                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 09-2838


                          GRACE MARVEL, Individually and
                       as Executrix for the Estate of David Marvel,

                                                       Appellant

                                            v.

                COUNTY OF DELAWARE, WALTER R. OMLOR, JR.;
                           and PAUL M. MICUN,




                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 2-07-cv-05054)
                         District Judge: Ronald L. Buckwalter


                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 12, 2010

       Before: AMBRO and CHAGARES, Circuit Judges, and JONES,* District Judge

                            (Opinion filed : October 14, 2010)


                                        OPINION




   *
    The Honorable John E. Jones, III, United States District Judge for the Middle District
of Pennsylvania, sitting by designation.
JONES, District Judge

       Appellant Grace Marvel (“Mrs. Marvel”), acting as executrix of the Estate of her

husband, David Marvel (“Mr. Marvel”), appeals an order of the United States District

Court of the Eastern District of Pennsylvania granting summary judgment in favor of

Appellees County of Delaware (“Delaware County”), Walter R. Omlor, Jr. (“Omlor”) and

Paul M. Micun (“Micun”), in this civil rights action arising out of Mr. Marvel’s death on

August 1, 2006 while he was performing court-ordered community service at the

Delaware County Emergency Training Center. We will affirm the District Court’s order.

                                             I.

       After being arrested on DUI-related charges in Ridley Creek State Park on May

10, 2006, 59-year old Mr. Marvel, in consultation with counsel, applied for and was

accepted into Delaware County’s fast-track accelerated rehabilitation disposition

(“ARD”) program.1 Participation in the ARD program is totally voluntary, and all

community service workers are advised in advance that they will engage in manual labor.

Individuals in the program select their own dates of service, but must have their service

completed within sixty days of their administrative hearing. If an individual were to

advise that he or she had a medical concern, the office would require him to deliver

medical documentation noting his restrictions, which could trigger another more suitable




   1
    ARD is a program for first-time offenders that, upon successful completion, allows
the underlying criminal charges to be dismissed.

                                             2
assignment.

       In late July 2006, Mr. Marvel contacted Omlor, the director of the Delaware

County Community Services Department, and selected July 31 and August 1, 2006 as the

dates that he would perform the 16 hours of community service work he was required to

complete. Mr. Marvel informed Omlor that he was employed as a crane operator. Omlor

did not ask about nor did Mr. Marvel volunteer any information about his medical history.

Omlor told Mr. Marvel to report at 7:30 a.m. on the first date, dressed for the weather,

wearing work gloves and prepared to perform labor.

       For multiple years prior to the time period in question, Mr. Marvel had been

treated for high blood pressure by his family physician. During the summer of 2006 he

was taking cardiac medication to both control his blood pressure and lower his

cholesterol, and took a daily aspirin as well. According to Mrs. Marvel, however, he had

never experienced any direct problems with his heart.

       The weather on July 31 and August 1, 2006 was extremely hot. In fact, the

National Weather Service issued an Excessive Heat Warning for Delaware County for

those dates, as the heat index values reached 110. Upon reporting, Mr. Marvel spoke

with Micun, the Community Service Supervisor. According to Micun, after all the

workers were checked in, he asked if anyone had construction experience since there

were union bricklayers on site that needed assistance. Four volunteers stepped forward,

including Mr. Marvel, who indicated that he worked on a crane in Philadelphia. Mr.



                                             3
Marvel stated to Micun that he volunteered to do construction because he had experience

in that area, and preferred to stay on site rather than going out to pick up trash.

       On July 31, 2006, Mr. Marvel spent his day passing cinder blocks from a palette on

scaffolding that was twenty feet high to the union workers who were laying the blocks.

He did so in a partially shaded area, and he and his co-workers were provided a five-

gallon jug filled with ice water, which was sufficient to last through the day. They were

also given several breaks throughout the day, as needed. Mr. Marvel completed the first

day of the ARD service work without incident. At home that evening, he told his wife

that his shoulders were very sore, that he was exhausted, and further complained about

having to wear a scarf over his face due to all the dust. He did not, however, express any

concern about returning to the same work the next day.

       On August 1, 2006, Mr. Marvel reported for duty and again volunteered to do the

same work he had done the previous day. Approximately three hours into the day, one of

Mr. Marvel’s fellow laborers noticed that he did not want water, was not looking well,

and seemed flushed. Shortly thereafter, Mr. Marvel collapsed. Micun began performing

CPR on Mr. Marvel and asked the other men to wipe Mr. Marvel’s chest. One of the

fellow laborers called his wife, a nurse, who advised them to put ice under Mr. Marvel’s

armpits and an ice water-soaked shirt around his neck. Micun called an individual in the

office and asked him to call 911 and to notify the EMTs that CPR was in progress. The

police and paramedics arrived after four to five cycles of CPR had been performed and



                                               4
within approximately five to ten minutes after Mr. Marvel collapsed. The paramedics

inserted an air tube down Mr. Marvel’s throat and hooked him up to a heart monitor. Mr.

