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

Docket Nº03-2479.
Citation384 F.3d 372
Party NameJeffrey J. SULLIVAN, Plaintiff-Appellant, v. Jon BORNEMANN and Ed Whealon, Defendants-Appellees.
Case DateSeptember 14, 2004
CourtUnited States Courts of Appeals, United States Court of Appeals (7th Circuit)

Page 372

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

Jeffrey J. SULLIVAN, Plaintiff-Appellant,

v.

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.

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

Page 374

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

Page 375

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...

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41 practice notes
  • 364 F.Supp.2d 747 (N.D.Ill. 2005), 04 C 3307, White v. Airline Pilots Ass'n., Intern.
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • April 8, 2005
    ...in which the parties have submitted briefs and supporting exhibits which constitute the record in this case. See Sullivan v. Bornemann, 384 F.3d 372, 375 (7th Cir.2004) (noting that a district court decision, rendered after reviewing the stipulated facts of the parties, was more akin to a b......
  • 575 F.Supp.2d 892 (N.D.Ill. 2008), 05 C 7314, Young v. Verizon's Bell Atlantic Cash Balance Plan
    • United States
    • August 28, 2008
    ...in which the parties submitted briefs and the administrative record, which constitute the record in this case. See Sullivan v. Bornemann, 384 F.3d 372, 375 (7th Cir.2004) (noting that a district court decision, rendered after reviewing the stipulated facts of the parties, was more akin to a......
  • 448 F.Supp.3d 1002 (W.D.Wis. 2020), 18-cv-537-jdp, Cibulka v. City of Madison
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • March 23, 2020
    ...interest in ensuring that individuals brought to the jail do not need immediate medical care. See Sullivan v. Bornemann, 384 F.3d 372, 376 (7th Cir. 2004) (explaining that jail had medical clearance procedure because "[w]ithout such a procedure, law enforcement offi......
  • Parker v. Colvin, 051214 ILNDC, 13-cv-00114
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 12, 2014
    ...Hofslien, 439 F.3d at 377 (citations omitted). [191] R. at 316. [192] Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (quoting Rice, 384 F.3d at 372)(noting that if the ALJ "minimally articulates" her reasons for rejecting the treating physician's opinion, her decision must st......
  • Request a trial to view additional results
37 cases
  • 364 F.Supp.2d 747 (N.D.Ill. 2005), 04 C 3307, White v. Airline Pilots Ass'n., Intern.
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • April 8, 2005
    ...in which the parties have submitted briefs and supporting exhibits which constitute the record in this case. See Sullivan v. Bornemann, 384 F.3d 372, 375 (7th Cir.2004) (noting that a district court decision, rendered after reviewing the stipulated facts of the parties, was more akin to a b......
  • 575 F.Supp.2d 892 (N.D.Ill. 2008), 05 C 7314, Young v. Verizon's Bell Atlantic Cash Balance Plan
    • United States
    • August 28, 2008
    ...in which the parties submitted briefs and the administrative record, which constitute the record in this case. See Sullivan v. Bornemann, 384 F.3d 372, 375 (7th Cir.2004) (noting that a district court decision, rendered after reviewing the stipulated facts of the parties, was more akin to a......
  • 448 F.Supp.3d 1002 (W.D.Wis. 2020), 18-cv-537-jdp, Cibulka v. City of Madison
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • March 23, 2020
    ...interest in ensuring that individuals brought to the jail do not need immediate medical care. See Sullivan v. Bornemann, 384 F.3d 372, 376 (7th Cir. 2004) (explaining that jail had medical clearance procedure because "[w]ithout such a procedure, law enforcement offi......
  • Parker v. Colvin, 051214 ILNDC, 13-cv-00114
    • United States
    • Federal Cases United States District Courts 7th Circuit Northern District of Illinois
    • May 12, 2014
    ...Hofslien, 439 F.3d at 377 (citations omitted). [191] R. at 316. [192] Berger v. Astrue, 516 F.3d 539, 545 (7th Cir. 2008) (quoting Rice, 384 F.3d at 372)(noting that if the ALJ "minimally articulates" her reasons for rejecting the treating physician's opinion, her decision must st......
  • Request a trial to view additional results
4 books & journal articles
  • FORCED CATHETERIZATION: A METHOD OF SUBSTANCE TESTING THAT 'SHOCKS THE CONSCIENCE' SHOULD BE DISALLOWED IN ITS ENTIRETY.
    • United States
    • South Dakota Law Review Vol. 65 Nbr. 1, March 2020
    • March 22, 2020
    ...this comment is not concerned with forced urinary catheterization for purposes other than substance testing. Cf. Sullivan v. Bomemann, 384 F.3d 372, 373-74, 377 (7th Cir. 2004) (addressing catheterizations done by hospital personnel for medical clearance before accepting a suspect into coun......
  • Sullivan v. Bornemann.
    • United States
    • Corrections Caselaw Quarterly Nbr. 32, November 2004
    • November 1, 2004
    ...Appeals Court MEDICAL SCREENING Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004). An arrestee brought an action against police officers and hospital staff. He had been arrested for disorderly conduct but jail staff refused to admit him to confinement without medical clearance because of ......
  • Sullivan v. Bornemann.
    • United States
    • Corrections Caselaw Quarterly Nbr. 32, November 2004
    • November 1, 2004
    ...Appeals Court RESTRAINTS RIGHT TO REFUSE Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004). An arrestee brought an action against police officers and hospital staff. He had been arrested for disorderly conduct but jail staff refused to admit him to confinement without medical clearance be......
  • Sullivan v. Bornemann.
    • United States
    • Corrections Caselaw Quarterly Nbr. 32, November 2004
    • November 1, 2004
    ...Appeals Court INTAKE SCREENING Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004). An arrestee brought an action against police officers and hospital staff. He had been arrested for disorderly conduct but jail staff refused to admit him to confinement without medical clearance because of h......