Zi Z. Ye v. United States

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

4-30-2007

Ye v. USA

Precedential or Non-Precedential: Precedential

Docket No. 06-1034

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 06-1034

ZI Z. YE;

YU ZHEN CAO, H/W

v.

UNITED STATES OF AMERICA;

U.S. DEPARTMENT OF JUSTICE;

DISTRICT HEALTH CENTER NO. 10;

CITY HOUSE CLINIC GROUP;

IKJIN KIM, M.D.

Ikjin Kim, M.D.,

Appellant

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

District Court No.: 04-cv-00951

District Judge: The Honorable James T. Giles

Argued on February 13, 2007

Before: SMITH and FISHER, Circuit Judges,

and DIAMOND, District Judge*

(Filed April 30, 2007)

Jane Lovitch Istvan (argued)

City of Philadelphia Law Department

One Parkway, 17th Floor

1515 Arch Street

Philadelphia, PA 19102-1595

Counsel for Appellants

Harold I. Goodman, Esquire (argued)

Gerald A. McHugh Jr., Esquire

Stephen E. Raynes, Esquire

Dan Bencivenga, Esquire

Raynes McCarty

1845 Walnut Street, 20th Floor

Philadelphia, PA 19103

Counsel for Appellees

OPINION OF THE COURT

*

The Honorable Gustave Diamond, Senior District Judge

for the Western District of Pennsylvania, sitting by designation.

2

SMITH, Circuit Judge.

The Supreme Court held in DeShaney v. Winnebago

County Department of Social Services, 489 U.S. 189 (1989),

that, “[i]n the substantive due process analysis, it is the State’s

affirmative act of restraining the individual’s freedom to act on

his own behalf–through incarceration, institutionalization, or

other similar restraint of personal liberty–which is the

‘deprivation of liberty’ triggering the protections of the Due

Process Clause.” Id. at 200. The crux of the case before us is

whether a mere assurance can be an affirmative act–a “restraint

of personal liberty” similar to incarceration or

institutionalization. Id. We hold that it cannot. Therefore, the

plaintiff cannot proceed under the ‘state-created danger’ theory

of liability derived from the Supreme Court’s decision in

DeShaney, and we will reverse the District Court’s denial of

summary judgment. To do otherwise would take the state-

created danger doctrine beyond its precedential and

constitutional origins.

I. Background

The facts of this case present a tragic story. Zi Z. Ye

visited Dr. Ikjin Kim six times, from February 6, 2001 to March

5, 2002, at Philadelphia’s District Health Care Center No. 10.

Dr. Kim diagnosed Ye with hypertension, coronary artery

disease, and angina. He prescribed a combination of sublingual

3

nitroglycerine, Procardia, and Lipitor. Ye and his son, Ken Ye,

visited Dr. Kim’s office on March 5, 2002. Ye, through his son,

complained of shortness of breath, coughing, and discomfort in

his upper body area. Ken Ye later testified that Dr. Kim told Ye

that “there is nothing to worry about and that he is fine.” Dr.

Kim gave Ye a prescription for cough medication and told him

to return in three months. Ye had visited his prior physician, Dr.

Bao-Kuen Tuan on February 21, 2002.

Ken Ye visited his father at home later that day and found

him unconscious. Ye was taken to Frankfort Hospital in an

ambulance. Doctors at the hospital determined that Ye was

suffering from congestive heart failure and had experienced a

myocardial infarction. Ye received emergency bypass surgery.

He nevertheless suffered respiratory failure and polyneuropathy,

a degenerative nerve condition. Ye was hospitalized for a

month and then transferred to a skilled nursing care center. He

has since been hospitalized for acute care several times and

remains on a ventilator.

Ken Ye testified that his family did not seek emergency

medical assistance for Ye after leaving Dr. Kim’s office because

they “rel[ied] upon Dr. Kim’s assurances to us that there was

nothing to worry about and that my father was fine.” Ken Ye

also stated that, “[i]f on March 5, 2002, Dr. Kim had not assured

us that my father was fine and that there was nothing wrong, I

would have immediately taken my father to the emergency

room.”

4

Both experts presented by Ye described Dr. Kim’s

conduct as “a professional outrage,” and “unconscionable.”

