Sherelle Thomas v. City of Harrisburg

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 21-2963, 21-2964 & 21-3018

____________

SHERELLE THOMAS, Administrator of the Estate of

Terelle Thomas; T. T., a minor, individually, as child of

decedent Terelle Thomas and as his sole survivor

v.

CITY OF HARRISBURG; OFFICER DARIL FOOSE;

OFFICER SCOTT JOHNSEN; OFFICER ADRIENNE

SALAZAR; TRAVIS BANNING; OFFICER BRIAN

CARRIERE; HARRISBURG CITY POLICE DEPT JOHN

DOE POLICE OFFICERS 1-5; DAUPHIN COUNTY

ADULT PROBATION JOHN DOE SUPERVISORY

OFFICERS 1-5; DAUPHIN COUNTY PRISON JOHN DOE

PRISON OFFICIALS 1-5; DAN KINSINGER; DAUPHIN

COUNTY; PRIMECARE MEDICAL INC; PRIMECARE

JOHN DOES MEDICAL EMPLOYEES 1-5,

Appellants

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-20-cv-01178)

District Judge: Honorable Yvette Kane

Argued on January 11, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Opinion filed December 6, 2023)

Sheryl L. Brown (ARGUED)

Siana Law

941 Pottstown Pike

Suite 200

Chester Springs, PA 19425

Counsel for Appellants Officer Daril Foose,

Officer Brian Carriere

Frederick B. Buck (ARGUED)

Rawle & Henderson

1500 Market Street

19th Floor, Centre Square West

Philadelphia, PA 19102

Counsel for Appellants Officer Scott Johnsen,

Officer Adrienne Salazar and Travis Banning

2

Kimberly A. Boyer-Cohen (ARGUED)

Marshall Dennehey Warner Coleman & Goggin

2000 Market Street

Suite 2300

Philadelphia, PA 19103

Counsel for Appellant Dan Kinsinger

Kevin V. Mincey

Riley H. Ross, III (ARGUED)

Mincey Fitzpatrick Ross

1650 Market Street

36th Floor

Philadelphia, PA 19103

Counsel for Appellees

O P I N I ON

ROTH, Circuit Judge:

Sherelle Thomas1 sued the City of Harrisburg;

PrimeCare Medical, Inc.; and several individual law

enforcement officers (the Officers) on behalf of her decedent

1

The plaintiffs are Sherelle Thomas as the Administrator of the

Estate of Terelle Thomas and Terelle Thomas’s minor child.

For convenience, we will speak of the plaintiffs/appellees in

the singular as Sherelle Thomas.

3

relative, alleging that defendants failed both to render medical

care and to intervene to prevent a violation of the right to

medical care. The Officers moved to dismiss on grounds of

qualified immunity. The District Court denied the motion.

The court rejected the Officers’ claims of qualified immunity

because it found that Sherelle Thomas alleged sufficient facts

to state her claims and both rights were clearly established at

the time of the violations. The Officers appealed, limited to

the issue of qualified immunity. Because the District Court

correctly denied the Officers’ claim of qualified immunity

regarding their failure to render medical care claim, we will

affirm on that issue. We conclude, however, that the District

Court ruled incorrectly when it recognized a claim of failure to

intervene. Because neither our Court nor the Supreme Court

have recognized the right to intervene in the context of the

rendering of medical care, qualified immunity for the Officers

on this claim is appropriate and we will remand this claim to

the District Court with instructions to dismiss it as to the

Officers.

I. BACKGROUND

A. Factual Background

Sherelle Thomas, Administrator of the Estate of Terelle

Thomas, alleged the following: On December 14, 2019,

Harrisburg Police Officer Daril Foose was partnered with

Adult Probation Officer Dan Kinsinger. At approximately

6:15 p.m., Foose observed Terrelle Thomas (Thomas) and

another man walk from a bar and enter a vehicle as passengers.

Foose followed the vehicle and made a traffic stop. Foose then

noted that Thomas “spoke to her as if he had ‘cotton mouth’

4

and a large amount of an unknown item inside his mouth.”2

She also observed “strands in his mouth that were almost like

gum and paste,” that his lips were “pasty white,” and that his

“face was covered with a white powdery substance.”3 She

believed that Thomas had ingested something and was

concealing it in his mouth.4 As a result, Probation Officer

Kinsinger detained Thomas, during which time Thomas “spit

out a white liquid.”5 Officer Foose then concluded that

Thomas had “ingested a large amount of cocaine.”6 However,

Thomas told Officer Foose “that the only drugs on his person

was a small amount of marijuana and that his lips were white

because he had consumed a candy cigarette.”7 Officer Foose

quickly concluded this was a lie because she “observed cocaine

rocks fall out of . . . Thomas’s shirt . . . and she failed to find

any candy cigarettes.”8

During Thomas’s detention, four additional officers

(Corporal Scott Johnsen and Officers Adrienne Salazar, Travis

Banning, and Brian Carriere) arrived at the scene. Probation

2

Appx. 071.

3

Appx. 071.

4

See Appx. 102 (Officer Foose stated that Thomas spit out “a

white liquid that resembled crack cocaine attempted (sic) to be

swallowed” and that “Thomas’s mouth indicted (sic) to me that

he had ingested a large amount of cocaine.”).

5

Appx. 071.

6

Appx. 071.

7

Appx. 072.

8

Appx. 072. The Officers found additional crack cocaine

rocks in the car where he had been sitting, as well as a digital

scale with cocaine residue on it and a clear plastic baggie with

marijuana inside it.

5

Officer Kinsinger and Officer Foose informed each officer that

they believed that Thomas had ingested cocaine. Officer

Salazar independently arrived at the same conclusion after

observing a white powdery substance covering Thomas’s lips,

and informed Thomas that ingesting cocaine could have an “ill

effect” on Thomas’s health.9 Corporal Johnsen

“acknowledged the seriousness of ingesting cocaine by

warning . . . Thomas that he could possibly die from ingesting

drugs.”10 Officer Banning also observed a “large amount of

white residue around and on . . . Thomas’ lips,” and did not

find any evidence of candy cigarettes.11 Based on their

observations, the Officers filed police reports indicating

Thomas’s cocaine ingestion, and Officer Foose prepared and

signed an Affidavit of Probable Cause noting that she had

observed Thomas consume “crack cocaine in order to conceal

it from police.”12

The Officers jointly determined that Thomas should be

transferred to Dauphin County Booking Center at the Dauphin

County Prison for detention and processing. Dauphin County

contracts with PrimeCare to provide limited medical care to

individuals at Dauphin County Prison. PrimeCare does not

have hospital features such as x-ray or CT machines but instead

transfers individuals to a nearby hospital for testing and

treatment. In addition, Harrisburg Police Department policy

dictates that officers take arrestees to the hospital if the

arrestees have “consumed illegal narcotics in a way that could

9

Appx. 072–73.

10

Appx. 072.

11

Appx. 073.

12

Appx. 115.

6

jeopardize their health and welfare.”13 Despite this policy and

the observations noted above, the Officers did not take Thomas

to the hospital. Instead, Officer Carriere arrested Thomas and

transported him to Dauphin County Booking Center. En route,

Thomas told Officer Carriere that he was hot despite an

outdoor temperature of 46 degrees.14 Officer Carriere opened

the window.

Upon arrival at the Dauphin County Booking Center,

Officer Carriere informed prison officials and medical staff

there that Thomas “may have swallowed crack cocaine.”15 The

officials and PrimeCare staff noted that Thomas had white

powder covering his lips, but they also failed to send Thomas

to a hospital. Instead, the officials placed Thomas in a cell

without any medical care or observation. Less than two hours

after Thomas’s arrest, surveillance video showed Thomas

falling backwards onto the floor, hitting his head, and suffering

cardiac arrest. Only then did officials transport Thomas to

UPMC Pinnacle Harrisburg Hospital, where he died three days

later. His cause of death was “cocaine and fentanyl toxicity.”16

B. Procedural History

Sherelle Thomas sued numerous parties after her

relative’s death. Several defendants moved to dismiss the

Complaint, and the District Court granted the motions.

13

Appx. 075.

14

Thomas also alerted Officer Carriere of his seizure disorder.

15

Appx. 078.

16

Appx. 079. Officer Foose was advised that medical

personnel “sucked 40 ml of cocaine out of Thomas enroute to

the hospital that he had ingested.” Appx. 103.

7

Sherelle Thomas then filed an Amended Complaint. The

Amended Complaint asserted various state and federal claims

against several defendants, including the Officers. Only Count

IV (Fourteenth Amendment; Failure to Render Medical Care)

and Count I (Fourteenth Amendment; Failure to Intervene) are

relevant to this appeal.

The Amended Complaint drew six motions to dismiss

and one motion for judgment on the pleadings and three other

motions, each of which the District Court denied in full.17 As

relevant to this appeal, the District Court found that the

Officers were not entitled to qualified immunity on the failure

to intervene and failure to render medical care claims because

the rights are clearly established, and the Amended Complaint

states facts sufficient to allege that the Officers violated these

rights. Officers Johnsen, Salazar, Banning, Foose, and

Carriere, and Probation Officer Kinsinger filed a collateral

appeal, limited to the issue of qualified immunity.

II. JURISDICTION

The District Court had subject matter jurisdiction under

28 U.S.C. §§ 1331 and 1343(a)(3). Sherelle Thomas moved to

dismiss this appeal for lack of appellate jurisdiction. We will

deny the motion because “a district court’s denial of a claim of

qualified immunity, to the extent that it turns on an issue of

law, is an appealable ‘final decision’ within the meaning of 28

U.S.C. § 1291 notwithstanding the absence of a final

17

During the pendency of the motions, Sherelle Thomas

requested to voluntarily dismiss the City of Harrisburg from

the suit. As a result, the District Court dismissed the claims

against the City of Harrisburg with prejudice.

8

judgment.”18 Accordingly, we have jurisdiction under § 1291.

III. DISCUSSION

The Officers contend that they are entitled to qualified

immunity on the failure to render medical care and failure to

intervene claims. We review a district court’s denial of a

motion to dismiss on qualified immunity grounds de novo “as

it involves a pure question of law.”19 In doing so, we must

accept Sherelle Thomas’s allegations as true and draw all

inferences in her favor.20

At the motion to dismiss stage, federal and state

officials are entitled to qualified immunity unless (1) the “facts,

taken in the light most favorable to the plaintiff, demonstrate a

constitutional violation,”21 and (2) the alleged right was clearly

established at the time of the violation.22 Because Sherelle

Thomas alleged a violation of the constitutional right to

18

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). See also

Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (“[A] district

court’s order rejecting qualified immunity at the motion-to-

dismiss stage of a proceeding is a ‘final decision’ within the

meaning of § 1291.”); Dennis v. City of Philadelphia, 19 F.4th

279, 285 (3d Cir. 2021) (holding that the denial of a motion to

dismiss based on qualified immunity can be a reviewable

collateral order).

19

Dennis, 19 F.4th at 284 (quoting James v. City of Wilkes–

Barre, 700 F.3d 675, 679 (3d Cir. 2012)).

20

Id. (citing George v. Rehiel, 738 F.3d 562, 571 (3d Cir.

2013)).

21

Couden v. Duffy, 446 F.3d 483, 492 (3d Cir. 2006).

22

Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).

9

medical care, made applicable in this case to all the Officers

due to their knowledge of Thomas’s obvious consumption of a

large amount of cocaine, the Officers are not entitled to

qualified immunity on the claim of failure to render medical

care. However, the District Court erred in finding that the

failure to intervene claim involved a constitutional violation.

We have not recognized a cause of action for such a purported

constitutional violation.

A. Failure to Render Medical Care23

1. Violation of the Constitutional Right to Medical

Care

To plead a violation of the right to medical care, an

individual must allege (1) “a serious medical need” and (2)

“acts or omissions by [individuals] that indicate a deliberate

indifference to that need.”24 A serious medical need is “one

that has been diagnosed by a physician as requiring treatment

23

As a basic legal standard, the Supreme Court has held that

the Eighth Amendment protects a prisoner’s serious medical

needs. Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).

Because the Fourteenth Amendment affords pretrial detainees

protections at least as great as those available to inmates under

the Eighth Amendment, we will review Sherelle Thomas’s

claims for failure to render medical care under the Fourteenth

Amendment by applying the same standard used to evaluate

claims brought under the Eighth Amendment. See Natale v.

Camden Cnty. Corr. Facility, 318 F.3d 575, 581–82 (3d Cir.

2003).

24

Natale, 318 F.3d at 582; Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999).

