Sullivan v. Bornemann

• Decision Date: 14 September 2004
• Docket Number: No. 03-2479.,03-2479.
• Parties: Jeffrey J. SULLIVAN, Plaintiff-Appellant, v. Jon BORNEMANN and Ed Whealon, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

384 F.3d 372

Jeffrey J. SULLIVAN, Plaintiff-Appellant, v. Jon BORNEMANN and Ed Whealon, Defendants-Appellees.

No. 03-2479.

United States Court of Appeals, Seventh Circuit.

Argued January 14, 2004.

Decided September 14, 2004.

Appeal from the United States District Court for the Eastern District of Wisconsin, William C. Griesbach, J Brian C. Hough (argued), Robinson Law Firm, Appleton, WI, for Plaintiff-Appellant.

Gregg T. Heidenreich, Stilp & Cotton, Brookfield, WI, for Defendants-Appellees.

Before FLAUM, Chief Judge, and POSNER and DIANE P. WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

After Jeffrey Sullivan was arrested for disorderly conduct, the Shawano County Jail in Wisconsin refused to admit him without a medical clearance, because of his high breathalyzer test result. To obtain that clearance, officers Jon Bornemann and Ed Whealon took Sullivan to the emergency room of a local hospital. After Sullivan failed voluntarily to produce a urine sample, the emergency room doctor ordered a catheterization. At the direction of medical personnel, Bornemann and Whealon physically restrained Sullivan during the brief procedure.

Believing that the officers' actions violated his constitutional rights, Sullivan brought suit under 42 U.S.C. § 1983 and added a supplemental battery claim under Wisconsin law. Ruling on stipulated facts, the district court concluded that even if Bornemann and Whealon were not authorized to restrain Sullivan, qualified immunity shielded the officers from any liability. We affirm the judgment based on our conclusion that no constitutional violation occurred, which makes it unnecessary for us to reach the second part of the qualified immunity inquiry.

I

On November 14, 1999, Bornemann arrested Sullivan and charged him with disorderly conduct. Sullivan was eventually handcuffed after initially resisting arrest. A pat-down search of Sullivan's person turned up a marijuana pipe. Bornemann then transported Sullivan to the Shawano County Jail for processing, where jail personnel administered a breathalyzer test. When Sullivan's test registered a .25, indicating a high level of intoxication, the jail refused to admit him without a medical clearance. Bornemann transported Sullivan to the Shawano Medical Center emergency room.

Upon arrival at the hospital, Sullivan became so uncooperative and verbally abusive that Bornemann called for assistance. Whealon responded to the call, and the two officers accompanied Sullivan into the emergency room. Kathy Actenberg, a certified nurse employed by the Medical Center, took Sullivan's vital signs and noted that he had an elevated heart rate and blood pressure in the upper range of a normal reading. Nurse Actenberg also observed that Sullivan was uncooperative, angry, and combative, and that he seemed disoriented and intoxicated. She knew that Sullivan had a high breathalyzer result and had been found with a marijuana pipe.

After Nurse Actenberg reported these findings to emergency room doctor Rajeshwar Hanmiah, also employed by the Medical Center, Dr. Hanmiah directed her to obtain a urine sample from Sullivan. Dr. Hanmiah testified that he gave this order because Sullivan's behavior was erratic and inconsistent with his level of intoxication and elevated heart rate. Further, Dr. Hanmiah was concerned that Sullivan may have ingested other drugs that would interact with the alcohol in his system. Dr. Hanmiah did not, however, document these concerns on Sullivan's medical chart.

After receiving instructions from Dr. Hanmiah, Nurse Actenberg asked Sullivan to produce a urine sample voluntarily. Sullivan tried but ultimately failed to do so, even after Nurse Actenberg ran water in the bathroom sink to assist him. After half an hour had passed, Dr. Hanmiah directed Nurse Actenberg to obtain a sample by catheterization, a routine non-surgical procedure. Dr. Hanmiah testified that he ordered the procedure based on medical necessity after reviewing Sullivan's physical appearance, disposition, and vital signs.

Nurse Actenberg explained to officers Bornemann and Whealon that Sullivan's ability for movement had to be restricted to minimize the risk of injury and infection during the brief procedure. She did not solicit, nor did the officers offer, any opinions or suggestions about Sullivan's medical care. They played no role in Dr. Hanmiah's decision to order a catheterization. Moreover, Bornemann specifically informed Sullivan that the urine sample would not be used for criminal prosecution or other evidentiary purposes.