They agreed that Dr. Kim should have obtained complete

cardiac workups in light of Ye’s risk factors and prior history of

coronary artery disease. They also testified that Dr. Kim should

have immediately hospitalized Ye for emergency medical care

upon observing bilateral pitting edema, or swelling. They

further concurred that Ye’s later complications would have been

avoided by immediate emergency medical care.

Ye filed a variety of claims against Dr. Kim and his

employers (including the United States of America), including

a claim under 42 U.S.C. § 1983, in the Eastern District of

Pennsylvania on March 3, 2004. Ye and the United States of

America subsequently stipulated to the dismissal of the United

States and the U.S. Department of Justice as parties. Dr. Kim

and the remaining defendants filed for summary judgment on

October 21, 2005. During summary judgment proceedings, Ye

abandoned all claims except his state-created danger claim

under § 1983. Dr. Kim argued that he had committed no

constitutional tort and raised the affirmative defense of qualified

immunity, as he was acting in his capacity as a doctor at District

Health Care Center No. 10. The District Court granted

summary judgment for Dr. Kim’s remaining employers due to

a lack of causation. However, the District Court denied Dr.

Kim’s motion, holding that a reasonable jury could conclude

that the elements of a state-created danger were met and that

qualified immunity was not available.

5

We have jurisdiction over this appeal of an interlocutory

order as a “denial of qualified immunity that turns on an issue of

law–rather than a factual dispute–is appealable as a collateral

order under 28 U.S.C. § 1291.” Doe v. Groody, 362 F.3d 232,

237 (3d Cir. 2004). The District Court had jurisdiction over the

claim made pursuant to 42 U.S.C. § 1983 under 28 U.S.C. §

1331. We review the grant or denial of summary judgment de

novo. See Union Pacific R.R. v. Greentree Trans. Trucking Co.,

293 F.3d 120 (3d Cir. 2002). In considering a motion for

summary judgment, the court must draw all reasonable

inferences in the manner most favorable to the non-moving

party. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

II. Discussion

There is no affirmative right to governmental aid or

protection under the Due Process Clause of the Fourteenth

Amendment. DeShaney, 489 U.S. at 196. The Due Process

Clause of the Fourteenth Amendment provides that “[n]o State

shall . . . deprive any person of life, liberty, or property, without

due process of law.” U.S. CONST. AMEND. XIV. Nothing in the

language of the Due Process Clause itself requires the State to

protect its citizens’ life, liberty, or property from private harms.

See DeShaney, 489 U.S. 189 at 195. The Due Process Clause

prevents the Government from abusing its power or using it as

an instrument of oppression. Davidson v. Cannon, 474 U.S.

344, 348 (1986). The Supreme Court has long recognized that

the Constitution generally confers no affirmative right to

governmental aid, “even where such aid may be necessary to

6

secure life, liberty, or property interests of which the

government itself may not deprive the individual.” DeShaney,

489 U.S. 189 at 196; see, e.g., Harris v. McRae, 448 U.S. 297,

317-318 (1980) (holding that the State has no obligation to fund

abortions or other medical services); Lindsey v. Normet, 405

U.S. 56, 74 (1972) (holding that the state has no obligation to

provide adequate housing). The Constitution protects people

from the government, not from each other or from themselves.

There are, however, two exceptions to this rule: the

“special relationship” exception1 and the “state-created danger”

exception. Ye argues that Dr. Kim is liable for his mistaken

assurances under the state-created danger theory of liability.

The state-created danger exception originates from the

DeShaney Court’s statement that “while the State may have

been aware of the dangers that Joshua faced in the free world, it

played no part in their creation, nor did it do anything to render

1

This Court “has read DeShaney primarily as setting out

a test of physical custody” for purposes of determining whether

there is a “special relationship” between the state and the

plaintiff. D.R. v. Middlebucks Area Vocational Tech. Sch., 972

F.2d 1364, 1370 (3d Cir. 1992) (en banc) (holding that no

special relationship exists between state and school children

despite compulsory attendance laws). Because Ye neither pled

nor adduced proof of a “special relationship,” that exception is

not at issue here.

7

him any more vulnerable to them.” DeShaney, 489 U.S. at 201.