10

or one that is so obvious that a layperson would easily

recognize the necessity for a doctor’s attention.”25 Deliberate

indifference is a subjective standard consistent with

recklessness.26 It requires both that an individual be aware of

facts from which the inference could be drawn of a substantial

risk and that the individual actually draws that inference.27 In

inadequate medical care cases, we have specifically found

deliberate indifference where objective evidence of a serious

need for care is ignored and where “necessary medical

treatment is delayed for non-medical reasons.”28

We will look to the allegations of the Complaint to

determine the adequacy of Sherelle Thomas’s pleading of such

a violation. She described numerous facts demonstrating a

serious medical need. The facts she has alleged support the

position that a layperson in the Officers’ situation29 would have

been aware both of the danger of cocaine ingestion and of the

fact that Thomas had ingested cocaine.

As set forth in the Amended Complaint, Officer Foose’s

statements to Officers Salazar, Banning, and Carriere, as well

as her signed Affidavit of Probable Cause, are sufficient to

25

Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d

326, 247–48 (3d Cir. 1987) (quoting Pace v. Fauver, 479

F.Supp. 456, 458 (D.N.J.1979), aff’d, 649 F.2d 860 (3d Cir.

1981)).

26

Natale, 318 F.3d at 582.

27

Id.

28

Id. (quoting Lanzaro, 834 F.2d at 347).

29

Qualified immunity is an individual defense so that we

independently analyze the conduct of each officer. Rouse, 182

F.3d at 200.

11

support the allegation that Officer Foose believed that Thomas

ingested cocaine. Her belief was based on multiple

observations of Thomas: a large amount of an unknown

substance was in his mouth, his lips were pasty white, his face

was covered with a white powdery substance, cocaine rocks

fell from his shirt, and his candy cigarette explanation was not

plausible.30 She also observed him spit out a “white liquid that

resembled crack cocaine attempted (sic) to be swallowed.”31

The Amended Complaint also alleged that Officers

Johnsen, Salazar, Banning, and Carriere and Probation Officer

Kinsinger believed that Thomas had ingested a significant

quantity of cocaine. A layperson would have known that

created a serious medical need. Like Officer Foose, Probation

Officer Kinsinger notified another officer of this belief after

observing Thomas. Officer Salazar also observed a white

powdery substance on Thomas’s lips, and both Officers

Salazar and Johnsen verbalized their belief that Thomas had

ingested cocaine. Officer Banning observed a “large amount

of white residue around and on his lips” and found no evidence

of candy cigarettes.32 Moreover, after Officer Carriere was

30

At oral argument, the Officers suggested that Thomas may

have consumed a small amount of cocaine and thus there was

no serious medical need. However, at this stage, we must

accept Sherelle Thomas’s pleaded facts and take all inferences

in her favor. As a result, we rely on the contention that Thomas

consumed a large amount of cocaine, witnessed by various

Officers.

31

Appx. 102.

32

Appx. 106. Cf. Watkins v. Battlecreek, 273 F.3d 682, 686

(6th Cir. 2001) (rejecting claim of serious medical need and

deliberate indifference at the summary judgment stage where

12

notified by the other officers that Thomas had ingested

cocaine, Thomas told Officer Carriere that he was overheating

despite the cold weather outside, an indication that he was in

physical distress and in need of medical attention. In view of

the above allegations, the Officers cannot credibly argue that

Thomas’s denial that he ingested cocaine, taken in the light

most favorable to Sherelle Thomas, would negate the

conclusion that a layperson would believe that he had, in fact,

ingested a significant amount of cocaine and therefore had a

serious medical need. Ironically, an arrestee, who consumed

drugs for the purpose of concealing them, would probably deny

having done so.

Having established objective evidence of a serious

medical need, the Amended Complaint alleged facts to support

that the Officers were deliberately indifferent to that need.

First, each Officer was aware of numerous facts from which

one could draw an inference of a substantial risk to Thomas’s

health. In view of the undisputed evidence of record, the

Officers fail in their argument that Thomas’s alleged lack of

observable symptoms negate the facts from which an inference

of a substantial risk to Thomas’s health could be drawn.

Second, the Complaint alleges that each Officer actually

drew the inference of a substantial risk to Thomas’s health.

