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).

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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

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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