Many courts have explained the state-created danger exception

by echoing Judge Posner’s pre-DeShaney comments in Bowers

v. DeVito, 686 F.2d 616 (7th Cir. 1982). Judge Posner described

the Constitution as “a charter of negative liberties,” which “tells

the state to let people alone,” and does not prescribe affirmative

duties “to provide services, even so elementary a service as

maintaining law and order.” Id. at 618. However, even with

this view, he conceded that a different result obtains where the

state crosses the line from inaction to action:

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.

Id.

The Third Circuit first allowed a claim under the

“state-created danger” theory of liability in Kneipp v. Tedder, 95

F.3d 1199 (3d Cir. 1996). Quoting DeShaney, the Kneipp Court

concluded that when the harm incurred is a direct result of state

action, liability can attach under § 1983. We have refined the

Kneipp test in subsequent cases. See Rivas v. City of Passaic,

8

365 F.3d 181, 202-03 (3d Cir. 2004) (Ambro, J. concurring)

(noting the changes and stating that “[i]n light of these

substantial modifications to the Kneipp test, Kneipp as shorthand

is a misnomer”). Notably, the test no longer requires that a

crime be committed by a third-party. As Judge Ambro noted in

his concurrence in Rivas: “The fourth element’s reference to a

‘third party’s crime’ arises from the doctrine’s origin as an

exception to the general rule that the state does not have a

general affirmative obligation to protect its citizens from the

violent acts of private individuals. The courts, however, have

not limited the doctrine to cases where third parties caused the

harm.” Id. at 202 (internal quotation omitted); see also Estate

of Smith v. Marasco (Smith I), 318 F.3d 497 (3d Cir. 2003).

This Court considered the necessary elements of a state-

created danger in Bright v. Westmoreland County, 443 F.3d 276

(3d Cir. 2006). The Bright panel considered Kneipp and its

progeny and clarified the four part state-created danger test. It

instructed that the four elements are:

(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

9

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.

Id. at 281 (internal citations and quotation marks omitted). The

majority noted that the addition of the word “affirmatively” to

the fourth element was not an innovation–but merely a

recognition that both DeShaney and this Court’s precedents

explicitly required an affirmative act, rather than inaction. Id.

at 282 (citing D.R. v. Middlebucks Area Vocational Tech. Sch,

972 F.2d 1364, 1374 (3d Cir. 1992) (en banc) (“Liability under

the state-created danger theory is predicated upon the state’s

affirmative acts which work to the plaintiff’s detriment in terms

of exposure to danger.”); Brown v. Grabowski, 922 F.2d 1097,

1100-01 (3d Cir. 1990) (noting that DeShaney holds “that a

state’s failure to take affirmative action to protect a victim from

the actions of a third party will not, in the absence of a custodial

relationship . . . support a civil rights claim”).

The first question in determining whether Dr. Kim should

receive the protection of qualified immunity is whether he

violated Ye’s constitutional rights—in this case, whether his

10

actions constituted a violation of the substantive component of

the Due Process Clause via the state-created danger exception.

See Saucier v. Katz, 533 U.S. 194, 201 (2001). Dr. Kim

concedes that the first three elements of a state-created danger

claim are satisfied.2 The Bright panel noted that the fourth

2

This concession may have been precipitous with regard

to the “shocks the conscious” element of the test. When a state

actor is in a high-pressure situation in which rapid decision-

making is required, such as a high-speed car chase, the required

mens rea will typically be intent-to-harm. Estate of Smith v.

Marasco (Smith II), 430 F.3d 140, 153 (3d Cir. 2005).

However, where a state actor has the time to act deliberately and

is not under pressure to make split-second decisions, gross

negligence may be sufficient. See Miller v. City of Philadelphia,

174 F.3d 368, 375 (3d Cir.1999).

This Court gave ample consideration to the contours of

the “shocks the conscience” standard in Rivas v. City of Passaic.

365 F.3d at 196. The facts of Rivas are discussed infra. The

Rivas Court held that emergency medical technicians had to act

“with some urgency,” and therefore “the Rivas family can only

meet the second element of the Kneipp test by presenting

evidence that Garcia's and Rodriguez’s conduct shocks the

conscience by consciously disregarding a substantial risk that

Mr. Rivas would be seriously harmed by their actions.” Id. Put

simply, the Court required gross recklessness.

