Brownell v. Figel

• Decision Date: 17 December 1991
• Docket Number: No. 90-3160,90-3160
• Citation: 950 F.2d 1285
• Parties: Donald W. BROWNELL, Plaintiff-Appellant, v. Dan FIGEL, G.J. Roth, Steve McAllister, T. Bird, J. Bickel, Adams Township, Barry Gerig, as Trustee of Adams Township, S. McAllister, and T. Schulz, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1285

950 F.2d 1285

Donald W. BROWNELL, Plaintiff-Appellant, v. Dan FIGEL, G.J. Roth, Steve McAllister, T. Bird, J. Bickel Adams Township, Barry Gerig, as Trustee of Adams Township, S. McAllister, and T. Schulz Defendants-Appellees.

No. 90-3160.

United States Court of Appeals Seventh Circuit.

Argued Sept. 6, 1991.

Decided Dec. 17, 1991.

Robert L. Thompson, Peebles, Thompson, Rogers & Skekloff, Charles W. McNagny, argued, Fort Wayne, Ind., for plaintiff-appellant.

David R. Steiner, Jim Fenton, James P. Posey, Beers, Mallers, Backs, Salin & Larmore, Alan VerPlanck, Gary J. Rickner, John Lyons, argued, Barrett & McNagny, John O. Feighner, Haller & Colvin, Fort Wayne, Ind., for Daniel L. Figel.

David R. Steiner, Jim Fenton, James P. Posey, Beers, Mallers, Backs, Salin & Larmore, John O. Freighner, Haller & Colvin, Fort Wayne, Ind., for G.J. Roth.

David R. Steiner, Jim Fenton, James P. Posey, Beers, Mallers, Backs, Salin & Larmore, Alan VerPlanck, Gary J. Rickner, John Lyons, Barrett & McNagny, John O. Freighner, Haller & Colvin, Fort Wayne, Ind., for J. