NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 21-2111

____________

ANDREY VOROBYEV, as Admin. to the Estate of Ivan Vorobyev, deceased,

Appellant

v.

BLOOMSBURG UNIVERSITY OF PENNSYLVANIA; COMMONWEALTH OF 

PENNSYLVANIA, c/o: Office of the Attorney General; LAURA WOLFE, MSN,

CRNP; JOHN DOE AND JANE ROE # 1-10, Bloomsburg University

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

(D.C. No. 3-20-cv-01384)

Magistrate Judge: Hon. Martin C. Carlson

____________

Submitted Under Third Circuit LAR 34.1(a)

April 28, 2022

Before: HARDIMAN, RENDELL, and FISHER, Circuit Judges.

(Filed: May 12, 2022)

____________

OPINION*

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

HARDIMAN, Circuit Judge.

This tragic case arises out of the untimely death of Bloomsburg University student 

Ivan Vorobyev due to complications from diabetes. Ivan’s father, Andrey, on behalf of 

Ivan’s estate, sued one of the University’s nurses who cared for Ivan just before his 

death. We agree with the District Court1that Andrey failed to state a claim under 42 

U.S.C. § 1983, but we will remand so that Andrey can amend his complaint, unless the 

District Court determines that amendment would be futile.

I

2

Ivan was diagnosed with Type 1 diabetes as a child, and he notified the University 

of his condition on multiple occasions. His University medical file included a letter from 

his endocrinologist and a nurse practitioner describing Ivan’s severe diabetes and 

warning that “[s]ustained high blood sugar levels may affect concentration and if 

untreated, can lead to nausea and vomiting and more serious complications such as 

ketosis and[,] if left untreated[,] life threatening diabetic ketoacidosis.” App. 138.

In November 2018, Ivan suffered a severe episode of nausea, vomiting, abdominal 

pain, and high blood sugar. He called the Student Health Center to report his symptoms.

Nurse Laura Wolfe treated Ivan when he arrived for his appointment later that day. She 

knew about Ivan’s diabetes and treatment plan as well as the letter from his 

1 Magistrate Judge Martin Carlson presided by consent under 28 U.S.C. § 636(c).

2

“On appeal from a dismissal, we take the allegations in [the plaintiff’s] complaint as 

true,” Mears v. Connolly, 24 F.4th 880, 882 (3d Cir. 2022), so we recount the facts as 

pleaded in the complaint.
3

endocrinologist. She also knew that Ivan exhibited symptoms of complications from 

diabetes, and she documented his extremely high blood sugar levels. Despite knowing 

that these complications could be lethal if left untreated, Nurse Wolfe diagnosed Ivan 

with “nausea with vomiting, unspecified,” prescribed him medication for the nausea, and 

sent him back to his dorm until his father could take him home. App. 118 ¶ 36. Ivan went 

home with his father, where his blood sugar continued to rise until he collapsed and 

suffered cardiac arrest. Ivan was taken by ambulance to the hospital, where he died the 

next day. His cause of death was “cardiac arrest from hypovolemia, severe diabetic 

ketoacidosis, cerebral edema, and brain death.” App. 119 ¶ 43.

Ivan’s father, Andrey, brought federal and state claims against the University, the 

Commonwealth of Pennsylvania, Nurse Wolfe (in her official and personal capacities), 

and unidentified parties associated with the Student Health Center. Andrey gave up his 

claims against the University, the Commonwealth, and Wolfe in her official capacity. 

Vorobyev v. Bloomsburg Univ. of Pa., 541 F. Supp. 3d 524, 529 (M.D. Pa. 2021). The 

anonymous parties have never been identified. Accordingly, Andrey’s only remaining 

federal claim is against Wolfe in her personal capacity under § 1983. Id. The District 

Court concluded that Andrey failed to state a viable federal claim and dismissed the 

complaint “without prejudice to the litigation of the plaintiff’s state law tort claims in 

state court.” App. 82; see Vorobyev, 541 F. Supp. 3d at 529. This appeal followed.
4

II3

Andrey sued Nurse Wolfe on a state-created danger theory. This type of 

substantive due process claim requires Andrey to show: 

(1) the harm ultimately caused to [Ivan] was foreseeable and fairly direct; 

(2) [Nurse Wolfe] acted in willful disregard for [Ivan’s] safety; 

(3) there was some relationship between the state and [Ivan]; and

(4) [Nurse Wolfe] used [her] authority to create an opportunity for danger 

that otherwise would not have existed.

Phillips v. Cnty. of Allegheny, 515 F.3d 224, 235 (3d Cir. 2008) (cleaned up). We 

focus on the fourth requirement. To satisfy that element, there must be an 

allegation “that state authority was affirmatively exercised in some fashion.” Id. at 

236. Inaction or omission will not do. Id. The District Court dismissed Andrey’s 

complaint because his “state-created danger claim is based on Wolfe’s inaction, 

rather than any affirmative conduct.” Vorobyev, 541 F. Supp. 3d at 534–35. We 

agree.