The extended discussion in Rivas does not dictate the

necessary mens rea in this case, but it does inform us that the

required culpability must be somewhere within the bounds of

11

element can be broken down into its parts and analyzed

accordingly. Bright, 443 F.3d at 281 n.5; see also Laura Oren,

Safari into the Snake Pit: The State Created Danger Doctrine,

13 WM. & MARY BILL RTS. J. 1165, 1187 (2005). The three

necessary conditions to satisfy the fourth element of a state-

created danger claim are that: (1) a state actor exercised his or

her authority, (2) the state actor took an affirmative action, and

(3) 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.

Bright, 443 F.3d at 281-82.

1. Did a state actor exercise his or her authority?

We have never squarely considered the meaning of the

term “authority” within the context of the state-created danger

doctrine. Nevertheless, Dr. Kim urges us to give definition to

this section of the fourth Bright element in an effort to bar Ye’s

gross negligence, at a minimum, and gross recklessness, at a

maximum. Though there are certainly pressures and time

constraints in a public clinic, we cannot say that they are equal,

or indeed close, to EMTs responding to an emergency call for a

seizure victim. Therefore, recklessness or gross negligence is

the mens rea necessary to satisfy the “shocks the conscious”

element in the case before us. However, we need not decide that

issue, as Dr. Kim conceded that Ye had adduced sufficient

evidence, much of it unrebutted, that Dr. Kim’s conduct

constituted recklessness.

12

claim.

Dr. Kim argues that dicta from this Court’s decision in

Mark v. Borough of Hatboro, 51 F.3d 1137, 1153 (3d Cir.

1995), dictates that a plaintiff can make out a state-created

danger claim only where a state actor has exercised power that

is uniquely within the province of the state. The Mark Court

observed that “[t]he cases where the state-created danger theory

was applied were based on discrete, grossly reckless acts

committed by the state or state actors using their peculiar

positions as state actors.” Id. (emphasis added). However, this

language was mere dicta and was applied to a volunteer

firefighter who had committed arson, thus acting well outside

the scope of his authority. Nevertheless, Dr. Kim argues that

because the power he exercised, the ability to give medical

advice or to serve as a doctor, was not unique to state actors, this

component of the state-created danger claim cannot be satisfied.

This Court has never imposed such a requirement on

state-created danger claims. Although we cited Mark

extensively in Bright for its discussion of the fourth element of

a state-created danger claim, we made no reference to a

requirement that the affirmative action be one that is solely

within the province of the state. See Bright, 443 F.3d at 282-84.

This Court’s decision in Rivas v. City of Passaic, 365 F.3d 181

(3d Cir. 2004), counsels even more strongly against imposing

such a requirement. In Rivas, emergency medical technicians

(“EMTs”) were summoned to assist a man apparently

experiencing an epileptic seizure. Id. at 185. The EMTs

13

summoned police to the scene, indicated that Rivas had attacked

them, but did not inform them that they believed him to be

epileptic. Id. They also did not communicate their knowledge

that placing Rivas in restraints could be fatal. Id. at 186. Rivas

died of asphyxiation. Id. at 187-88. His representatives brought

a § 1983 action under the state-created danger theory of liability.

Id. at 189. The Rivas Court dealt with the fourth element of a

state created danger claim in a single paragraph, focusing

entirely on whether a reasonable fact-finder could conclude that

the EMTs had increased Rivas’s exposure to harm. Id. at 197.

Indeed, it is difficult to ascertain how Ye’s theory of the

“authority” requirement comports with our decision in Rivas.

365 F.3d 186-89. The coercive and custodial functions at issue

in most state-created danger cases are powers only the state may

legitimately exercise. However, the EMTs’ critical affirmative

act was to call the police–an action that any private citizen can

legitimately take. Dr. Kim’s attempts to distinguish Rivas by

arguing that emergency medical care is uniquely within the

province of the state. However, much of the country’s

emergency medical services are now provided by private

companies.3 Even if we were to conclude that emergency

3

American Medical Response is the country’s largest

private provider of emergency medical services and has a near

monopoly in many suburban areas. See www.amr.net (“AMR

is locally operated in 36 states and the District of Columbia.

