Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2007

Jiminez v. Amer Rathskeller Inc
Precedential or Non-Precedential: Precedential

Docket No. 06-3670




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                  Case No: 06-3670

   GRACE JIMINEZ, as Administratrix of the Estate of
                      Salvador
       Peter Serrano; BROOKE E. MORGAN

                           v.

   ALL AMERICAN RATHSKELLER, INC. d/b/a The
                    Rathskeller Bar;
  BOROUGH OF STATE COLLEGE d/b/a State College
                     Police Dept.;
 PHYLLIS H. GENTZEL, d/b/a The Gentzel Corporation;
BLUEBIRD ENTERTAINMENT ENTERPRISE, d/b/a The
                         Dark
Horse; JASON ROSENGRANT; RYAN ROSENGRANT;
              CURTIS ROSENGRANT;
   COLIN HAUGHTON; ASSOCIATED PROPERTY
               MANAGEMENT, INC.,
     d/b/a Associated Realty Property Management


                         Grace Jiminez,
                               Appellant
      On Appeal from the United States District Court
           for the Middle District of Pennsylvania
               District Court No.: 04-cv-1897
      District Judge: The Honorable James F. McClure


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   September 19, 2007

 Before: SLOVITER, SMITH, and GARTH, Circuit Judges

                  (Filed: September 21, 2007 )

Louis A. Bove
Marc J. Syken
Bodell, Bove, Grace & Van Horn, P.C.
30 South 15th Street
One Penn Square West, 6th Fl., 30 S. 15th St.
Philadelphia, PA 19102
Counsel for Appellants

John Flounlacker, Esq.
Michele J. Thorp, Esq.
Thomas, Thomas & Hafer, LLP
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
Counsel for Appellee Borough of State College
       d/b/a State College Police Department

Joseph P. Green

                               2
Lee, Green & Reiter
115 East High Street
Lock Drawer 179
Bellefonte, PA 16823
Counsel for Appellee Phyllis H. Gentzel d/b/a/ Gentzel Corp.

Harvey Pasternack
Pasternack & associates
270 Walker Driver
Suite 101W
State College, PA 16801
Counsel for Appellee Bluebird Entertainment Enterprise
       d/b/a The Dark Horse



                          OPINION


SMITH, Circuit Judge.

       Salvador Peter Serrano died in the early hours of October
26, 2003. Serrano was a student at Pennsylvania State
University. Serrano was walking down an alleyway in the
Borough of State College near a bar known as the Rathskeller at
about 1:30 am with plaintiff Brooke Morgan, Timothy Padalino,
and Alison Bresnahan. Padalino stopped in a parking lot behind
the Rathskeller to urinate.

       At this point, accounts of the incident diverge. The

                               3
Plaintiffs allege that an altercation began when an unidentified
Rathskeller employee observed Padalino and violently forced
him to the ground. Jason and Chris Rosengrant, security
personnel employed at the Rathskeller, testified that they were
informed that a fight was under way in the parking lot. They
and several other Rathskeller employees confronted a group in
the parking lot that included Serrano, Morgan, Padalino, and
Bresnahan. The Rathskeller employees sought to restrain
members of the group. Chris Rosengrant pulled Serrano to the
ground.

       According to the Plaintiffs, both Rosengrants were
involved in throwing Serrano to the ground. They then held
Serrano down and restrained him while Jason Rosengrant
pressed his knee into Serrano’s back. According to the
Rosengrants, Jason approached to assist Chris and placed
Serrano’s hand behind his back.

       Officer Winkelbach of the Borough of State College
Police Department (“SCPD”) arrived on the scene while Jason
Rosengrant was on top of Serrano. Officer Winkelbach testified
that Rosengrant appeared to need assistance. Winkelbach began
to handcuff Serrano before realizing that he was unresponsive.

       Serrano was pronounced dead on arrival at the Centre
County Community Hospital. The parties do not dispute that
Serrano died of asphyxia. However, the cause has been hotly
contested. The Plaintiffs’ expert, Dr. Michael Baden, stated that


                               4
the Rosengrants’ weight caused Serrano’s death by positional
asphyxia. The Defendants’ expert, Dr. Gordon Carl Handte,
performed an autopsy on Serrano and testified at a related
criminal trial that he died from asphyxia by aspiration of
vomitus. Dr. Handte concluded that the death was accidental
and noted that substantial alcohol intoxication was a
contributing factor.