Cocaine ingestion poses an obvious health risk,33 and the

officers did not witness ingestion and decedent “provided

rational explanations for his behavior”).

33

Rhinehart v. Scutt, 894 F.3d 721, 738 (6th Cir. 2018) (“A

jury is entitled to ‘conclude that a prison official knew of a

substantial risk from the very fact that the risk was obvious.’

And if a risk is well-documented and circumstances suggest

13

Amended Complaint asserts that at least two officers, Corporal

Johnsen and Officer Salazar, publicly drew such an inference

in the presence of the other Officers, acknowledging that

ingestion could lead to an “ill effect” on health or to death.34

The Complaint alleges adequate circumstantial evidence to

suggest that the remaining officers made, or should have made,

a similar inference.

Finally, the Complaint alleges that the Officers ignored

evidence of this risk and delayed medical care by deciding to

book Thomas and by taking him to a booking center that was

ill-equipped to handle emergencies. Moreover, this decision

was in direct violation of the department policy cited in the

Complaint, which states that individuals who have consumed

narcotics should be taken to the hospital if the narcotic

consumed could jeopardize their health.35

that the official has been exposed to information so that he

must have known of the risk, the evidence is sufficient for a

jury to find that the official had knowledge.” (citation omitted)

(quoting Farmer v. Brennan, 511 U.S. 825, 842–43 (1994))).

34

Appx. 072–073.

35

Other police departments have similar policies,

demonstrating a broad view of narcotic ingestion as a serious

medical need. See, e.g., New York City Police Department,

Patrol Guide: Prisoners Requiring Medical/Psychiatric

Treatment 5 (Jun. 1, 2016), available at

https://www.nyc.gov/html/ccrb/downloads/pdf/pg210-04-

prisoner-requiring-medical-psychiatric-treatment.pdf (“When

a uniformed member of the service observes or suspects that a

prisoner has ingested a narcotic or other dangerous substance,

the prisoner will be transported from the place of arrest

DIRECTLY to the nearest hospital facility . . . UNDER NO

14

These facts distinguish this case from those the Officers

cite in opposition to a holding that there was a constitutional

violation. Most of these cases involved officers who

demonstrated no actual belief of narcotic ingestion or officers

who failed to draw an inference of substantial risk.36 Because

there are sufficient allegations here from which to find

deliberate indifference, as well as a serious medical need,

Sherelle Thomas has plausibly alleged a violation of the right

to medical care.

2. Clearly Established Right

However, before the Officers can be denied qualified

immunity from being sued for deliberate indifference to a

serious medical need, the constitutional right violated must be

clearly established.37 In other words, qualified immunity

operates “to ensure that before officers are subjected to suit,

CIRCUMSTANCES will a prisoner who has ingested a

narcotic or other dangerous substance be transported to the

command for arrest processing prior to receiving medical

treatment.”).

36

See, e.g., Nykiel v. Borough of Sharpsburg, 778 F. Supp. 2d

573, 585 (W.D. Pa. 2011) (rejecting claim on summary

judgment where one sole fact, witnessed by one officer,

suggested cocaine ingestion and officers requested medical

assistance once observing additional signs of overdose);

Watkins, 273 F.3d at 686 (finding qualified immunity on

summary judgment where the evidence did not sufficiently

establish that any of the officers believed that the decedent

swallowed drugs).

37

Saucier v. Katz, 533 U.S. 194, 201, 206 (2001).

15

they are on notice their conduct is unlawful.”38

The District Court properly recognized the “right to

medical care for persons in custody of law enforcement.”39

The Supreme Court has established such a right, as have we.40

There has not yet, however, been a recognition by this Court of

the right to medical care after the ingestion of drugs. That then

is the issue that we must determine here: Has such a right been

clearly established?

The Officers suggest we should articulate the right as

follows:

whether Mr. Thomas had a constitutional right

established “beyond debate” to be taken to a

hospital emergency room for treatment when

none of the officers witnessed him ingest drugs,

he repeatedly denied cocaine ingestion even

when warned it could cause his death, his

companions denied seeing cocaine, he denied

experiencing symptoms consistent with cocaine

or fentanyl toxicity, he did not request medical

care, showed no overt signs of being in medical

distress and was taken directly to the prison

booking center where he was assessed medically

38

Id. at 202, 206 (explaining that a right is clearly established

when “it would be clear to a reasonable officer that his conduct

was unlawful in the situation he confronted”).