More than 18,000 AMR paramedics, EMTs and other

professionals, with a fleet of 4,400 vehicles, transport nearly

14

medical care were traditionally the province of the state, that

argument would apply with equal force to medical care for the

indigent.

However, there is no indication in our jurisprudence or in

its Supreme Court antecedents that there exists an independent

requirement that the “authority” exercised must be peculiarly

within the province of the state. The “authority” language is

simply a reflection of the “state actor” requirement for all §

1983 claims.

2. Did the state actor take an affirmative action?

Dr. Kim argues that an assurance or misrepresentation,

without more, cannot constitute an “affirmative” act for

purposes of the state-created danger inquiry. This Court has

never expressly addressed this issue. We hold that a mere

assurance cannot form the basis of a state-created danger claim.

This Court rejected a similar claim in Bright. 443 F.3d

at 284. A police officer “assured Bright approximately three

weeks before Annette’s death that Koschalk would be arrested

and in reliance upon these assurances, Bright failed to take

defensive actions, such as leaving the area with his family,

hence creating the opportunity for the damages ultimately

four million patients nationwide each year in critical, emergency

and non-emergency situations.”).

15

sustained.” Id. (internal quotes omitted). The Bright Court

stated that, even assuming this account of causation was

accurate, “[s]tate-created danger liability cannot be predicated

on these facts.” Id. We concluded that, “Bright does not, and

cannot, claim that the state in any way restricted his freedom to

act on his family’s own behalf,” and invoked the DeShaney

Court’s holding that, “under these circumstances, no

“affirmative duty to protect arises . . . from the State’s . . .

expressions of intent to help.” Id. (citing DeShaney, 489 U.S. at

200) (internal quotes omitted). The police officer’s assurance

that someone would be arrested, an action then not taken, could

not constitute an affirmative action.

The Bright decision reflects the concerns that animated

the Supreme Court’s decision in DeShaney. The Court observed

that the “Due Process Clause of the Fourteenth Amendment was

intended to prevent government from abusing [its] power, or

employing it as an instrument of oppression.” 489 U.S. at 196

(citing Davidson v. Cannon, 474 U.S. 344, 348 (1986)) (internal

quotes omitted); see also Parratt v. Taylor, 451 U.S. 527, 549

(1981) (Powell, J., concurring in result) (“It would make no

sense to open the federal courts to lawsuits where there has been

no affirmative abuse of power.”). Speaking of the “special

relationship exception,” the DeShaney Court stated that the

“affirmative duty to protect arises not from the State’s

knowledge of the individual’s predicament or from its

expressions of intent to help him, but from the limitation which

it has imposed on his freedom to act.” 489 U.S. at 200. The

Court further observed that, “[i]n the substantive due process

16

analysis, it is the State’s affirmative act of restraining the

individual’s freedom to act on his own behalf–through

incarceration, institutionalization, or other similar restraint of

personal liberty–which is the ‘deprivation of liberty’ triggering

the protections of the Due Process Clause.” Id.

We applied this injunction by the DeShaney Court that

the substantive component of the Due Process Clause must be

predicated on an affirmative act that works a deprivation of

liberty when we observed in Bright that state-created danger

liability could not lie because the state did not “restrict[] his

freedom to act on his [] own behalf.” 443 F.3d at 284.

Although the DeShaney Court did not hold that words alone

could not rise to the level of affirmative act that works a

deprivation of liberty, the Supreme Court did provide two

examples, incarceration and institutionalization, to guide our

analysis. Ye cannot prevail unless Dr. Kim’s misrepresentation

that Ye had “nothing to worry about and that he [was] fine” falls

into the third category of a “restraint of personal liberty” that is

“similar” to incarceration or institutionalization. DeShaney did

not conclusively answer this question, nor was the Court

focused on state-created liability, giving much greater

consideration to circumstances that would give rise to the

special relationship exception. However, the Court made clear

that a ‘deprivation of liberty’ is a bedrock requirement of state

liability under the substantive due process clause. Ye’s claim

places before us the question of whether a mere assurance can

constitute an affirmative act that invaded Ye’s personal liberty.

