Marshall v. Columbia Lea Regional Hosp.

• Decision Date: 09 January 2007
• Docket Number: No. 05-2173.,05-2173.
• Citation: 474 F.3d 733
• Parties: Jimmie MARSHALL, Plaintiff-Appellee, v. COLUMBIA LEA REGIONAL HOSPITAL; Jane Doe, Nurse; City of Hobbs; Tony Knott, Captain, Defendants, Walter Roye, Sergeant; Rodney Porter, Officer, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

474 F.3d 733

Jimmie MARSHALL, Plaintiff-Appellee, v. COLUMBIA LEA REGIONAL HOSPITAL; Jane Doe, Nurse; City of Hobbs; Tony Knott, Captain, Defendants Walter Roye, Sergeant; Rodney Porter, Officer, Defendants-Appellants.

No. 05-2173.

United States Court of Appeals, Tenth Circuit.

January 9, 2007.

COPYRIGHT MATERIAL OMITTED

Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM, for Defendants-Appellants.

Robert J. Gorence, Gorence & Oliveros, Albuquerque, NM, for Plaintiff-Appellee.

Before HENRY, BRISCOE, and LUCERO, Circuit Judges.

HENRY, Circuit Judge.

City of Hobbs, New Mexico, police officers Rodney Porter and Sergeant Walter Pope, appeal a jury verdict in favor of plaintiff Jimmie Marshall for violation of his Fourth Amendment right to be free of unreasonable search and seizure. The officers do not dispute that they violated Mr. Marshall's Fourth Amendment rights when they ordered a warrantless, nonconsensual blood test for an alleged misdemeanor. Nevertheless, the officers contend the district court erred in denying their post-verdict motion for judgment as a matter of law based on qualified immunity because no clearly established law precluded the test. We affirm the district court.

I. BACKGROUND

A. Factual history

We described the factual history of this case—including some of the troubles of the City's police department—in Marshall v. Columbia Lea Regional Hospital, 345 F.3d 1157 (10th Cir.2003) ("Marshall I"):

On December 26, 1996, Mr. Marshall, an African-American self-employed electrician, was driving his gold Toyota pickup in Hobbs, New Mexico, when he noticed a police car parked by the side of the road with its lights off. According to Mr. Marshall, the police officer—later identified as Officer Rodney Porter— followed his pickup for several blocks. While Mr. Marshall was stopped at an intersection with his left-turn signal blinking, Officer Porter pulled up alongside the pickup and "gaz[ed] intently at [Marshall's] face," which Marshall infers was for the purpose of ascertaining his race. Officer Porter contends that Mr. Marshall failed to stop at the stop sign, which Mr. Marshall denies.

Officer Porter then activated his emergency lights, but Mr. Marshall continued to drive for more than two miles before coming to a stop at his residence. Mr. Marshall claims that he evaded the officer for several miles because he was fearful to stop his vehicle outside of the presence of witnesses, on account of the reputation of the Hobbs Police Department for racist practices. At that time, Mr. Marshall did not know Officer Porter and did not have any information about him. In the criminal complaint filed as a result of the incident, Officer Porter stated that Mr. Marshall accelerated to 100 miles per hour, drove through a four-way stop, and weaved from lane to lane, which Marshall denies. However, Officer Porter made no mention of these allegations in the affidavit he filed in this case describing the events of December 26, 1996, nor were they mentioned in Defendants' later pleadings.

On the street in front of Mr. Marshall's residence, the two men emerged from their vehicles. Officer Porter had drawn his pistol. His first words were to accuse Mr. Marshall of being on crack, which Marshall has consistently denied. Defendants have proffered no evidence in support of this accusation. Officer Porter states that Mr. Marshall had the odor of alcohol on his breath, which Marshall does not deny, stating that he had imbibed one drink with his brother Alfred. Officer Porter arrested Mr. Marshall on various charges, including the traffic violation, driving under the influence, and resisting arrest. On the written citation form, in the space for indicating the gender of the person receiving the citation, Officer Porter wrote "B/M," presumably meaning black male.

After arresting Mr. Marshall, Officer Porter proceeded to search Marshall's truck. The search revealed a .40 caliber pistol under the driver's seat (apparently lawful), and Officer Porter claimed also to have found a small amount of a "green leafy substance," a contention Marshall denies. Mr. Marshall was taken to the city jail, where several sobriety tests were performed on him. Mr. Marshall passed two breathalyzer tests, but had difficulty completing the recitation of the alphabet (the "ABC test"). There is conflicting testimony about whether the horizontal gaze stymosis test was administered, and whether Mr. Marshall passed the finger-number test.