39

See Appx. 030.

40

See DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489

U.S. 189, 198, 200 (1989); Estelle, 429 U.S. at 103–04; Natale,

318 F.3d at 582; Lanzaro, 834 F.2d at 347.

16

and cleared by the prison’s medical staff to

remain.41

The law, however, does not require such specificity.

Although the Officers are correct that the right must be defined

beyond a high level of generality,42 there need not be “a case

directly on point for a right to be clearly established.”43 “‘A

public official,’ after all, ‘does not get the benefit of “one

liability-free violation” simply because the circumstance of his

case is not identical to that of a prior case.’”44 Instead, the law

requires only that the right “is sufficiently clear that a

reasonable official would understand that what he is doing

violates that right.”45 That standard is met when a violation is

“so obvious” it becomes likewise evident that a clearly

established right is in play, “even in the absence of closely

analogous precedent.”46 As a result, qualified immunity is not

appropriate when the case in question presents “extreme

circumstances” to which “a general constitutional rule already

identified in the decisional law may apply with obvious

clarity.”47 That is the case before us.

41

Br. of Appellants Johnsen, Salazar, and Banning 25.

42

See Mullenix v. Luna, 577 U.S. 7, 12 (2015).

43

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021)

(quoting White v. Pauly, 580 U.S. 73, 79 (2017)).

44

Mack v. Yost, 63 F.4th 211, 233 (3d Cir. 2023) (quoting

Peroza-Benitez v. Smith, 994 F.3d 157, 166 (3d Cir. 2021)).

45

Id. at 231 (quoting Peroza-Benitez, 994 F.3d at 165); Pauly,

580 U.S. at 79–80 (noting that “general statements of the law

are not inherently incapable of giving fair and clear warning”).

46

Mack, 63 F.4th at 232 (quoting Schneyder v. Smith, 653

F.3d 313, 330 (3d Cir. 2011)).

47

Brosseau v. Haugen, 543 U.S. 194, 199 (2004); Hope v.

17

We may rely on general principles to find that the facts

here present a violation that is “so obvious” “that every

objectively reasonable government official facing the

circumstances would know that the [Officers’] conduct. . .

violate[d] federal law when [they] acted.”48 In such a case,

“general standards can ‘clearly establish’ the answer, even

without a body of relevant case law.”49 In other words,

“officials can still be on notice that their conduct violates

established law even in novel factual circumstances.”50

As applied to the facts of this case, we hold therefore

that when an officer is aware of the oral ingestion of narcotics

by an arrestee under circumstances suggesting the amount

consumed was sufficiently large that it posed a substantial risk

to health or a risk of death, that officer must take reasonable

steps to render medical care.51 In this case, that care would

Pelzer, 536 U.S. 730, 741 (2002).

48

Mack, 63 F.4th at 232 (quoting Schneyder, 653 F.3d at 330).

49

Brosseau, 543 U.S. at 199.

50

Hope, 536 U.S. at 741.

51

See DeShaney, 489 U.S. at 198, 200; Estelle, 429 U.S. at

103–04; Natale, 318 F.3d at 582; Lanzaro, 834 F.2d at 347;

Sandoval v. County of San Diego, 985 F.3d 657, 680 (9th Cir.

2021) (deriving the right to medical care following the

ingestion of narcotics from the general right to medical care);

Reynolds v. Mun. of Norristown, No. 15-cv-0016, 2019 WL

1429550, at *8–10 (E.D. Pa. Mar. 28, 2019); de Tavarez v. City

of Fitchburg, 2014 WL 533889, at *4 (D. Mass. Feb. 6, 2014)

(holding that it is obvious that the right to medical care requires

officers to provide medical care to those who ingested

narcotics); Border v. Trumbull Cnty. Bd. Of Comm’rs, 414

F.App’x 831, 839 (6th Cir. 2011) (establishing right to medical

18

have been to take the arrestee to a hospital, as provided for in

the Harrisburg Police Department policy.52

For the above reasons we will affirm the District Court’s

denial the Officers’ claims for qualified immunity.

