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Third Circuit Denies Qualified Immunity to Pennsylvania Jail Guards and PrimeCare in Detainee’s Overdose Death

by David M. Reutter


On December 6, 2023, the U.S. Court of Appeals for the Third Circuit affirmed denial of qualified immunity (QI) to defendant officials with Pennsylvania’s Harrisburg Police Department (HPD) and the contracted medical provider for Dauphin County Booking Center (DCBC), PrimeCare Medical, in a suit accusing them of failing to treat a detainee who died in custody of a fatal fentanyl overdose. However, the Court affirmed denial of a claim that Defendants failed to intervene to prevent a violation of Terrelle Thomas’ right to medical care, finding no such right exists.

HPD Officer Daril Foose and Adult Probation Officer Dan Kisinger observed Thomas and another man exit a Harrisburg bar on December 14, 2019, getting in a vehicle and driving away. A traffic stop ensued, during which the cops saw that Thomas had ingested a white powdery substance. He explained that it was the remnants of a candy cigarette, but as he said this, the cops also allegedly saw rocks of cocaine fall from his pocket.

Despite this evidence of drug ingestion, no care was provided to Thomas after he was arrested to treat withdrawal or to assure he had not ingested a dangerous amount of drugs. While policy mandated taking him to a hospital under the circumstances, Off. Brian Carriere merely rolled down the window of his squad car when Thomas complained of being hot—which was another indication of drug overdose, since it was just 46 degrees Fahrenheit outside.

At DCBC, it was apparent to guards and medical staff that Thomas “may have swallowed crack cocaine,” as the Court recalled that the officers advised them. But once again policy was disregarded, and Thomas was booked into a cell without any medical care or observation. Less than two hours after his arrest, jail surveillance video recorded Thomas as he suffered cardiac arrest, collapsed and hit his head. He died three days later at a hospital. The cause of death was “cocaine and fentanyl toxicity.”

As administrator of his estate, Sherrelle Thomas filed suit in U.S. District Court for the Middle District of Pennsylvania. Her Amended Complaint drew Defendants’ motions to dismiss. The district court denied the motions, and Defendants appealed. Relevant to the appeal was denial of QI to the officers on claims that they failed to render medical care and also failed to intervene to protect that right; the district court decided that both rights were clearly established at the time.

In a precedential ruling, the Third Circuit first addressed claims of failure to render medical care. It said even a layperson would have known that ingesting a large amount of cocaine would require medical response. That Thomas denied ingesting drugs was not sufficient to justify a failure to act once the white substance was seen on his lips and face. As the Court noted, “[a]n arrestee, who consumed drugs for the purpose of concealing them, would probably deny having done so.” Furthermore, once aware that an arrestee may have ingested narcotics under circumstances “suggesting the amount consumed was sufficiently large that it posed a substantial risk to health or death,” an officer “must take reasonable steps to render medical care,” the Court said. It therefore affirmed the district court’s decision that Defendants could be found deliberately indifferent to Thomas’s serious medical need.

However, the Court disagreed with the finding that Defendants failed to intervene to prevent a violation of Thomas’ right to medical care. Unlike a failure to render medical care, no such cause of action exists, the Court said; thus, there is no clearly established right that was violated. The district court’s order on that claim was therefore reversed with instructions to dismiss it. Before the Court, Thomas’ Estate was represented by attorneys Kevin V. Mincey and Riley H. Ross, III of Mincey Fitzpatrick Ross in Philadelphia. See: Thomas v. City of Harrisburg, 88 F.4th 275 (3d Cir. 2023).

A request for rehearing before the entire Third Circuit en banc was denied on January 8, 2024; Defendants then petitioned the Supreme Court of the U.S. on April 8, 2024, for a writ of certiorari to hear the case, and PLN will update developments as they are available. See: Thomas v. City of Harrisburg, USCA (3rd Cir), Case Nos. 21-2963, 21-2964 and 21-3018; and Kinsinger v. Thomas, U.S., Case No. 23-1204.

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Related legal case

Thomas v. City of Harrisburg