        The Plaintiffs Grace Jiminez, administratrix of Serrano’s
estate, and Morgan, Serrano’s fiancee at the time of his death,
filed complaints in United States District Court for the Middle
District of Pennsylvania on August 25, 2004, which they
amended twice. Morgan’s complaint was based on injuries she
allegedly suffered during the encounter. On September 27,
2005, the District Court granted a motion to dismiss by Bluebird
Entertainment Enterprise, d/b/a The Dark Horse. On May 2,
2006, the District Court granted the Plaintiffs’ unopposed
motion for settlement and dismissed all claims against Phyllis H.
Gentzel and Associated Property Management.

      On June 2, 2006, the District Court granted summary
judgment in favor of the Borough of State College (“State
College”) and the SCPD on all claims against them. On July 21,
2006, the District Court approved the Plaintiffs’ unopposed
motion for settlement with the remaining defendants and
dismissed all claims against them. The Plaintiffs timely
appealed.



                               5
       The District Court had jurisdiction over this case
pursuant to federal question jurisdiction, 28 U.S.C. § 1331, as
the Plaintiffs advance claims under 42 U.S.C. § 1983. This
Court has appellate jurisdiction under 28 U.S.C. § 1291. We
review a grant of summary judgment de novo, applying the
same standard that the District Court should have applied. P.N.
v. Clementon Bd. of Educ., 

, 852 (3d Cir. 2006).

        The Plaintiffs advance claims under theories of municipal
liability, pursuant to Monell v. New York City Department of
Social. Services., 

, 694 (1978), and of state-created
danger liability.

                                I.

        Under Monell, a municipality cannot be subjected to
liability solely because injuries were inflicted by its agents or
employees. See 

is when execution of a
government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury that the government as an
entity is responsible under § 1983.” 

be a “direct
causal link between a municipal policy or custom and the
alleged constitutional deprivation” to ground municipal liability.
City of Canton v. Harris, 

, 385 (1989). We have
previously observed that “[t]here are three situations where acts
of a government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom the


                                6
employee works, thereby rendering the entity liable under §
1983:”

      The first is where the appropriate officer or entity
      promulgates a generally applicable statement of
      policy and the subsequent act complained of is
      simply an implementation of that policy. The
      second occurs where no rule has been announced
      as policy but federal law has been violated by an
      act of the policymaker itself. Finally, a policy or
      custom may also exist where the policymaker has
      failed to act affirmatively at all, [though] the need
      to take some action to control the agents of the
      government is so obvious, and the inadequacy of
      existing practice so likely to result in the violation
      of constitutional rights, that the policymaker can
      reasonably be said to have been deliberately
      indifferent to the need.

Natale v. Camden County Corr. Facility, 

, 584 (3d
Cir. 2003) (internal quotation marks and citations omitted).

       We have also observed that a government policy or
custom can be established in two ways. See Andrews v. City of
Philadelphia, 

, 1480 (3d Cir. 1990). The
Plaintiffs may establish a government policy by showing that a
“decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action” issued an official
statement of policy. Pembaur v. City of Cincinnati, 

, 481 (1986). The Plaintiffs may establish that a course of

                                7
conduct constitutes a “custom” when, though not authorized by
law, “such practices of state officials [are] so permanent and
well settled” that they operate as law. 

.
In either instance, the Plaintiffs have the burden of showing that
a government policymaker is responsible by action or
acquiescence for the policy or custom. 

. We have also held that, at a minimum, the government
must act with deliberate indifference to the purported
constitutional deprivation in order to ground liability. San
Filippo v. Bongiovanni, 

, 445 (3d Cir. 1994).

        The Plaintiffs’ second amended complaint alleges that the
“SCPD engaged in a custom, practice, or policy of directing
employees of various liquor licensees in the Borough of State
College, including the Rathskeller, to detain and/or restrain
persons suspected by the liquor licensee to have violated the law
until such time as the SCPD could respond to the scene.” The
Plaintiffs allege a custom of essentially permitting the liquor
licensee employees to act as an “auxiliary police-force” by
handcuffing any person restrained by a liquor licensee security
employee while taking no action against any security employee
involved in the altercation. The complaint argues that this
conduct was taken in accordance with official SCPD policy or
was so well settled as to have the same practical effect. The
record documents a series of incidents involving liquor licensee
personnel that the Plaintiffs allege demonstrate this custom.