B. Failure to Intervene

The Officers contend that the District Court improperly

denied their motion to dismiss because (1) Sherelle Thomas

cannot adequately plead a violation of failure to intervene to

prevent a violation of the right to medical care where no such

cause of action exists and (2) there is no clearly established

right to intervention in the context of medical care.

The District Court does not directly address whether

individuals have a clearly established right to intervention. We

agree with the Officers that we have not recognized any such

right, nor has the Supreme Court. Though we have recognized

a right to have a government actor intervene when the

underlying constitutional violation involves excessive force or

sexual assault of a person in custody or detention, we have

since concluded that our precedent does not establish, let alone

clearly establish, a right to intervention in other contexts.53

care where prisoner showed signs that he was intoxicated).

52

See Hope, 536 U.S. at 741–42 (relying on general principles

coupled with Department of Corrections regulations and

reports to find that the violation was obvious).

53

Weimer v. County of Fayette, 972 F.3d 177, 190–91 (3d Cir.

2020) (finding that the right to intervene, which exists against

uses of excessive force, has not been clearly extended to

intervention to prevent unconstitutional investigations); see

19

Because there is no clearly established right to

intervention in the medical context, we need not address the

Officers’ contention that Sherelle Thomas has failed to

plausibly allege a violation of such a right.54 55

Because there is not a clearly established right to

intervention to prevent a violation of the right to medical care,

the Officers are entitled to qualified immunity as to Sherelle

Thomas’s failure to intervene claim.

IV. CONCLUSION

For the foregoing reasons, we will affirm in part and

also Ricks v. Shover, 891 F.3d 468, 479 (3d Cir. 2018)

(extending the right to intervention to the “right to be protected

by state officials aware of ongoing sexual assault” in a case

dealing with a prisoner); E.D. v. Sharkey, 928 F.3d 299, 307–

08 (3d Cir. 2019) (“agree[ing] that a[n immigration] detainee’s

right to be protected by state officials aware of ongoing sexual

assault was clearly established”).

54

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

55

Because in the process of considering qualified immunity,

we have determined that we have not recognized a

constitutional duty to intervene to prevent the violation of the

right to medical care, we will remand this claim to the District

Court with instructions to dismiss it.

Moreover, on the facts here, a claim for failure to

intervene would be almost identical to the underlying claim of

failure to render medical care: It would have been virtually

impossible for any of the Officers to have had knowledge of an

ongoing violation of a right to medical care without themselves

participating in that violation.

20

reverse in part the District Court’s order denying qualified

immunity.

21

PHIPPS, Circuit Judge, dissenting in part.

I do not believe that it is clearly established that the Due

Process Clause of the Fourteenth Amendment imposes a duty

on law enforcement officers to transport a detained suspect

who ingested drugs to a hospital. The Majority Opinion

disagrees and holds the transportation-to-a-hospital rule is so

obvious that it precludes qualified immunity for the officers

who took Thomas to a detention center with medical staff on

hand. I respectfully dissent for the reasons below.

The lynchpin of the qualified immunity analysis is not so

much the first prong – whether a violation of a federal right has

occurred – because that rises and falls with the merits of the

action. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)

(identifying the two prongs and holding that they may be

considered in either order). Rather, qualified immunity does

most of its work through the second prong – whether the

violation of a federal right has been clearly established. See id.

The mainline method of proving that a right is clearly

established at the second prong relies on the notice provided to

government officials from the articulation of the constitutional

right in question at an appropriate level of specificity by either

binding precedent or a robust consensus of persuasive

authority. See Ashcroft v. al-Kidd, 563 U.S. 731, 741–42

(2011) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999));

see also City of Escondido v. Emmons, 139 S. Ct. 500, 503

(2019) (per curiam); District of Columbia v. Wesby, 138 S. Ct.

577, 589–90 (2018); Anderson v. Creighton, 483 U.S. 635, 640

(1987). But here, the Majority Opinion offers no precedent for

the proposition that as of December 14, 2019, the Due Process

Clause required that officers transport to a hospital a detained

suspect who appears to have ingested drugs.1

1

The most comparable cases involving suspects suffering

overdoses are both from the Ninth Circuit and they reached

1

Without any caselaw support, the Majority Opinion resorts

to the extraordinary-circumstances exception – an argument

not raised by Thomas’s Estate. Under the exception, which is

available only in “exceedingly rare cases,” a federal right may

be clearly established for purposes of the second prong even in

the absence of controlling precedent or a robust consensus of

persuasive authority if the wrongdoing is “so obvious that

‘every objectively reasonable government official facing the

circumstances would know that the official’s conduct did

violate federal law when the official acted.’” Schneyder v.

