NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ______________

No. 21-1019 ______________

MICHELLE MCDONALD-WITHERSPOON, Individually and as adminstratrix of the estate of Kenyada Jones, Appellant

v.

CITY OF PHILADELPHIA; WARDEN GERALD MAY; CORIZON HEALTH, INC.; VIVIAN GANDY, MD; MARIAMMA SAMUEL, RN; JENNIFER MARCINKOWSKI, MA; MHM SERVICES INC, a/k/a MHM Correctional Services, Inc.; DEBORAH HARRIS-WHITE, LSW; CHERYL BLADWIN, MSW; AMBER E. BROWNE; JEANETTE PALMER ______________

Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-17-cv-01914) District Judge: Hon. John R. Padova ______________

Submitted Under Third Circuit L.A.R. 34.1(a) December 10, 2021 ______________

Before: SHWARTZ, PORTER, and FISHER, Circuit Judges.

(Filed: December 21, 2021) ______________

OPINION* ______________

SHWARTZ, Circuit Judge.

This appeal addresses whether the District Court correctly dismissed federal and

state claims against the City of Philadelphia (the “City”), the Philadelphia Adult Parole

and Probation Department (“PAPPD”), and probation officers Amber Browne and Janette

Palmer arising from the death of an incarcerated adult who struggled with schizophrenia

and depression. For the reasons set forth below, the District Court properly dismissed all

claims, and we will therefore affirm.

I

Kenyada Jones had a history of mental illness, including schizophrenia and

depression. He was arrested during a visit with his probation officer, Amber Browne,

and her supervisor, Janette Palmer, and held at Curran-Fromhold Correctional Facility.

While there, he overdosed on blood pressure medication and died.

Jones’ mother, Plaintiff Michelle McDonald-Witherspoon, sued, among others, the

City, PAPPD, Browne, and Palmer (collectively, “Defendants”) in Pennsylvania state

court, asserting violations of

, the Americans with Disabilities Act

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 (“ADA”),

et seq., the Rehabilitation Act,

et seq., and

state law. After the case was removed to the United States District Court for the Eastern

District of Pennsylvania, Defendants moved to dismiss the complaint. The District Court

granted the motions in part and denied them in part (“First Order”). See McDonald-

Witherspoon v. City of Philadelphia (“McDonald I”), No. CV 17-1914,

(E.D. Pa. Aug. 25, 2017).

Plaintiff filed an amended complaint that asserted largely the same claims but

added factual allegations and additional defendants not at issue in this appeal.

Defendants moved to dismiss the amended complaint, which the District Court granted in

part and denied in part (“Second Order”). See McDonald-Witherspoon v. City of

Philadelphia (“McDonald II”), No. CV 17-1914,

(E.D. Pa. Aug. 23,

2018).1

Following discovery, the City, Browne, and Palmer moved for summary judgment

on the surviving claims, which the District Court granted (“Third Order”). See

McDonald-Witherspoon v. City of Philadelphia (“McDonald III”),

(E.D. Pa. 2020).

Plaintiff appeals the portions of the District Court’s orders concerning certain

1 The District Court granted Plaintiff leave to file a second amended complaint but only to identify the names of additional defendants not at issue in this appeal. Plaintiff filed a second amended complaint, but the Court struck portions of it as exceeding the permitted amendments. Plaintiff did not appeal this order. 3 claims against the City, PAPPD, Browne, and Palmer.2

II3

Plaintiff asserts that the District Court erred in its First Order, which dismissed

(1) Plaintiff’s § 1983 “deliberate indifference to serious medical need” claim against

Browne and Palmer; and (2) Plaintiff’s ADA claim against PAPPD. To determine

whether dismissal under Fed. R. Civ. P. 12(b)(6) was warranted, we accept as true and

recite below the complaint’s relevant factual allegations.