       With regard to the Plaintiffs’ Monell claim, the District


                                8
Court found that “[t]here is no competent evidence that indicates
the SCPD directed liquor licensee employees to detain or
restrain individuals until the police arrived to effect an arrest,”
and that “no reasonable jury could find from the evidence that
there was a custom of delegation [to the private security
personnel].”

        The owner of the Rathskeller, Duke Gastiger, testified in
a July 12, 2005 deposition that his employees restrained
individuals for defensive purposes only, and specifically denied
that they took actions to prevent persons from leaving the area
“so that the police could determine whether any laws ha[d] been
broken.” Gastiger was responsible for setting this policy of
defensive restraint and communicated it orally to his staff.
Gastiger testified that the SCPD has arrested some, but not all,
of the persons detained by Rathskeller employees. The
Plaintiffs produced evidence of a series of incidents, each of
which involved the person restrained by the liquor licensee
employee being handcuffed and removed from the scene by the
SCPD. Gastiger stated that he did not consult with anyone at the
SCPD regarding this detention policy and that no official from
the SCPD offered any training or direction to his employees.

        Jason Rosengrant testified that he was only permitted to
restrain individuals to prevent them from causing bodily harm,
and never for the purpose of detaining someone until the police
arrived. He also testified that the SCPD has never offered him
any instructions or training.


                                9
        The police officers deposed, including Chief of the SCPD
Thomas King, denied that there was a policy or custom of
encouraging or permitting security personnel to detain
individuals until the police could arrive. The deposition
testimony uniformly demonstrated that there was no written
policy and that no member of the SCPD has ever given any
instructions to Rathskeller employees. The sole exception was
that one Sergeant instructed Rathskeller employees to confiscate
false identification, but not to detain those carrying it. Several
SCPD officers testified that, if private security personnel
inquired about detention procedures, their policy was to refer the
inquiries to the employer’s private counsel or to the district
attorney.

        The sole piece of evidence at odds with the above
testimony is an affidavit submitted by Duke Gastiger on April
20, 2006. The affidavit stated that “members of the Rathskeller
staff had been asked on several occasions by the Borough Police
Department to hold people until the police got there,” and that,
“[t]he police were aware we, on occasion, restrained intoxicated
patrons until [the police] arrived.” The affidavit also stated that
“there was an occasion where Rathskeller staff were asked by
the Borough Police to assist in apprehending and restraining
individuals who were not on the Rathskeller’s property.”

       The District Court found that Gastiger’s affidavit was not
competent evidence because it contradicted his prior deposition
testimony. The Federal Rules of Civil Procedure do not


                                10
prescribe how courts should address contradictory subsequent
affidavits. However, we have held that “a party may not create
a material issue of fact to defeat summary judgment by filing an
affidavit disputing his or her own sworn testimony without
demonstrating a plausible explanation for the conflict.” Baer v.
Chase, 

, 624 (3d Cir. 2004) (citing Hackman v.
Valley Fair, 

, 241 (3d Cir. 1991)). This principle
of summary judgment practice is often referred to as the “sham
affidavit doctrine.” Although District Courts do not always
refer to the sham affidavit doctrine by name, its roots in the
federal courts can be traced at least as far back as the Second
Circuit’s decision in Perma Research & Development Co. v.
Singer Co., 

, 577-78 (2d Cir. 1969). Nevertheless,
the Plaintiffs assert that “[t]he sham affidavit doctrine utilized
by the Lower Court to discount the bar owner’s affidavit was
plainly in error.”

       The sham affidavit doctrine has created some
disagreements among federal and state courts. The principal
reason for these differences is that the Federal Rules do not
address the handling of contradictory affidavits in summary
judgment proceedings.       Rule 56 governs the limited
circumstances under which summary judgment is appropriate.1


       1
        Rule 56 provides that the “judgment sought shall be
rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any

                               11
The plain language of Rule 56 permits consideration of
affidavits in summary judgement proceedings. FED. R. CIV. P.
56(e). Indeed, the original version of Rule 56 empowered courts
to direct the appearance of affiant for examination, providing the
court with an opportunity to question the affiant about
contradictory testimony or affidavits. See Collin J. Cox, Note,
Reconsidering the Sham Affidavit Doctrine, 50 DUKE L.J. 261,
266 (2000). However, the current Rule clearly contemplates
that district courts will scrutinize affidavits, as it provides that,
“[s]hould it appear to the satisfaction of the court at any time
that any of the affidavits presented pursuant to this rule are
presented in bad faith or solely for the purpose of delay, the
court shall forthwith order” a variety of sanctions against the
offending party. FED. R. CIV. P. 56(g). Nevertheless, as the
Rule does not prescribe how the court should regard the
evidentiary value of contradictory affidavits, the sham affidavit
doctrine has grown from a long line of court decisions.

