” behind a constitutional

violation. See Brown, 520 U.S. at 400; see also Collins v. City of

Harker Heights, 503 U.S. 115, 122 (1992) (stating that a

municipality is only liable when the municipality itself is the

“wrongdoer”). In Brown v. Pennsylvania Department of Health

Emergency Medical Services Training Institute, 318 F.3d at 482,

we held that it is possible for a municipality to be held

independently liable for a substantive due process violation even

when none of its individual employees is liable. However, we

emphasized that in order for municipal liability to exist, there must

still be a violation of the plaintiff’s constitutional rights. Id. (citing

Collins, 503 U.S. at 122). Here, there was none.

We assume arguendo that the School District’s Suicide

Referral Process constitutes a “policy” or “custom” of the

District.17 Still, in order to prove that a violation occurred, Sanford

must show a “direct causal link” between the policy and a

constitutional violation. Id. Additionally, to meet the standard of

fault, Sanford must show that the municipality acted with

“deliberate indifference” toward the rights of its students. Id. at 479

(“[T]he [Supreme] Court has instructed that ‘deliberate

indifference’ is the necessary standard in order to establish § 1983

16

As the District Court noted, Sanford did not explicitly

pursue a “failure to train” claim.

17

“Policy is made when a decisionmaker possessing final

authority to establish municipal policy with respect to the action

issues an official proclamation, policy, or edict.” Berg v. County of

Allegheny, 219 F.3d 261, 275 (3d Cir. 2000) (internal quotation

marks and citation omitted).

24

liability of a municipality.”) (citation omitted); see also Carswell

v. Borough of Homestead, 381 F.3d 235, 245 (3d Cir. 2004); Berg,

219 F.3d at 276.

In our view, Sanford has not made either showing. She has

failed to cite any evidence that Michael’s reasons for taking his

own life were related to Stiles’ “intervention,” which was

undertaken in accordance with school policy. Therefore, no policy

can be said to have caused Michael’s death. Sanford has also failed

to create a genuine issue of material fact as to whether the School

District “disregarded a known or obvious consequence of [its]

action.” Brown, 520 U.S. at 410. For example, as the District Court

noted, there is no evidence of a pattern of student suicides in the

district. Nor is there evidence that the policy had failed in the past.

Hence, we find no reason to overturn the District Court’s judgment

with respect to Sanford’s claim of municipal liability.

VI. Sanford’s State Law Negligence Claim

We now turn to Sanford’s allegation that Stiles is liable for

negligence under Pennsylvania law. The District Court determined

that Sanford’s state claim failed for lack of causation. Specifically,

it stated that Sanford “has not presented evidence that Pamela

Stiles caused Michael Sanford to kill himself.” Additionally, the

District Court found that Stiles is entitled to immunity under

Pennsylvania’s Political Subdivision Tort Claims Act (“PPSTCA”).

We agree and affirm on this point.

Under the PPSTCA, local agencies such as school districts

are given broad tort immunity. The Act provides that, “no local

agency shall be liable for any damages on account of any injury to

a person or property caused by any act of the local agency or an

employee thereof or any other person.” 42 Pa. Cons. Stat. § 8541.

There are eight “acts” excepted from the immunity granted under

§ 8541, but none applies here. See 42 Pa. Cons. Stat. § 8542.18

18

Liability can be imposed for (1) the operation of a motor

vehicle in the possession or control of a local agency; (2) the care,

custody or control of personal property in the possession or control

of a local agency; (3) the care, custody or control of real property;

(4) a dangerous condition created by trees, traffic controls, or street

lights; (5) a dangerous condition of utility service facilities; (6) a

25

Municipal employees, including school district employees,

are generally immune from liability to the same extent as their

employing agency, so long as the act committed was within the

scope of the employee’s employment. 42 Pa. Cons. Stat. § 8545.

However, there is an exception to this general rule: Employees are

not immune from liability under § 8545 where their conduct

amounts to “actual malice” or “willful misconduct”:

In any action against a local agency or employee

thereof for damages on account of an injury caused

by the act of the employee in which it is judicially

determined that the act of the employee caused the

injury and that such act constituted a crime, actual

fraud, actual malice or willful misconduct, the

provisions of section[] 8545 . . . shall not apply.

42 Pa. Cons. Stat. § 8550 (emphasis added).

There are no allegations of actual malice here. And, as the

Pennsylvania Supreme Court has recognized, willful misconduct

is a demanding level of fault. Willful misconduct has been defined

by the Pennsylvania Supreme Court as “conduct whereby the actor

desired to bring about the result that followed or at least was aware

that it was substantially certain to follow, so that such desire can be

implied.” Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)

(citations omitted). Otherwise stated, “the term ‘willful

misconduct’ is synonymous with the term ‘intentional tort.’” Id.

(citation omitted); see also Bright, 443 F.3d at 287; Brown v.

Muhlenberg Twp., 269 F.3d 205, 214 (3d Cir. 2001). For the same

reasons stated earlier in this opinion, we do not believe that a

reasonable jury could conclude that Stiles engaged in “willful

misconduct.” Therefore, she is entitled to immunity under

Pennsylvania law.

VII. Conclusion

For the foregoing reasons, we believe that Sanford’s federal

and state claims must fail. She has failed to meet the necessary

dangerous condition of streets; (7) a dangerous condition of

sidewalks; (8) the care, custody or control of animals in the

possession or control of a local agency. 42 Pa. Cons. Stat. § 8542.

26

elements for a state-created danger claim under Third Circuit law.

Specifically, there is no genuine issue of material fact as to the

requisite level of culpability or as to whether Stiles or the East

Penn School District created or enhanced the danger that Michael

would commit suicide. Furthermore, Stiles is entitled to immunity

under Pennsylvania state law. We will therefore affirm.

27