In her complaint, Plaintiff alleged that Jones was a “disabled individual, having a

permanent and serious disability diagnosed as paranoid schizophrenia, schizoaffective

disorder, depressive disorder, bipolar disorder, psychotic disorder and/or similar

diagnoses” and that “[t]his mental disorder caused [Jones] to be weaker and more

vulnerable than the general population and in need of special assistance.” J.A. 26

(Complaint) ¶ 9. Plaintiff then alleged that while “on parole/probation for a DUI charge,

[Jones] visited his parole officer Browne where he was seen and handled by Browne and

2 The District Court had jurisdiction under

, 1343, and 1367. We have jurisdiction under

. 3 We review de novo a district court’s order granting a motion to dismiss under Federal Rule of Procedure 12(b)(6). In re Adams Golf, Inc. Sec. Litig.,

, 273 (3d Cir. 2004). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

(2009) (quotation marks omitted). We disregard “a pleading’s legal conclusions” but “assume all remaining factual allegations to be true” and construe them in the light most favorable to the plaintiff. Connelly v. Lane Constr. Corp.,

(3d Cir. 2016). 4 Palmer,” and that Plaintiff “told Browne that [Plaintiff] was on her way to Browne’s

office to pick up [Jones],” but that “by the time she got there, [Jones] had already been

taken away” to jail. J.A. 26 (Complaint) ¶ 12.

A

The District Court dismissed Plaintiff’s § 1983 deliberate indifference to serious

medical need claim, construing it as a “vulnerability to suicide claim” and concluding

that the allegations against Browne and Palmer were “insufficient to plausibly show that

Browne and Palmer acted with reckless indifference to Jones’s vulnerability to suicide.”

McDonald I,

, at *6. We agree that the § 1983 claim warranted

dismissal, but affirm the dismissal on slightly different grounds. Before us, and in her

complaint, Plaintiff asserts a deliberate indifference to serious medical need claim that is

broader than a vulnerability to suicide claim.

“[D]eliberate indifference to serious medical needs of prisoners . . . [is conduct]

proscribed by the Eighth Amendment,” and therefore, “deliberate indifference to a

prisoner’s serious illness or injury states a cause of action under [42 U.S.C.] § 1983.”

Estelle v. Gamble,

(1976). To succeed on this claim, a plaintiff must

demonstrate “(1) that the defendants were deliberately indifferent to [his] medical needs

and (2) that those needs were serious.” Rouse v. Plantier,

(3d Cir.

1999) (citing Estelle,

). The deliberate indifference element requires that

the defendant “recklessly disregard a substantial risk of serious harm,” and therefore

5 negligence or medical malpractice is not enough. Palakovic v. Wetzel,

(3d Cir. 2017) (citations omitted). Generally, deliberate indifference is met when the

defendant “(1) knows of a prisoner’s need for medical treatment but intentionally refuses

to provide it; (2) delays necessary medical treatment based on a non-medical reason; or

(3) prevents a prisoner from receiving needed or recommended medical treatment.”

Rouse,

.

Here, the complaint does not plausibly allege that Browne and Palmer

intentionally refused to provide Jones medical care or otherwise recklessly disregarded a

substantial risk of serious harm. Rather, the complaint reveals that Jones received

medical care precisely because of Browne and Palmer’s decision to detain him. The

adequacy of that medical care, however, is not alleged to be within their control. See

Giddings v. Joseph Coleman Ctr.,

(E.D. Pa. 2007) (holding that

a parole officer’s decision to “take[] [an inmate] to a nearby prison where he would

receive, and actually did receive, immediate medical attention” for a self-inflicted cut

observed the day prior “fall[s] far short of the level of delay and denial of necessary

treatment required to rise to the level of an Eighth Amendment violation”), aff’d,

(3d Cir. 2008) (non-precedential). Thus, the complaint does not plausibly

allege that Browne and Palmer intentionally refused to provide Jones medical care,

delayed providing him medical treatment, or prevented him from receiving medical care.

