PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-1148
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JUNE-LORI MEARS;
MICHAEL MEARS,
Appellants
v.
ELIZABETH CONNOLLY, Acting Commissioner; ROGER
BORICHEWSKI; RENEE BURAWSKI; TERESA
MCQUAIDE; MARY JO KURTIAK; CAROLE JOHNSON;
VALERIE L. MIELKE; GREYSTONE PARK PSYCHIAT-
RIC HOSPITAL; JOSEPH YOUNG; MARC LIPKUS;
JOHN VOLTARELLI; RAMONA CAHIWAT; JAY EP-
STEIN; PATRICIA TURSI; CHEETARA GOODWIN;
ELIZABETH PATTERSON; AJIBOLA OKE; JOHN DOE;
JANE DOE; STATE OF NEW JERSEY; DEPARTMENT
OF HUMAN SERVICES; ADEKUNLE DACOSTA; SHIRA
OGLESBY; ALPHONSUS OKORO
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3:18-cv-16174)
U.S. District Judge: Honorable Michael A. Shipp
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Argued: November 17, 2021
Before: CHAGARES, Chief Judge, and BIBAS and
FUENTES, Circuit Judges
(Filed: January 31, 2022)
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Patrick J. Dwyer [ARGUED]
Thomas E. Hastings
William E. McGrath, Jr.
DILWORTH PAXSON
2 Research Way
Princeton, NJ 08540
Counsel for Appellants
Brett J. Haroldson [ARGUED]
Ashley L. Costello
OFFICE OF ATTORNEY GENERAL OF NEW JERSEY
25 Market Street
Trenton, NJ 08625
Counsel for Appellees
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Most constitutional rights are rights to be left alone. The
government usually has no duty to protect people from one
2
another. But when the government itself creates a danger, it
may be liable.
June-Lori Mears says the government endangered her:
when she visited her mentally ill son, a state psychiatrist and
nurse left her alone, vulnerable to his assault. The District
Court disagreed, dismissing all her claims.
The court erred. True, the psychiatrist merely encouraged
her to visit. But the nurse did more: she supervised June’s visit
at first and then abandoned her mid-visit. Because June may
have a claim against the nurse, we will reverse the District
Court in part.
I. BACKGROUND
On appeal from a dismissal, we take the allegations in
June’s complaint as true. Her son, Brenden Mears, suffers from
severe bipolar disorder. This makes him prone to violent out-
bursts, drug abuse, and other antisocial behavior. And he has
made these problems worse by refusing to take his medication.
As a result, he has repeatedly been jailed and institutionalized.
In 2017, he was involuntarily admitted to Greystone Park, a
state-run psychiatric hospital in New Jersey, for the fourth
time. He stayed there for more than two years.
During this time at Greystone, Brenden’s condition got
worse. He grew more and more psychotic. He stalked the halls,
made an aggressive sexual comment to a staffer, and attacked
other patients. He beat one of them severely enough to send
him to the intensive care unit.
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But June stood by her son and kept visiting him at Grey-
stone. Despite his eruptions, Greystone staff encouraged her
visits as part of Brenden’s treatment. Before one of these visits,
June asked if it was safe to visit Brenden. Though it was just
days after he severely beat the other patient, his psychiatrist,
Dr. Joseph Young, assured her that it was.
So June visited Brenden again. Greystone staff were sup-
posed to supervise all patient meetings, yet no one was as-
signed to monitor her visit.
Brenden’s head nurse, Shira Oglesby, knew of this over-
sight. At first, she accompanied June while she visited
Brenden. But sometime during June’s visit, Nurse Oglesby left
the room. Brenden watched her leave “intently.” App. 37 ¶ 59.
Once she left, he pounced on June and beat her severely. She
suffered “permanent physical and psychological injuries,” in-
cluding brain trauma, broken ribs, and post-traumatic stress
disorder. App. 40 ¶¶ 69–70.
June and her husband Michael sued Dr. Young, Nurse
Oglesby, Greystone, various other staffers, and state officials
under 42 U.S.C. § 1983 and state law. Michael also sued for
loss of consortium.
The District Court dismissed all claims. Sovereign immun-
ity, it reasoned, barred the claims against Greystone and the
state officials in their official capacity. Plus, state officials usu-
ally have no affirmative duty to protect people from private vi-
olence. And, the court held, these facts did not amount to a
state-created danger.