The complaint purports to allege 11 affirmative acts by Nurse Wolfe. We 

first note that 8 of those allegations are framed in terms of what Wolfe “failed” to 

do, not affirmative acts she actually took. App. 123–24 ¶ 60(b)–(g), (i), (k).

Another alleges that she “[d]elayed Ivan Vorobyev’s examination and/or treatment 

3 The District Court had jurisdiction under 28 U.S.C. §§ 636(c)(1), 1331, 1343(a)(4), 

1367(a). We have jurisdiction under 28 U.S.C. §§ 636(c)(3), 1291. “We exercise plenary 

review over a district court’s grant of a motion to dismiss pursuant to Federal Rule of 

Civil Procedure 12(b)(6).” Talley v. Wetzel, 15 F.4th 275, 286 n.7 (3d Cir. 2021).
5

by an appropriate specialist.” App. 123 ¶ 60(h). To show that Wolfe affirmatively 

delayed Ivan’s treatment, Andrey would have to allege “a restraint of personal 

liberty that is similar to incarceration or institutionalization.” Mears v. Connolly, 

24 F.4th 880, 884 (3d Cir. 2022) (cleaned up); see also Ye v. United States, 484 

F.3d 634, 641 (3d Cir. 2007) (“[A] ‘deprivation of liberty’ is a bedrock 

requirement of state liability under the substantive due process clause.”). But there 

is no allegation that Wolfe affirmatively acted to prevent Ivan from seeing a 

specialist, much less that she restrained him from doing so. At worst, she

misdiagnosed his symptoms, and that’s the crux of the remaining two allegations: 

she “[i]ncorrectly diagnosed I[v]an . . . and sent him back to his dormitory,” and 

she “[i]mproperly assessed the medical condition of Ivan.” App. 123 ¶ 60(a), (j).

But even actions which “could, and almost certainly do, give rise to a state law 

medical malpractice claim” do not constitute a state-created danger unless they 

also constitute a deprivation of liberty. Ye, 484 F.3d at 642.

In Ye, a doctor assured an ailing patient that “there is nothing to worry 

about.” Id. at 635. The patient’s family relied on the doctor’s assurance and did 

not take the patient to the emergency room. Id. Later the same day, the family 

found the patient unconscious, and he was rushed to the hospital. Id. The patient 

received emergency bypass surgery, was hospitalized for more than a month, and 

required a ventilator after his release. Id. Despite expert testimony that the doctor’s 

conduct was “unconscionable,” id. at 636, we held that the doctor’s assurances 

were not affirmative acts sufficient to make out a state-created danger claim. Id. at 
6

642. Such claims “must be predicated on an affirmative act that works a 

deprivation of liberty,” id. at 641, and the doctor did not deprive the patient of his 

liberty, id. at 643. If an affirmative assurance of well-being cannot constitute a 

deprivation, then misdiagnosis—the conduct at issue here—cannot either. 

Andrey resists this conclusion, arguing that Wolfe committed an 

affirmative act by releasing Ivan back to his dorm. He cites three cases to establish 

that release constitutes an affirmative act, but none of them help his argument. The 

first is Kneipp v. Tedder, 95 F.3d 1199 (3d Cir. 1996), where the police stopped a 

visibly drunk couple walking home. Id. at 1201. The police let the husband go 

home first, then left the intoxicated wife to find her own way home in the cold, 

which she never did. Id. at 1202–03. The wife suffered hypothermia that resulted 

in permanent brain damage. Id. at 1203. We held those facts sufficient to make out 

a state-created danger claim. Id. at 1211. The police affirmatively acted to remove 

the husband, “who presumably would have sheltered [the wife] from peril,” 

Johnson v. City of Phila., 975 F.3d 394, 399 (3d Cir. 2020) (citation omitted), 

thereby making her “more vulnerable to danger [than] had they not intervened,” 

Kneipp, 95 F.3d at 1209. Thus, in Kneipp, the affirmative act was the release of a 

would-be protector. Here, Wolfe released Ivan, not a would-be protector, so

Kneipp is no help to Andrey.

The second case—L.R. v. School District of Philadelphia, 836 F.3d 235 (3d 

Cir. 2016)—occurred in the unique setting of a kindergarten classroom. There, we 

held that a teacher who sent a kindergartner home with a child molester without 
7

checking identification “affirmative[ly] misuse[d] . . . his authority as [the 

student’s] teacher and ‘gatekeeper.’” Id. at 244. The kindergarten teacher was 

“responsible for the safety of very young children” in his care; “hand[ing] over 

[that] responsibility to a private actor who, under the circumstances, posed an 

obvious risk of harm” was “an affirmative misuse” of his state-granted authority. 