Therefore, the District Court appropriately dismissed Plaintiff’s deliberate indifference

6 claim.4

B

The District Court also correctly dismissed Plaintiff’s ADA claim against PAPPD

because Eleventh Amendment immunity bars the claim.

The Eleventh Amendment provides that “[t]he Judicial power of the United States

shall not be construed to extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another State, or by Citizens or Subjects of

any Foreign State.” U.S. Const. amend. XI. The “immunity extends to entities that are

considered arms of the state.” Bowers v. Nat’l Collegiate Athletic Ass’n,

(3d Cir. 2007). However, Congress can abrogate the immunity when acting within

its constitutional authority.

. In Title II of the ADA, Congress acted within its

constitutional authority in abrogating the immunity when a Title II claim concerns

“conduct that actually violates the Fourteenth Amendment.” United States v. Georgia,

(2006) (emphasis omitted).

Here, PAPPD’s Eleventh Amendment immunity bars Plaintiff’s ADA Title II

4 Plaintiff included no additional factual allegations in the amended complaint to overcome this dismissal, and her attempts to include additional factual allegations in the second amended complaint exceeded the limited amendments the District Court permitted. See Krantz v. Prudential Invs. Fund Mgmt. LLC,

(3d Cir. 2002) (“A District Court has discretion to deny a plaintiff leave to amend where the plaintiff was put on notice as to the deficiencies in his complaint, but chose not to resolve them.”). Therefore, the First Order’s dismissal is not impacted by the subsequent pleadings. 7 claim. PAPPD is an arm of Pennsylvania. The complaint alleges that employees of

PAPPD “unlawfully” searched, arrested, and incarcerated Jones based upon his mental

disability and race, J.A. 26-27, 29 (Compl. ¶¶ 13, 14, 24, 30), but these conclusory

assertions, without more, are insufficient to plausibly allege that PAPPD violated Jones’

Fourteenth Amendment rights. Therefore, the District Court appropriately dismissed

Plaintiff’s ADA claim against PAPPD.5

III

Plaintiff also appeals the Second Order’s dismissal of Plaintiff’s claim under § 504

of the Rehabilitation Act,

, against PAPPD. Focusing on the allegations

in the amended complaint, her § 504 claim against PAPPD is based on the actions of its

employees, Browne and Palmer.

Section 504 of the Rehabilitation Act provides, in relevant part, that “[n]o . . .

individual with a disability . . . shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance.”

(a). To successfully assert a § 504 claim, a plaintiff must prove, among other things,

that the “disabled” person was “precluded from participating in a program or receiving a

5 To the extent Plaintiff challenges the District Court’s dismissal of her § 1983 equal protection claim against PAPPD, the First Order likewise appropriately dismissed the claim as barred by PAPPD’s Eleventh Amendment immunity. See Kentucky v. Graham,

, 169 n.17 (1985) (explaining that “§ 1983 was not intended to abrogate a State’s Eleventh Amendment immunity”). 8 service or benefit because of [his] disability.” CG v. Pa. Dep’t of Educ.,

(3d Cir. 2013) (citing Chambers ex rel. Chambers v. Sch. Dist. of Philadelphia Bd. of

Educ.,

(3d Cir. 2009)). This element “requires disability to be the sole

cause of discrimination,” which means “an alternative cause is fatal to a[] [Rehabilitation

Act] claim because disability would no longer be the sole cause.”

at 236 n.11.

The amended complaint alleges alternative causes for Browne and Palmer’s

decision to detain of Jones: (1) because of Jones’ psychiatric disability, and (2) for Jones’

own safety because he was unstable and his car was unfit to drive. This alternative cause,

which is unrelated to Jones’ disability, is fatal to Plaintiff’s Rehabilitation Act claim, and

therefore the District Court properly dismissed this claim.