Marvel had a heartbeat and was breathing when he was placed on the ambulance and

taken to the hospital. Unfortunately, within fifteen minutes Micun and the others were

informed that Mr. Marvel had been declared dead on arrival at the hospital.

       Dr. Rosen, the emergency room physician, concluded that Mr. Marvel died from a

heart attack that was not heat-related. Subsequently, the Delaware County Medical

Examiner, Dr. Hellman, called Mrs. Marvel and indicated that he was comfortable with

the treating physician’s determination that the cause of Mr. Marvel’s death was cardiac-

related and that it occurred with exertion. An autopsy of Mr. Marvel revealed that his left

anterior artery was ninety-five percent closed and his right anterior artery was ninety

percent closed. The autopsy report indicated that Mr. Marvel’s death occurred as a

consequence of arteriosclerotic coronary artery disease, with history of hypertension,

association with exertion. There was no finding of any heat-related causes.

                                             II.

       Mrs. Marvel, individually and as the executrix for the estate of her husband,

initiated this action on November 30, 2007. Both Counts of the Complaint assert

constitutional claims under 42 U.S.C. § 1983. Count I alleges that Omlor and Micum,

acting under color of state authority, deprived Mr. Marvel of his constitutional rights

under the Fourteenth Amendment, including his liberty interests in: (1) bodily safety



                                             5
while performing community service; (2) freedom from deprivation of life without due

process of law; and (3) an expectation of minimal standards for the safety, health, well-

being and security of community service workers. Count II alleges that Delaware County

violated Mr. Marvel’s rights under the Fourth, Fifth, Eighth, and Fourteenth Amendments

by failing to develop or implement policies or procedures regarding the medical screening

of ARD applicants or community service workers; failing to abide by the excess heat

warning; failing to give consideration to the extreme weather conditions or a worker’s

age; failing to provide adequate medical assistance to Mr. Marvel; and failing to properly

train, supervise, and monitor Mr. Marvel during his community service.

       The District Court denied the appellees’ motion to dismiss under Federal Rule of

Civil Procedure 12(b)(6) on April 10, 2008. Thereafter, by Memorandum and Order

dated June 3, 2009, the District Court granted the appellees’ motion for summary

judgment. Mrs. Marvel appeals this ruling.

                                             III.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291 and exercise plenary

review over a district court’s decision to grant summary judgment. Summary judgment is

appropriate when “the pleadings, the discovery, and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any material fact and that the movant

is entitled to judgment as a matter of law.” F.R.C.P. 56( c). If there is no genuine issue

as to any material fact and the moving party is entitled to judgment as a matter of law, we



                                              6
affirm the District Court’s ruling.

                                             IV.

       Section 1983, the premise of both counts of Mrs. Marvel’s Complaint, “is not a

source of substantive rights” but merely provides “a method for vindicating federal rights

elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n. 3 (1979). To state a

cause of action under section 1983, a plaintiff must demonstrate both that (1) the

defendants acted under color of state law; and (2) their actions deprived the plaintiff of

rights secured by the Constitution or federal statutes. Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49-50 (1999). The parties do not dispute that the appellees were acting

under color of state law; thus the analysis turns on whether their actions deprived Mr.

Marvel of his constitutional rights.

       Count I of the Complaint is based on a state-created danger theory. To establish a

state-created danger claim, the following essential elements must be met: “(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



                                              7
v. Westmoreland County, 443 F.3d 276, 281 (3d Cir. 2006)(citations omitted).

       The first element of the state-created danger test requires that the harm ultimately

caused was a foreseeable and fairly direct result of the state’s actions. See Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 908 (3d Cir. 1997). While the District Court

concluded that a reasonable jury could find harm to Mr. Marvel foreseeable based on the

combination of the excessive heat on August 1, 2006 and Mr. Marvel’s age (59 years

old), we are not so persuaded. Absent any indication that Mr. Marvel suffered from any

pre-existing health condition, and indeed no such indication was obvious, we cannot find

it foreseeable that Marvel might be harmed by performing labor in the conditions on

August 1, 2006.2

       The second element requires that the state actor acted with a degree of culpability

that “shocks the conscience.” Bright, 443 F.3d at 281. In making this determination, the

district court must look to the facts of each individual case to determine whether the state

actor’s conduct is indeed conscience shocking. See Sanford v. Stiles, 456 F.3d 298, 309-