4
June (and Michael) now appeal only the dismissal of her
§ 1983 claims against Dr. Young and Nurse Oglesby. The Dis-
trict Court had jurisdiction under 28 U.S.C. § 1331, and we
have jurisdiction under § 1291. We review de novo. Oakwood
Lab’ys LLC v. Thanoo, 999 F.3d 892, 896 n.1 (3d Cir. 2021).
II. JUNE’S CLAIM MAY PROCEED AGAINST
NURSE OGLESBY BUT NOT DR. YOUNG
The government has no general legal duty to keep people
safe. DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489
U.S. 189, 195–96 (1989). But it assumes one “when it affirm-
atively places [a] person in a position of danger [that] the per-
son would not otherwise have faced.” Kamara v. Att’y Gen.,
420 F.3d 202, 216 (3d Cir. 2005). Then, the government must
protect people from the dangers it created. The Fourteenth
Amendment’s Due Process Clause requires it to do so. Id.
To make out a state-created-danger claim, June must plau-
sibly plead four things:
• she suffered a “foreseeable and fairly direct” harm;
• the state “acted with a degree of culpability that
shocks the conscience”;
• she “was a foreseeable victim … or a member of a
discrete class of persons” potentially harmed “by the
state’s actions”; and
• the state “affirmatively used [its] authority” to “cre-
ate[ ] a danger” or make her “more vulnerable to
danger than had [it] not acted at all.”
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Bright v. Westmoreland Cnty., 443 F.3d 276, 281 (3d Cir.
2006) (internal quotation marks omitted).
The District Court did not reach the second and third ele-
ments, holding only that June had not adequately pleaded the
first and fourth. Because she challenges only that ruling, we
focus solely on those two elements. And because her § 1983
claims require personal wrongdoing, we analyze her claims
against Dr. Young and Nurse Oglesby separately. Chavarriaga
v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015).
A. Dr. Young’s encouragement to visit was not enough
of an affirmative act
Start with Dr. Young. To satisfy the fourth element of a
state-created-danger claim, June must plead that Dr. Young
“exercised his … authority” to “affirmative[ly] act[ ]” in a way
that “created a danger to [June] or rendered [her] more vulner-
able to danger.” Ye v. United States, 484 F.3d 634, 639 (3d Cir.
2007).
June says Dr. Young encouraged her to visit and said she
would be safe. But as our precedent holds, assurances and fail-
ures to warn are not affirmative acts. In one case, police as-
sured a family that they would arrest a criminal but did not.
Bright, 443 F.3d at 279. The criminal then murdered a child.
Id. We held that “expressing an intention” to arrest without do-
ing so was not an affirmative act. Id. at 284. In another case,
police failed to warn a witness in a criminal case of the defend-
ant’s menacing behavior, even though the defendant was a con-
victed killer. Walter v. Pike Cnty., 544 F.3d 182, 186–88 (3d
Cir. 2008). Yet even if the police were “highly culpable,” we
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held, they could not be liable for failing to warn of private vi-
olence. Id. at 194. Likewise, we refused to hold a doctor liable
for mistakenly assuring a seriously ill patient that he had “noth-
ing to worry about and that he [was] fine.” Ye, 484 F.3d at 635,
641.
Instead, an affirmative act must amount to a “ ‘restraint of
personal liberty’ that is ‘similar’ to incarceration or institution-
alization.” Id. at 640–41 (quoting DeShaney, 489 U.S. at 200).
But Dr. Young did not rob June of her power to choose whether
to visit. She was free to say no. Thus, the District Court
properly dismissed June’s claims against Dr. Young.
B. Nurse Oglesby may be liable for leaving June alone
with Brenden
The claim against Nurse Oglesby is another matter. The
District Court found that Nurse Oglesby had not affirmatively
acted to create a danger and that June had not suffered “fore-
seeable and fairly direct” harm as a result. App. 16. On both
points, it erred. By leaving the room during June’s visit, Nurse
Oglesby may have facilitated Brenden’s assault.
1. The harm June suffered was “foreseeable and fairly di-
rect.” To show that her injuries were foreseeable, June must
allege that Nurse Oglesby had “actual knowledge or an aware-
ness of risk that [was] sufficiently concrete to put [her] on no-
tice of the harm.” Phillips v. Cnty. Of Allegheny, 515 F.3d 224,
238 (3d Cir. 2008). She does.