Smith, 653 F.3d 313, 330 (3d Cir. 2011) (quoting Vinyard v.

Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)); see also Mack

v. Yost, 63 F.4th 211, 233 (3d Cir. 2023).

The Supreme Court has applied the extraordinary

circumstances exception very differently than the Majority

Opinion now does. In Hope v. Pelzer, 536 U.S. 730 (2002),

the Supreme Court held that tying a shirtless prisoner to a

hitching post in the Alabama sun for seven hours without

bathroom breaks and with only one or two offers of water was

an obvious violation of the Eighth Amendment’s prohibition

on cruel and unusual punishment. Id. at 734–35. Even without

materially similar precedent, the Supreme Court concluded

that right was clearly violated due to the “obvious cruelty

inherent in th[e] practice.” Id. at 745. Similarly, in Taylor v.

Riojas, 141 S. Ct. 52 (2020), the Supreme Court held that “any

reasonable officer should have realized” that it was

unconstitutional to confine an inmate for six days in two cells

– one, which “was covered, nearly floor to ceiling in a massive

amount of feces,” and another, which was “frigidly cold” and

different outcomes – both after the events of this case.

Compare Sandoval v. Cnty. of San Diego, 985 F.3d 657, 680–

81 (9th Cir. 2021), with J.K.J. v. City of San Diego, 42 F.4th

990, 1001 (9th Cir. 2021), reh’g en banc granted, opinion

vacated, 59 F.4th 1327 (9th Cir. 2023).

2

required the inmate to sleep naked on a sewage-covered floor.

Id. at 54 (quotations omitted).

But under the Eighth Amendment standard, which the

Majority Opinion applies to the due process claims here, the

defendant law enforcement officers did not act with such

obvious cruelty. Thomas exhibited no plain symptoms of

distress. And he responded coherently to inquiries by other

later-arriving officers. The only time he expressed physical

discomfort was en route to the booking center, which had on-

site medical staff. During that ride, Thomas communicated to

the officer that he felt hot and requested the officer to roll down

the window despite an outside temperature of forty-six

degrees. And after Thomas arrived at the detention center, not

even the examining nurse realized the urgency of the situation.

Under these circumstances, the response by law enforcement

officers – who interacted with Thomas to varying degrees and

who are not medical professionals – falls well short of the

obvious cruelty alleged in Hope and Taylor.

Despite invoking the extraordinary circumstances

exception, the Majority Opinion does not attempt to construe

defendants’ conduct as obvious cruelty. Instead, it concludes

that a due process violation was obvious based on allegations

that the Harrisburg Police Department had “a policy to take an

arrestee to the hospital rather than the booking center if they

have consumed illegal narcotics in a way that could jeopardize

their health and welfare.” Am. Compl. ¶ 73 (App. 75). The

Majority Opinion relies on those allegations about the policy –

not to demonstrate obvious cruelty – but rather to show that

defendants were on notice that they should have taken Thomas

to a hospital, instead of the detention center, which had medical

staff on hand. The extraordinary circumstances exception,

however, is not such a broad workaround for the second prong:

a municipal policy cannot substitute for controlling precedent

or a robust consensus of persuasive authority as a means of

providing notice that a constitutional right is clearly

established. Moreover, any notice provided by the policy was

3

not of constitutional dimension – the policy relayed only the

Harrisburg Police Department’s presumptive action plan under

the circumstances, and it lacks force of law. Thus, that policy

does not set a constitutional standard of conduct for the

Harrisburg Police Department, much less for every law

enforcement agency operating within this Circuit’s

geographical bounds. Such an approach inverts the role of the

Constitution as the highest law of the land: constitutional

protections should inform police policies; the policy of one

police department does not define the constitutional standard

of conduct for an entire circuit.

For these reasons, I believe that the Majority Opinion errs

in holding that it was clearly established as of December 2019

that law enforcement officers must transport to a hospital a

detained suspect appearing to have previously ingested illegal

drugs. And here, because the allegations do not identify

obvious cruelty, the officers should receive qualified

immunity.

4