IV6

Plaintiff also appeals the Third Order, which granted summary judgment on her

(1) state-created danger claim against Browne and Palmer; (2) equal protection claim

against Palmer and Browne; (3) Monell claim against the City; and (4) state tort claims

against Browne and Palmer. Discovery produced the factual record upon which the

6 Our review of the Third Order granting summary judgment is plenary, Mylan Inc. v. SmithKline Beecham Corp.,

(3d Cir. 2013), and we view the facts and make all reasonable inferences in favor of the nonmovant Plaintiff, Hugh v. Butler Cty. Family YMCA,

(3d Cir. 2005). Summary judgment is appropriate where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). On summary judgment, the moving party is entitled to judgment as a matter of law when the nonmoving party fails to make “a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett,

(1986). 9 summary judgment motions were based, and we next recite the material facts.

Jones had a history of drug use and mental illness, including schizophrenia and

depression. One day while on probation7 and living with Plaintiff, Jones had a manic

episode and exhibited signs of paranoia. Concerned for Jones’ safety, his family

members attempted to disable his vehicle to prevent him from leaving the house. They

were unsuccessful, and Jones drove away.

Plaintiff, afraid for her son’s safety, called Jones’ probation officer, Browne,

asking that she invite Jones to her office where Plaintiff would meet Jones and

involuntarily commit him. Jones arrived at Browne’s office in a “manic” state, with

smoke emanating from the hood of his car. J.A. 382. Browne notified Plaintiff that

Jones had arrived, but after over two hours of Jones becoming increasingly agitated,

Palmer obtained an arrest warrant based on Jones’ probation violation for having an open

bill related to a DUI offense committed while on probation. By the time Plaintiff arrived

at the office, Jones had already been taken to jail.

At the jail, Jones met with several social workers and healthcare professionals who

prescribed, among other things, blood pressure medication, which Jones was allowed to

keep on his person (“KOP”). During his initial and follow-up evaluations, Jones denied

both having suicidal thoughts and engaging in prior suicide attempts. Four days after

7 Jones was on parole for an aggravated assault conviction when he committed a DUI, but the parties usually refer to him as having been on probation. 10 entering the jail, Jones overdosed on the blood pressure medication and died.

A

We will first examine Plaintiff’s Fourteenth amendment state-created danger

claim. To prevail, a plaintiff must prove: (1) “the harm ultimately caused was

foreseeable and fairly direct,” (2) “the state actor acted in willful disregard for the safety

of the [victim],” (3) “there existed some relationship between the state and the [victim],”

and (4) “the state actors used their authority to create an opportunity that otherwise would

not have existed for the [harm] to occur.” Est. of Smith v. Marasco,

, 153

(3d Cir. 2005) (citations omitted). The second element is satisfied only when the state

actor’s conduct “shocks the conscience.” Id. The “exact degree of wrongfulness

necessary to reach the ‘conscience-shocking’ level depends upon the circumstances of a

particular case,” and when the state actor is in a “hyperpressurized environment” (as

opposed to a situation where the state actor has “the luxury of proceeding in a deliberate

fashion”) conscience-shocking behavior usually requires a showing that the state official

“deliberately harmed the victim.” Id. (citation omitted).

Here, Browne and Palmer were in a hyperpressurized environment. One officer

observed Jones arrive at PAPPD’s office driving “very erratically, driving from one side

to the other trying to park the vehicle almost hitting people out of control,” J.A. 439, with

his car smoking from the hood. Browne explained that when Jones arrived at her office,

he was in a “manic” state, his “demeanor was just kind of all over the place, [he] was

11 very loud,” “he was bouncing from question to question,” and “[a]t one point, he bust out

in song and sung [Browne] a full song very loudly.” J.A. 382. Browne’s supervisor,

Palmer, also met with Jones and explained that Jones was “extremely agitated,”

“rambling,” “pushing the table,” and that he “banged the wall” with his hands. J.A. 429-

30. Palmer recounted that Jones was frustrated because he “wanted to go to New York to

save his brother from ISIS.” J.A. 430. After over two hours of Jones becoming

increasingly agitated and expressing an intent to leave the state in an unfit automobile,

Browne and Palmer detained Jones for a violation of probation and took him “into

custody . . . for his own safety.” J.A. 237. Given Jones’ behavior and Browne and

Palmer’s concerns for his safety, no reasonable jury could have found that Browne and

Palmer’s decision to detain Jones, particularly given that they obtained a warrant for his

arrest based upon an independent violation of probation, was conscience-shocking

behavior. Therefore, the District Court properly granted summary judgment in favor of

Browne and Palmer on Plaintiff’s state-created danger claim.