We implicitly rejected this argument in Bright and do so

17

expressly now.4

DeShaney’s factual basis strongly suggests that mere

assurances do not fall into the Court’s third category of ‘other’

restraints of personal liberty. In DeShaney, the Winnebago

County Department of Social Services (“DSS”) became aware

through repeated incidents that a young boy named Joshua

DeShaney was very likely receiving severe beatings from his

father. 489 U.S. at 192. However, DSS did not remove the

child, and he was later beaten to the point of severe brain

damage. Id. The Court noted that DSS “specifically

proclaimed, by word and by deed, its intention to protect

[DeShaney] against that danger.” Id. at 197. However, the

Court did not characterize these expressions of intent to

help–these assurances–as an affirmative action, stating rather

that the “most that can be said of the state functionaries in this

case is that they stood by and did nothing.” Id. at 203. The

dissent highlighted this point, lamenting that “to the Court, the

only fact that seems to count as an affirmative act of restraining

the individual’s freedom to act on his own behalf is direct

physical control.” Id. at 206 (Brennan, J., dissenting). This is

not a wholly accurate reflection of the Court’s holding, which

turned on the fact that, “[w]hile the State may have been aware

4

The act that invades a plaintiff’s personal liberty may

not always be a restraint, as in the special-relationship context,

but that is the nature of Ye’s complaint. Accordingly, the

instructions of the DeShaney Court and our holding in Bright are

particularly applicable.

18

of the dangers that Joshua faced in the free world, it played no

part in their creation, nor did it do anything to render him any

more vulnerable to them.” Id. at 201. Nevertheless, the

language of both the majority and the dissent leave little doubt

that an animating principle of the majority’s decision was that

an assurance, in this case an expression of intent to help, is not

an affirmative act sufficient to trigger constitutional obligations.

Other courts of appeals have echoed this principle. In

Rivera v. Rhode Island, the state allegedly promised to protect

Jennifer Rivera in exchange for her testimony against Charles

Pona, who was under indictment for murder. 402 F.3d 27, 30

(1st Cir. 2005). The state took no action and Rivera was shot

and killed in front of her home. Id. The First Circuit held that

“the state’s promises, whether false or merely unkept, did not

deprive Jennifer of the liberty to act on her own behalf nor did

the state force Jennifer, against her will, to become dependent

on it,” and therefore could not support a state-created danger

claim. Id. at 38. The First Circuit acknowledged that the

assurances by the police may have increased Rivera’s exposure

to harm, but reasoned that mere assurances could not constitute

deprivations of liberty—a necessary component to any state-

created danger claim. Id. (“Merely alleging state actions which

render the individual more vulnerable to harm, under a theory of

state created danger, cannot be used as an end run around

DeShaney’s core holding.”).

The Eleventh Circuit took a similar approach in Wyke v.

Polk County Board of Education, 129 F.3d 560 (11th Cir. 1997).

19

Shawn Wyke attempted suicide on school property and was

prevented by a fellow student who related the incident to his

mother. Id. at 564. The concerned mother who called the

school was assured by the Dean of Students that “he would take

care of it.” Id. The Dean did no more than read some Bible

verses to Wyke, who committed suicide shortly thereafter. Id.

The concerned mother testified that had she not been falsely

assured that the problem would be dealt with by the Dean, she

would have called Wyke’s mother directly. Id. at 570. The

Court stated that the Dean “did not, either by verbal or physical

act, restrain [the concerned mother] from picking up her

telephone,” and therefore the Dean’s assurance could not

support a state-created danger claim. Id.

Dr. Kim’s assurances could, and almost certainly do, give

rise to a state law medical malpractice claim. They cannot,

however, constitute a deprivation of liberty within the meaning

of DeShaney or Bright. DeShaney and Bright do not totally

foreclose the possibility that words could constitute an

affirmative act and a deprivation of liberty (such as an assault).

However, these precedents make clear that assurances of well-

being are not “affirmative” acts within the meaning of the fourth

element of a state-created danger claim.

20

3. Did this act create a danger to the citizen or render

the citizen more vulnerable to danger than if the state

had not acted at all?

Dr. Kim argues that Ye’s allegations, which must be

taken as true for purposes of this appeal, do not establish that he

made Ye more vulnerable to harm than if he had never acted.