Nurse Oglesby was the head of Brenden’s nursing team.
While under her care, his mental health had “deteriorated
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significantly,” and he had “bec[o]me progressively more psy-
chotic.” App. 24 ¶ 31. Just three days before June’s visit, he
was “acting bizarrely” and attacked another patient. App. 25
¶ 39. These facts would have put her on notice of the serious
threat Brenden posed to his mother. Indeed, she repeatedly
complained to June about Brenden’s behavior.
The District Court found otherwise because Brenden had
not attacked June before. But that focus is too narrow. See Phil-
lips, 515 F.3d at 237 (noting that harm can be foreseeable even
without any “history of violence”). “[C]ommon sense” tells us
that it is “inherent[ly] risk[y]” to leave a visitor with a violent
psychiatric patient—even if that visitor is the patient’s mother.
L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 245 (3d Cir. 2016).
So the harm was foreseeable.
June was also a direct victim of Brenden’s attack. By ceas-
ing to supervise June’s visit with Brenden, Nurse Oglesby was
“the catalyst for the attack.” Id. at 246 (quoting Morse v. Lower
Merion Sch. Dist., 132 F.3d 902, 910 (3d Cir. 1997)) (internal
quotation marks omitted). Brenden “watch[ed] Oglesby in-
tently,” waited for her to leave, and then attacked June. App.
37 ¶ 59. Plus, June was an “identifiable or discrete” victim: she
was Brenden’s visitor, not a random passerby. Phillips, 515
F.3d at 239. So June’s injury was fairly direct as well as fore-
seeable.
2. Nurse Oglesby’s affirmative act endangered June. June’s
allegations also satisfy the fourth element needed to plead a
state-created danger. Greystone is a state hospital, so Nurse
Oglesby is a state actor. And by exiting the visitation room, she
made June “more vulnerable to harm.” Ye, 484 F.3d at 640,
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642. That leaves the affirmative-act requirement, which June
satisfies too.
The District Court rejected June’s claims on this ground. It
found that June was alleging only inaction and that Nurse
Oglesby’s conduct had not “restrict[ed her] freedom to act on
[her] own behalf.” App. 15–16 (quoting Ye, 484 F.3d at 641).
We disagree on both points.
June alleges action. She says Nurse Oglesby exited the
room, withdrawing her supervision mid-visit. Giving and then
taking away support is more than “failure to provide protec-
tion” or “to warn of a threat.” Walter, 544 F.3d at 195. It is
active conduct.
June also alleges that Nurse Oglesby deprived her of the
ability to act on her own behalf. June entered the visitation
room with the understanding that the visit would be supervised.
She did that freely. But she could not leave on her own. June’s
“movements within the facility were controlled by Greystone
personnel” and she “was not permitted to go outside” the visit-
ing room. App. 35 ¶ 53. So when Nurse Oglesby left, June was
robbed of the chance to decide whether to have an unsuper-
vised visit or take extra precautions. And that is a plausible
deprivation of liberty.
Nurse Oglesby’s behavior resembles that of police officers
who stopped a drunk couple, separated them, and then let the
wife wander off alone. Kneipp v. Tedder, 95 F.3d 1199, 1209
(3d Cir. 1996). It was a cold January night, just above freezing.
Id. at 1203 n.14. The wife fell, was knocked out, and froze. Id.
at 1203. The police, we held, had acted affirmatively and
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“made [her] more vulnerable to harm.” Id. at 1209. Nurse
Oglesby’s conduct had a similar effect on June. Nurse Oglesby
assumed care but then withdrew it, leaving June alone in a
more dangerous position. Id.; see also Ye, 484 F.3d at 640, 643.
Our holding is narrow. If June had knowingly agreed to an
unsupervised visit, the result would likely be different. But on
the facts alleged, Nurse Oglesby’s departure deprived her of
the freedom to avoid an unsupervised visit or to take other pre-
cautions. June has thus pleaded an affirmative act that put her
in danger.
* * * * *
June does not plead that Dr. Young took any affirmative
act; his assurances do not count. But Nurse Oglesby may be
liable for putting June in danger by withdrawing her supervi-
sion. So we will reverse in part and remand to let the District
Court finish analyzing the other elements of June’s state-cre-
ated-danger claim against Nurse Oglesby.
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