After Sullivan was placed on an emergency room bed, Bornemann restrained Sullivan by placing his arms around Sullivan's legs and placing his upper body across Sullivan's legs, using his body weight to hold Sullivan's legs stationary. Whealon applied a pressure point technique consistent with his law enforcement training to minimize Sullivan's movement. The technique involved Whealon's placing his index finger under the bridge of Sullivan's nose and applying pressure. While Sullivan was restrained by the officers, Nurse Actenberg passed a catheter up Sullivan's urethra to obtain a urine sample. The entire process lasted approximately one minute, with the actual catheterization taking between 4-6 seconds. Subsequent to the procedure, neither Bornemann nor Whealon had any further physical contact with Sullivan. After receiving a medical clearance, Bornemann transported Sullivan back to the Shawano County Jail for processing.

Sullivan never consented to the catheterization and claims that he suffered pain from the procedure and from the pressure point technique applied by Whealon. This prompted him to file the present § 1983 action against the two police officers, Dr. Hanmiah, Nurse Actenberg, and the Shawano Medical Center, alleging violations of his federal constitutional rights. Sullivan alleged a violation of his Fourth Amendment protections against unreasonable search and seizure and a violation of his due process right to refuse unwanted medical treatment. He also asserted a battery claim against officers Bornemann and Whealon and a medical malpractice claim against the hospital defendants.

The district court granted summary judgment in favor of Dr. Hanmiah, Nurse Actenberg, and the Shawano Medical Center on both the § 1983 claims (because the conduct alleged was not done under color of state law) and the medical malpractice claims (because no finder of fact could conclude that the hospital defendants had violated any applicable standards of care). Later, after the case was transferred to a different district judge, the court dismissed the federal and state claims against officers Bornemann and Whealon on qualified immunity grounds.

The district court's analysis first considered the source of authority that permitted Dr. Hanmiah to order the catheterization notwithstanding Sullivan's refusal to consent. It concluded that the physician may not have faced a medical emergency that justified ignoring Sullivan's refusal to consent to the catheterization procedure. Imputing this finding to the police officers, the court concluded that if the doctor's catheterization order was not legally justified, Bornemann and Whealon may not have been authorized to assist by restraining Sullivan.

The court ultimately held, however, that the officers were shielded from liability on the basis of qualified immunity: even if Dr. Hanmiah's medical order was not justified as a matter of law, the defendant officers did not violate any of Sullivan's clearly established rights by restraining him because a rule to the contrary would force police officers to second-guess the medical judgment of emergency room physicians. The district court dismissed the constitutional claims against Bornemann and Whealon on this ground. The district court also dismissed the battery claim, concluding that Wisconsin law immunized the officers from liability because they acted in a discretionary capacity.

Sullivan appeals only from the rulings concerning Bornemann and Whealon, leaving undisturbed the district court's resolution of his federal and state law claims against the hospital defendants.

II

The district court entered its judgment after receiving a stipulation of the facts from the parties. Although the parties suggest that we should review the judgment as if the court had granted summary judgment, we have explained that the proper standard of review that governs this procedure, more akin to a bench trial than anything else, is found in Federal Rule of Civil Procedure 52(a). Hess v. Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th Cir.2001) (internal citations omitted). "As we would after a bench trial, we will review the district court's legal conclusions de novo and review any factual inferences the district court made from the stipulated record as well as its application of the law to the facts for clear error." Id.; Fillmore v. Page, 358 F.3d 496, 503 (7th Cir.2004).

We review the district court's grant of qualified immunity de novo. Delgado v. Jones, 282 F.3d 511, 515 (7th Cir.2002). In Saucier v. Katz, 533 U.S. 194, 121 S.Ct 2151, 150 L.Ed.2d 272 (2001), the Supreme Court explained the two-step procedure federal courts must use in considering a qualified immunity defense. Id. at 200, 121 S.Ct. 2151. "[T]he first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered on a more specific level...." Id. The threshold question is thus whether the facts alleged here, taken in the light most favorable to Sullivan, show that the officers' conduct violated Sullivan's constitutional rights. Saucier, 533 U.S. at 200, 121 S.Ct. 2151; Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). We conclude that the answer is no.

Sullivan is not asking us to decide whether the Shawano...