      The signal case remains Perma Research, in which the
Second Circuit held that a contradictory affidavit failed to raise
a genuine issue of material fact. Perma Research’s president,
Frank Perrino, had testified extensively in depositions that he
could not recall any instance in which the adverse party’s
employees had behaved 

.
However, Perrino submitted an affidavit during summary


material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c).

                                12
judgment proceedings stating that these same employees “never
had any intention” of performing their contract with Perma
Research. 

The Second Circuit observed that, “[i]f
there is any dispute as to the material facts, it is only because of
inconsistent statements made by Perrino the deponent and
Perrino the affiant,” and that, “[i]f a party who has been
examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior
testimony, this would greatly diminish the utility of summary
judgment as a procedure for screening out sham issues of fact.”

        Since Perma Research, every federal court of appeals has
adopted some form of the sham affidavit doctrine. See Darnell
v. Target Stores, 

, 176 (7th Cir. 1994); Colantuoni
v. Alfred Calcagni & Sons, Inc., 

, 4-5 (1st Cir. 1994);
Sinskey v. Pharmacia Ophthalmics, Inc., 

, 498
(Fed. Cir. 1992); Martin v. Merrell Dow Pharm., Inc., 

, 706 (3d Cir. 1988); Barwick v. Celotex Corp., 

, 960 (4th Cir. 1984); Reid v. Sears Roebuck and Co., 

, 460 (6th Cir. 1986); Franks v. Nimmo, 

, 1237 (10th Cir. 1986); Albertson v. T.J. Stevenson Co.,

, 228 (5th Cir. 1984); Van T. Junkins & Assocs. v.
U.S. Indus. Inc., 

, 657- 59 (11th Cir. 1984);
Camfield Tires, Inc. v. Michelin Tire Corp., 

,
1364-65 (8th Cir. 1983); Radobenko v. Automated Equip. Corp.,

, 544 (9th Cir. 1975).



                                13
        Although several state courts2 and a handful of
commentators3 have criticized the sham affidavit doctrine, we do
not doubt its continued vitality and importance. The Supreme
Court in Anderson v. Liberty Lobby laid down the axiom of
summary judgment practice that, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff.” 

, 252 (1986).
Some state courts have nevertheless likened the sham affidavit
doctrine to a determination of credibility or a weighing of the
evidence, both of which are impermissible at the summary
judgment stage. See, e.g., Webster v. Sill, 

, 1173
(Utah 1983). The Liberty Lobby Court recognized this
distinction, noting that “it is clear enough from our recent cases
that at the summary judgment stage the judge’s function is not
himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for

. It is use of the term “genuine issue,”


       2
       See, e.g., Polski v. Wilson, 

, 797 (Wis.
Ct. App. 1993); Webster v. Sill, 

, 1173 (Utah
1983).
       3
         See, e.g., Michael Holley, Making Credibility
Determinations at Summary Judgment: How Judges Broaden
Their Discretion While "Playing by the Rules," 20 Whittier L.
Rev. 865, 887-904 (1999) (arguing that the sham affidavit
doctrine empowers District Courts to make credibility
determinations and exercise “forbidden discretion”).

                                14
rather than any issue of fact, that implicitly demonstrates the
necessity of the sham affidavit doctrine as a means of sorting the
wheat from the chaff. In explaining its use of the term “genuine
issue” of fact, the Liberty Lobby Court buttressed the trial
judge’s role in sorting the genuine from the fallacious: “There
is no requirement that the trial judge make findings of fact. The
inquiry performed is the threshold inquiry of determining
whether there is the need for a trial–whether, in other words,
there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably
be resolved in favor of either party.” 

