484 F.3d 634 (3rd Cir. 2007), 06-1034, Ye v. United States

Docket Nº:06-1034.
Citation:484 F.3d 634
Party Name: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.
Case Date:April 30, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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484 F.3d 634 (3rd Cir. 2007)

Zi Z. YE; Yu Zhen Cao, h/w


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.

No. 06-1034.

United States Court of Appeals, Third Circuit.

April 30, 2007

Argued on Feb. 13, 2007.

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Jane Lovitch Istvan, (argued), City of Philadelphia Law Department, Philadelphia, PA, for Appellants.

Harold I. Goodman, (argued), Gerald A. McHugh Jr., Esquire, Stephen E. Raynes, Dan Bencivenga, Raynes McCarty, Philadelphia, PA, for Appellees.

Before SMITH and FISHER, Circuit Judges, and DIAMOND, District Judge. [*]

SMITH, Circuit Judge.

The Supreme Court held in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (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, 109 S.Ct. 998. 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 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."

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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.

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, 361 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 109 S.Ct. 998. 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, 109 S.Ct. 998, 103 L.Ed.2d 249. 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, 106 S.Ct. 668, 88 L.Ed.2d 677 (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 secure life, liberty, or property interests of which the government itself may not deprive the individual." DeShaney, 489 U.S. 189 at 196, 109 S.Ct. 998, 103 L.Ed.2d 249; see, e.g., Harris v. McRae, 448 U.S. 297, 317-318, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980) (holding that the State has no obligation to fund abortions or other medical services); Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972)

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(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" exception 1 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 him any more vulnerable to them." DeShaney, 489 U.S. at 201, 109 S.Ct. 998. 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...

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