10 (3d Cir. 2006). As aforestated, the day of Mr. Marvel’s death was extremely hot;

however, it cannot be concluded that the weather itself foreclosed labor in total. Further,



   2
    Dreadful as the facts are, it is well to note that Mr. Marvel’s participation in the
program was entirely voluntary. His election to engage in heavy labor placed some
responsibility upon Mr. Marvel to know his own limitations and disclose them to Micun.
Moreover, it appears that not even Mr. Marvel knew that his pre-existing conditions were
so grave that he was virtually a cardiac accident waiting to happen. Thus, even if Micun
had asked Mr. Marvel about any limitations, it is highly unlikely that Mr. Marvel would
have responded affirmatively.

                                             8
and to reiterate, despite the weather and at least some limited knowledge of his own

medications and condition, Mr. Marvel volunteered for construction work not only on the

first day, but returned on the second day as well. As noted, the appellees never had any

knowledge of Mr. Marvel’s medications and medical treatment. They thus cannot be

considered to have ignored a known risk to Mr. Marvel, nor could it be expected that they

should have prevented Marvel from volunteering for construction labor that day. Based

on the foregoing, we simply cannot find that the appellees’ conduct shocked the

conscience. Thus, Mrs. Marvel’s claim fails on this element.

       Mrs. Marvel is also unable to establish the third and final element of the state-

created danger test. Under this element, a plaintiff must show that “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,

443 F.3d at 281. A state actor’s failure to act does not satisfy this element. Id. at 282.

Further, a plaintiff must establish a direct causal relationship between the affirmative act

and the plaintiff’s harm. Id. at 281.

       It is evident, based on our review of the record, that Mrs. Marvel has not

identified any affirmative action on the part of the appellees that harmed him or exposed

Mr. Marvel to danger. Not only did Mr. Marvel volunteer generally for the ARD

program, but as noted he also volunteered specifically for his dates of service and the type

of labor he undertook while completing his community service time. As noted, a failure



                                              9
to act will not suffice to establish a section 1983 violation. But even if it did, Mrs.

Marvel seeks to impose upon appellees what in effect would be a comprehensive medical

screening protocol for anyone who elects to participate in community service related to

the ARD program. Clearly this is an intensive and cost-prohibitive step that would defeat

the purpose of offering this type of fast-track ARD opportunity to offenders.

                                              V.

       Count II of Mrs. Marvel’s Complaint asserts that the Defendant County of

Delaware violated constitutional rights in various way. However, all of these claims fail

based on Delaware County’s immunity pursuant to Monell v. Dept. of Soc. Serv., 436 U.S.

658 (1978). Under the dictates of Monell, a municipality cannot be held liable under §

1983 on a respondeat superior theory. Id. at 690-691. To hold municipalities liable

under § 1983, a plaintiff must identify either a “policy, statement, ordinance regulation or

decision officially adopted and promulgated by that body’s officers,” or “constitutional

deprivations visited pursuant to governmental ‘custom’ even though such custom has not

received formal approval through the body’s official decision making channels.” Id.

Additionally, there must be a showing of causation. A plaintiff “must show that the

municipal action was taken with the requisite degree of culpability and must demonstrate

a direct causal link between the municipal action and the deprivation of federal rights.”

Bd. of the County of Comm’rs of Bryan County v. Brown, 520 U.S. 397, 404 (1997).

       There is little that we can add to the District Court’s comprehensive opinion on



                                              10
this point; therefore we shall only endeavor to summarize it herein. None of the grounds

for Mrs. Marvel’s claims against the County of Delaware is viable under Monell. First,

several of her claims pertain to actions by the County of Delaware that occurred after Mr.

Marvel’s death, which obviously cannot be attributed to an alleged deprivation of Mr.

Marvel’s constitutional rights. Next, Mrs. Marvel has failed to establish that there were

any ‘customs’ or ‘policies’ of the Delaware County ARD program that caused a

deprivation of Mr. Marvel’s federal rights, such as requiring workers to labor in direct

sunlight or failing to give them water. Finally and significantly, Mrs. Marvel has failed to

establish that a pattern of violations existed such to alert the County of a need to establish

a policy to prevent a deprivation of rights.

                                               VI.

       For all of the foregoing reasons, we find that the appellees were entitled to

summary judgment on both claims asserted by Mrs. Marvel. Her husband’s death was

manifestly a tragic occurrence, but not one for which the appellees are liable.

Accordingly, we will affirm the order of the District Court.




                                               11