In Bright, this Court held that, if the other elements of a

state-created danger claim are met, the state must have

“rendered the citizen more vulnerable to danger than had the

state not acted at all.” 443 F.3d at 281; see also D.R., 972 F.2d

at 1373 (noting that the relevant inquiry is “whether the state

actors involved affirmatively acted to create plaintiff’s danger,

or to render him or her more vulnerable to it”). We have often

adopted the language of “but for” causation when describing this

last requirement of state-created danger liability. See Rivas, 365

F.3d at 197 (noting that the state-created danger test asks

“whether the state actor used his or her authority to create an

opportunity, which otherwise would not have existed, for the

specific harm to occur,” and that, “[w]ere it not for [the state’s]

acts,” no harm would have occurred); Kneipp, 95 F.3d at 1209

(observing that the jury could conclude that the officers’ conduct

was the “but for” cause of the injury, and that their conduct

“greatly increased” the likelihood of harm). We noted in

Kaucher v. County of Bucks that, “[t]here must be a direct causal

relationship between the affirmative act of the state and

plaintiff’s harm.” 455 F.3d 418, 432 (3d Cir. 2006) (citing

Smith, 318 F.3d at 510 (holding the fourth element asks if “but

21

for the defendants’ actions, the plaintiff would have been in a

less harmful position”)).

Ye’s allegations, which must be taken as accurate, state

that, but for Dr. Kim’s assurances, he and his son would have

gone to the emergency room. Ye’s expert testimony established

a likelihood that, had they done so, the substantial harms that

followed would have been avoided. 5 This is

5

Dr. Charles Faselis, an expert witness for Ye, testified

that:

Mr. Ye has permanent and devastating

complications which could have been avoided if

he had only received the necessary and required

cardiac work up and the immediate, emergency

hospitalization required. . . . Mr. Ye’s critical

care polyneuropathy and current condition is a

direct result of Dr. Tuan and Dr. Kim’s failure to

obtain the required cardiac work up, and failure to

hospitalize him before his collapse and need for

emergency resuscitation and bypass surgery.

Dr. S.J. Schneller, also an expert witness for Ye, testified

that:

It is my opinion, to a reasonable degree of

medical certainty, that it was well below the

standard of care for Mr. Ye’s physicians, Dr.

22

Tuan and Dr. Kim, to fail to refer him to a

cardiologist and to fail to provide necessary

medical treatment for his life-threatening

condition and to disregard the known risks and

that such wrongful conduct significantly increased

the risk of harm to Mr. Ye and in fact caused his

injuries.

***

It is my opinion, to a reasonable degree of

medical certainty that, had Mr. Ye been referred

to a cardiologist and timely hospitalized, the

patient’s hypertension, hypercholesterolemia, and

angina pectoris would have been effectively

treated and that the risk of heart attack, heart

failure, pulmonary edema, near respiratory arrest

would have been significantly reduced. It is my

opinion that, had Mr. Ye been referred to a

cardiologist in a timely fashion, the risk that he

would have required emergency intubation,

emergency mechanical ventilation, emergency

cardiac catheterization, emergency insertion of an

intra-aortic balloon pump and emergency

coronary artery surgery would have been

significantly reduced.

***

[Ye’s] problems, including the critical care

neuropathy and its sequella, are directly related to

the severity of the patient’s presenting condition

23

sufficient to satisfy “but for” causation, which is the standard in

this Circuit.

III. Conclusion

Dr. Kim committed no constitutional tort.6 Dr. Kim did

not deprive Ye of his liberty, and therefore did not violate the

substantive component of the Due Process Clause. We will

reverse the District Court’s denial of summary judgment for Dr.

Kim, as no facts have been alleged that could support state-

created danger liability.

which itself is a direct consequence of the failure

of Mr. Ye’s treating physicians to refer him to a

cardiologist for appropriate management of his

heart disease and hospitalization as the standard

of care required.

6

As there was no constitutional tort, we need not reach

the question of whether the law was clearly established at the

time of Dr. Kim’s assurance to Ye for qualified immunity

purposes. See Saucier v. Katz, 533 U.S. 194, 200 (2001).