B

The District Court also correctly granted summary judgment in favor of Browne

and Palmer on Plaintiff’s equal protection “class of one” claim.

To prevail on a Fourteenth Amendment equal protection clause claim under a

“class of one” theory, a plaintiff must prove “(1) the defendant treated him differently

from others similarly situated, (2) the defendant did so intentionally, and (3) there was no

12 rational basis for the difference in treatment.” Hill v. Borough of Kutztown,

(3d Cir. 2006) (citing Village of Willowbrook v. Olech,

(2000)).

Here, Plaintiff has not satisfied the first and third elements. Plaintiff failed to

identify similarly situated individuals who Browne and Palmer treated differently. See

id. at 239. Additionally, given Jones’ behavior at the probation office coupled with the

fact that Browne and Palmer learned that Jones “was in technical violation [of his

probation],” J.A. 431, and that he intended to leave the state, which itself would violate

the terms of his probation, no reasonable juror could find that Browne and Palmer had no

rational basis for detaining Jones. Therefore, the District Court properly granted

summary judgment in favor of Browne and Palmer on this claim.

C

The District Court also correctly granted summary judgment in favor of the City

on Plaintiff’s § 1983 Monell claim.

Under Monell, a plaintiff “must demonstrate that the violation of his rights was

caused by either a policy or a custom of the municipality.” Berg v. Cnty. of Allegheny,

(3d Cir. 2000) (citing Monell v. Dep’t of Soc. Servs.,

(1978)). Thus, the plaintiff must “identif[y] a municipal policy or custom [that he

claims violates his rights and then . . .] he must demonstrate that, through its deliberate

conduct, the municipality was the ‘moving force’ behind the injury alleged.”

at 276

13 (quotation marks and citation omitted). If “the policy or custom does not facially violate

federal law, causation can be established only by demonstrat[ing] that the municipal

action was taken with ‘deliberate indifference’ as to its known or obvious consequences.”

(quotation marks and citation omitted). In other words, “[a] showing of simple or

even heightened negligence will not suffice.”

There are two policies that may be implicated here, but neither provides a basis for

relief. First, the City maintained a policy on inmate suicide prevention (the “Policy”).

The Policy instructs “[a]ll correctional staff [to] remain alert for indications that inmates

are possible self-injury risks” and requires them to conduct “a formal, self-injury risk

assessment process, and standardized observation and intervention procedures” to ensure

proper monitoring. J.A. 443.8 Here, staff members conducted two self-harm evaluations

of Jones during his four-day imprisonment, and, during both evaluations, Jones denied

having suicidal thoughts or engaging in prior suicide attempts. Given these denials,

which contributed to a staff member’s assessment that Jones’ “[s]uicide risk appear[ed]

low at this time,” J.A. 258, no reasonable juror could find that the City was the “moving

force” behind Jones’ suicide, Berg,

, or that the City was deliberately

indifferent to a known or obvious risk of Jones committing suicide.

The second policy involves allowing inmates to keep certain medications in their

8 Plaintiff does not argue that the Policy is facially invalid, but instead asserts that staff acting under the Policy improperly failed to prevent Jones’ suicide. 14 possession, rather than requiring them to obtain the medication from the dispensary. Dr.

