384 F.3d 372 (7th Cir. 2004), 03-2479, Sullivan v. Bornemann

Docket Nº:03-2479.
Citation:384 F.3d 372
Party Name:Jeffrey J. SULLIVAN, Plaintiff-Appellant, v. Jon BORNEMANN and Ed Whealon, Defendants-Appellees.
Case Date:September 14, 2004
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 372

384 F.3d 372 (7th Cir. 2004)

Jeffrey J. SULLIVAN, Plaintiff-Appellant,


Jon BORNEMANN and Ed Whealon, Defendants-Appellees.

No. 03-2479.

United States Court of Appeals, Seventh Circuit

September 14, 2004

Argued Jan. 14, 2004.

Page 373

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.


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

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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...

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