Id. Wolfe had no comparable responsibility for Ivan, and she did not hand him 

over to a private actor who posed an obvious risk of harm.

In the third case—Mann v. Palmerton Area Sch. Dist., 872 F.3d 165 (3d 

Cir. 2017)— the affirmative act was compulsion, not release. In Mann, a football 

coach “requir[ed a player] to continue to practice after sustaining” a big hit. Id. at 

168. We stressed that the coach affirmatively “required [the student] to be exposed 

to a risk of harm by continuing to practice.” Id. at 172. The affirmative act was the 

coach’s use of his compulsive authority, not a mere release. Nurse Wolfe did not 

compel Andrey to do anything; according to the complaint, she misdiagnosed him 

and released him to his dorm.

We thus agree with the District Court that the complaint did not allege a 

valid state-created danger claim.

III

Though the District Court properly dismissed Andrey’s state-created danger 

claim against Wolfe, it abused its discretion when it failed to grant Andrey leave 

to amend his complaint. See United States ex rel. Schumann v. AstraZeneca 

Pharms. L.P., 769 F.3d 837, 849 (3d Cir. 2014). “[I]n the event a complaint fails 
8

to state a claim, unless amendment would be futile, the District Court must give a 

plaintiff the opportunity to amend [his] complaint.” Phillips, 515 F.3d at 228 

(citation omitted). Despite Andrey’s request to amend his complaint, the District 

Court did not grant leave to amend. The Court instead “dismissed without 

prejudice to the litigation of the plaintiff’s state law tort claims in state court.” 

App. 82. But because it did not engage in a futility analysis, the Court should have 

also granted leave to amend the complaint to substantiate the state-created danger 

claim. See Phillips, 515 F.3d at 228. Accordingly, we will remand the case so 

Andrey can amend his complaint, unless the District Court determines that 

amendment would be futile.

***

For the reasons stated, we will vacate the District Court’s order and remand the 

case for further proceedings consistent with this opinion.
Andrey Vorobyev, as administrator to the Estate of Ivan Vorobyev, deceased v. 

Bloomsburg University, Commonwealth of Pennsylvania, Laura Wolfe, MSN, CRNP

No. 21-2111

______________________________________________________

RENDELL, Circuit Judge, concurring in the judgment

I agree that the case should be remanded so that Andrey Vorobyev can have the 

opportunity to amend his complaint. But I do not view the facts alleged as so clearly 

lacking such that they fail to establish the prima facie element of an “affirmative act.” 

The majority urges that our opinion in Ye v. United States, 484 F.3d 634 (3d Cir. 

2007), is relevant and that it supports the conclusion that “[i]f an affirmative assurance of 

well-being cannot constitute a deprivation, then misdiagnosis—the conduct at issue 

here—cannot either.” Maj. Op., Section II. I disagree. The issue in Ye was “whether a 

mere assurance can be an affirmative act.” 484 F.3d at 635 (emphasis added). The Court 

held that it cannot. Id. The Court did not confront, as we do here, whether an actual 

misdiagnosis can constitute an affirmative act for purposes of a state-created danger 

claim, and this remains an open question. 

Moreover, the nurse here not only made an actual diagnosis that was wrong,

1

she 

prescribed medication for the wrong condition, “[r]efused” to refer her student and 

1 She affirmatively misdiagnosed him as suffering from acute “nausea with vomiting, 

unspecified.” App. 117. Far from being unspecified nausea and vomiting, his high blood 

sugar, nausea, and vomiting were clearly associated with his Type I diabetes. A letter in 

his student medical file from the Yale Medicine Pediatric Endocrinology and Diabetes 

Clinic regarding his condition warned that this combination of symptoms, if left 

untreated, could lead to “life threatening diabetic ketoacidosis” and “significantly 

increase the risk of heart attacks and strokes.” App. 138. 
2

patient to a specialist, App. 123, and “sent” the eighteen-year-old under her care back to 

his school dormitory without medical supervision, App. 118. Could the District Court on 

remand conclude that prescribing her patient the wrong medication, refusing to refer him 

to a specialist, declining to keep him for observation until his father arrived, and sending 

him to his dormitory where he would not be monitored or cared for by a medical 

professional, constituted one or more “affirmative acts” that made him “more vulnerable 

to danger” and, thereby, deprived him of liberty? Ye, 484 F.3d at 638 (citing Bright v. 

Westmoreland Cnty., 443 F.3d 276 (3d Cir. 2006)). I think so.

Like the wife in Kneipp, who was at the mercy of the police who released her in a 

state of intoxication into a winter night without assistance, the student here was at the 

mercy of the university’s nurse who sent him to his dormitory in a state of diabetic 

emergency without assistance. Kneipp v. Tedder, 95 F.3d 1199, 1202 (3d Cir. 1996). 

Plaintiff deserves the opportunity to replead and support his case.