Vivian Gandy, a healthcare provider at the jail, explained that “[n]ormally for specific

medication, narcotics, seizure meds, those meds would not be given KOP, but for

hypertensive meds, that could be KOP unless there was some specific reason for that

individual not to have it on [his] person” and “[t]here was no reason” for her to order ‘no

KOP’ here because she did not know of Jones’ prior suicide attempts and Jones did not

say that he was having suicidal thoughts. D.C. Dkt. No. 93-14. Even if in hindsight the

healthcare professionals acting under these policies improperly assessed Jones’ suicide

risk before permitting him to keep his blood pressure medication on his person, this does

not establish that there was a policy of indifference that would subject the City to Monell

liability. See Palakovic,

(explaining that where there is a “dispute . . .

over the adequacy of the treatment, federal courts are generally reluctant to second guess

medical judgments and to constitutionalize claims which sound in state tort law,” and will

“[d]efer[]” to prison medical authorities’ “diagnosis and treatment of patients” (quotation

marks omitted)). Therefore, the District Court properly granted summary judgment in

favor of the City on Plaintiff’s Monell claim.

D

Finally, the District Court correctly granted summary judgment in favor of

Browne and Palmer on Plaintiff’s state law tort claims because they were protected by

15 sovereign immunity when their actions led to Jones’ arrest and incarceration.

Pennsylvania “officials and employees acting within the scope of their duties[]

shall continue to enjoy sovereign immunity and official immunity and remain immune

from suit except [when Pennsylvania] specifically waive[s] the immunity.” 1 Pa. Cons.

Stat. Ann. § 2310. Pennsylvania looks to the Restatement (Second) of Agency to

determine whether conduct is within the scope of one’s employment. See Butler v. Flo-

Ron Vending Co.,

(Pa. Super. Ct. 1989). An employee acts within the

scope of her employment when the employee’s conduct (1) “is the kind [the employee] is

employed to perform,” (2) “occurs substantially within the authorized time and space

limits,” and (3) “is actuated, at least in part, by a purpose to serve the [employer].”

Brumfield v. Sanders,

(3d Cir. 2000) (quoting Restatement (Second)

of Agency § 228, analyzing Pennsylvania sovereign immunity). Actions that are not

expressly authorized by the employer may still be within the scope of employment “if

they are clearly incidental to the [employer]’s business.” Shuman Estate v. Weber,

(Pa. Super. Ct. 1980).

Plaintiff does not dispute that Browne and Palmer obtained a warrant for Jones’

arrest for a technical violation of probation or that they did so during their workday and

while they were at the PAPPD office. Plaintiff nevertheless argues that Browne and

Palmer were not acting within the scope of their employment because they “lied to the

judge directly” in securing the warrant. Appellant Br. at 23. Plaintiff, however, concedes

16 that “attempting to leave the state . . . is a technical [] violation” of Jones’ supervision,

Appellant Br. at 23, and the record shows that Jones “wanted to go to New York to save

his brother from ISIS,” J.A. 430. Plaintiff also does not dispute that Jones had been

arrested for a DUI offense, which was a violation of his probation. Given Jones’ stated

intention to leave Pennsylvania, which itself would violate his probation, and the fact his

recent DUI arrest violated his probation, nothing in the record suggests that Browne and

Palmer sought the warrant for a reason unconnected to their employment. Because no

reasonable juror could find that Browne and Palmer acted outside the scope of their

employment, the District Court properly held that they were entitled to sovereign

immunity on Plaintiff’s state law claims.9

V

For the foregoing reasons, we will affirm.

9 We will not consider Plaintiff’s Fourth Amendment argument against Browne and Palmer because Plaintiff did not plead a Fourth Amendment unlawful seizure claim against them in either her initial or first amended complaint. Furthermore, her allegations concerning this claim in the second amended complaint were struck as beyond the scope of the permitted amendment and Plaintiff did not appeal the order striking those allegations. See Hamer v. LivaNova Deutschland GmbH,

, 179 n.23 (3d Cir. 2021) (“Because those claims were not raised in his complaint, we cannot consider them now as a basis for appeal.”). 17