        It is this determination that permits trial judges to
disregard contradictory affidavits. A sham affidavit is a
contradictory affidavit that indicates only that the affiant cannot
maintain a consistent story or is willing to offer a statement
solely for the purpose of defeating summary judgment. A sham
affidavit cannot raise a genuine issue of fact because it is merely
a variance from earlier deposition testimony, and therefore no
reasonable jury could rely on it to find for the nonmovant. See

Liberty Lobby specifically recognizes the trial
judge’s power to grant summary judgment on disputed records.
See 

Therefore, if it is clear that an affidavit is offered
solely for the purpose of defeating summary judgment, it is
proper for the trial judge to conclude that no reasonable jury
could accord that affidavit evidentiary weight and that summary
judgment is appropriate.



                                 15
        The main practical reason supporting the sham affidavit
doctrine is that prior depositions are more reliable than
affidavits. The Second Circuit noted in Perma Research that
“[t]he deposition of a witness will usually be more reliable than
his affidavit, since the deponent was either cross-examined by
opposing counsel, or at least available to opposing counsel for

; see also 

(“Inherently depositions carry an increased level of
reliability. Depositions are adversarial in nature and provide the
opportunity for direct and cross-examination.”). Affidavits, on
the other hand, are usually drafted by counsel, whose familiarity
with summary judgment procedure may render an affidavit less
credible. See Russell v. Acme-Evans Co., 

, 67-68 (7th
Cir. 1995). (“We have been highly critical of efforts to patch up
a party’s deposition with his own subsequent affidavit. Almost
all affidavits submitted in litigation are drafted by the lawyers
rather than by the affiants and a comparison of the diction of
Russell’s deposition with that of the affidavit makes clear that
his affidavit is no exception.” (internal citations omitted)).

        Some federal courts have adopted a particularly robust
version of the sham affidavit doctrine, holding that, whenever a
subsequent affidavit contradicts prior deposition testimony, it
should be disregarded. See Buckner v. Sam’s Club, Inc., 

, 292-93 (7th Cir. 1996) (“The concern in litigation . . . is
that a party will first admit no knowledge of a fact but will later
come up with a specific recollection that would override the
earlier admission.”); Adams v. Greenwood, 

, 572


                                16
(8th Cir. 1993) (holding that “an affidavit denying what is
established by one’s own evidence . . . does not preclude
summary judgment”); Jones v. General Motors Corp., 

, 385 (6th Cir. 1991) (holding that “it is well settled that a
plaintiff may not create a factual issue for the purpose of
defeating a motion for summary judgment by filing an affidavit
contradicting a statement the plaintiff made in a prior
deposition”).

       However, this Court and other courts of appeals have
adopted a more flexible approach. See Baer v. Chase, 

, 624 (3d Cir. 2004), Hackman v. Valley Fair, 

,
241 (3d Cir. 1991), Martin v. Merrell Dow Pharm., Inc., 

, 705-706 (3d Cir. 1998); see also Kennedy v. Allied
Mut. Ins. Co., 

, 266-67 (9th Cir. 1991). We
observed in Baer that not all contradictory affidavits are
necessarily 

. Instead, we stated that,
“[w]hen there is independent evidence in the record to bolster an
otherwise questionable affidavit, courts generally have refused
to disregard the affidavit.” 

evidence
may establish that the affiant was “understandably” mistaken,
confused, or not in possession of all the facts during the
previous deposition. 

also held that an affiant has
the opportunity to offer a “satisfactory explanation” for the
conflict between the prior deposition and the affidavit.

. When a party does not explain the
contradiction between a subsequent affidavit and a prior
deposition, it is appropriate for the district court to disregard the


                                17
subsequent affidavit and the alleged factual issue in dispute as
a “sham,” therefore not creating an impediment to a grant of
summary judgment based on the deposition. See 

in question was offered by Duke Gastiger,
the owner of the Rathskeller and a co-defendant with the SCPD.
The Plaintiffs deposed Gastiger, eliciting clear testimony that
the Rathskeller’s restraint policy was in no way related to police
operations. When asked during his deposition whether the
police ever told him not to have a policy of restraint, Gastiger
responded that he “never had any conversation with the police
personally about restraint.” The SCPD introduced this
deposition as evidence. Gastiger’s subsequently filed affidavit
stated that unidentified SCPD officers asked Rathskeller
employees to detain individuals until they arrived. Gastiger’s
affidavit also claimed that, in one instance, Rathskeller
employees were asked to detain an individual not on Rathskeller
property. The District Court allowed that this affidavit was not
in direct contradiction to the earlier deposition–the bar’s policy
could have been in existence at the time the SCPD made these
requests–but that Gastiger’s affidavit was entirely unsupported
by the record and directly contrary to the testimony of every
SCPD officer deposed and that of Chris and Jason Rosengrant.
Moreover, since the Plaintiffs had ample time to further
investigate Gastiger’s eleventh-hour revelations,4 the fact that


