                                                                                                                           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Precedential or Non-Precedential: Precedential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).