Officer Porter then transported Mr. Marshall to the Columbia Lea Regional Hospital for blood testing. Mr. Marshall claims his request to put on his shoes was refused, despite the winter weather, and that his socks became soaked with urine that had pooled on the back floor of the police car. While waiting for Sergeant Roye to arrive at the hospital, Officer Porter interrogated the handcuffed Mr. Marshall for over twenty minutes, again accusing him of being on crack. ("I know you came from a crack house. You might as well admit it, because I know you went there to get some crack.") During this interrogation Mr. Marshall stated that the blood test might test positive for marijuana.

Thereafter, Sergeant Roye and Nurse Iris Goad entered the room. When Nurse Goad approached Mr. Marshall, he said, "Ma'am, you don't have my consent oral or written to take my blood. But if you're going-and I rather you not stick me with that needle. But if you're go going to take my blood, I'm not going to resist, but you don't have my consent oral or written." At that point Sergeant Roye told Nurse Goad, "Go-ahead and give it to him. I'll consent." Mr. Marshall then held his handcuffed arms in front of him for the blood test. The record contains a "consent form," initialed by Officer Porter, which states: "Refused to sign. Gave verbal consent." Two vials of blood were taken. The laboratory tests subsequently found no evidence of alcohol or other illegal drugs, but revealed the presence of THC, the active ingredient in marijuana, in Marshall's bloodstream.

After the events in the hospital, Mr. Marshall was returned to the jail, where he was confined for several hours before his mother obtained his release on bail. Later, he was charged in a criminal complaint with (i) possession of a controlled substance (marijuana), (ii) resisting, evading or obstructing a police officer, (iii) negligent use of a firearm (possession while intoxicated), (iv) reckless driving, (v) running a stop sign, and (vi) driving under the influence. In May 1997, the DA entered a nolle prosequi because the evidence obtained in the case had been suppressed. The record does not contain any further information about that proceeding, or the legal basis for the suppression of the evidence.

Id. at 1161 (citations omitted).

B. Procedural history

In November 1999, Mr. Marshall filed a § 1983 action in federal district court against the officers, the police chief, the hospital, and the nurse who administered the blood test. In June 2002, the district court granted summary judgment for the defendants. In Marshall I, we reversed the district court in part, holding that critical questions of fact remained with respect to Mr. Marshall's Equal Protection, Fourth Amendment, and related state-law claims against the officers and the City. Id. at 1181.

On remand, the district court held a bifurcated trial. In the first phase of the trial, which involved claims against the officers, the jury rendered a special verdict in favor of Mr. Marshall on his Fourth Amendment claim against Officers Porter and Roye. The jury awarded Mr. Marshall compensatory damages of $90,000 from both Officer Porter and Officer Roye, and punitive damages in the amount of $300,000 against Officer Porter and $100,000 against Officer Roye.

In the second phase, the court granted judgment as a matter of law to the City on the supervisory and municipal liability claims. Following entry of judgment, the officers filed a renewed motion for judgment as a matter of law based on qualified immunity. The district court denied the motion.

II. DISCUSSION

The officers contend that the district court erred when it denied their post-judgment motion for judgment as a matter of law based on qualified immunity. They maintain that, at the time they ordered the nurse to draw Mr. Marshall's blood against his will, no clearly established law precluded a warrantless nonconsensual blood test. Hence, they argue that they are entitled to qualified immunity.

A. Standard of review

We review de novo a district court's denial of a motion for judgment as a matter of law. Escue v. N. Okla. Coll., 450 F.3d 1146, 1156 (10th Cir.2006). The Supreme Court has recognized that qualified immunity embodies "an entitlement not to stand trial or face the other burdens of litigation, conditioned on the resolution of the essentially legal question whether the conduct of which the plaintiff complains violated clearly established law." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

1. Rule 50(a) pre-verdict motion requirements.

We begin by sua sponte addressing one procedural hurdle. Although the officers raised the qualified immunity defense in their answer to Mr. Marshall's amended complaint, in their motion for summary judgment prior to the first appeal in this case, and later in their post-verdict motion for judgment as a matter of law under Rule 50(b)(1)(C), the officers apparently did not raise qualified immunity in their pre-verdict Rule 50(a) motion,¹ which is a prerequisite to a post-verdict motion under Rule 50(b).² The renewed motion under Rule 50(b) cannot assert grounds for relief not asserted in the original motion. See Anderson v. United Tel. Co., 933 F.2d 1500, 1503 (10th Cir.1991) (using the "directed verdict" and "judgment n.o.v." nomenclature of Rule 50 prior to its amendment in 1991); McCardle v. Haddad, 131 F.3d 43, 51 (2d Cir.1997) ("In sum, a posttrial motion...