       4
         Gastiger’s affidavit, dated April 20, 2006, was
submitted as an exhibit to Plaintiffs’ brief in opposition to the

                               18
the Plaintiffs–and more importantly, Gastiger–failed to identify
the specific Rathskeller employees and Borough police officers
who had these alleged conversations speaks volumes about the
veracity of Gastiger’s affidavit. The District Court also noted
that Gastiger’s interests were directly adverse to those of the
SCPD for purposes of the SCPD’s motion for summary
judgment, as resolution in favor of the SCPD would only expose
the Rathskeller to greater potential liability. The District Court
observed that Gastiger had offered no explanation for the
conflict.5

        No reasonable factfinder could conclude on this record
that an SCPD policymaker had created a policy or acquiesced to


motion for summary judgment on April 28, 2006. The district
court did not file its order until June 2 and its final judgment
until July 21, 2006.
       5
          Even if the affidavit were not deemed a sham, no
reasonable factfinder could have concluded on the basis of the
affidavit that anyone at the SCPD with policymaking authority
had annunciated a policy or acquiesced to a custom of
encouraging liquor licensee personnel to detain individuals until
the police could arrive. See McMillian v. Monroe County, Ala.,

, 785 (1997) (“A court’s task is to identify those
officials or governmental bodies who speak with final
policymaking authority for the local governmental actor
concerning the action alleged to have caused the particular
constitutional or statutory violation at issue.” (internal quotation
marks omitted)).

                                19
a custom of delegating law enforcement responsibilities to
liquor licensee personnel. Therefore, the Plaintiffs’ attempt to
claim municipal liability under Monell was properly dismissed
on summary judgment.

                               II.

       The Plaintiffs also claim that the Borough of State
College is liable under a theory of state-created danger.
DeShaney v. Winnebago County Dep’t. of Soc. Srvcs., 

, 196 (1989).

        There is no affirmative right to governmental aid or
protection under the Due Process Clause of the Fourteenth
Amendment. See 

however, two exceptions to this
rule: the “special relationship” exception and the “state-created
danger” exception. The state-created danger exception owes its
contemporary origins to the DeShaney Court’s statement that
“while the State may have been aware of the dangers that [the
plaintiff] 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.” 

       This Court considered the necessary elements of a state-
created danger claim in Bright v. Westmoreland County, 

(3d Cir. 2006). The Bright Court held that a plaintiff
must establish four elements to make out a claim of state-created
danger liability:


                               20
       (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.

(internal citations and quotes omitted).

        The Plaintiffs state that they “adopt” Judge
Nygaard’s dissenting opinion in Bright that no
affirmative act is required to ground state-created danger
liability. In the alternative to this argument, which
implicitly urges us to ignore our own precedent, the
Plaintiffs contend that the SCPD’s “look the other way”
practice constituted an affirmative act sufficient to satisfy
the state-created danger test. As discussed above, the
Plaintiffs have not produced any evidence on which a

                                21
reasonable factfinder could conclude that an SCPD
policymaker announced a policy or deliberately
acquiesced to a custom of delegating law enforcement
power to liquor licensee personnel. The Plaintiffs have
presented evidence of a series of events in which SCPD
officers, upon arriving at the scene of a confrontation
between individuals and liquor licensee personnel,
handcuffed the individuals while taking no direct action
against the bar employees. Even if this course of conduct
could be taken to establish an affirmative act, we are
skeptical that it could satisfy either the causation or mens
rea elements of the state-created danger test. See 

(holding that “the harm ultimately caused was
foreseeable and fairly direct,” and that “a state actor
acted with a degree of culpability that shocks the
conscience”).

       The District Court properly dismissed the
Plaintiffs’ state-created danger claims on summary
judgment. We will affirm the District Court’s judgment.




                                22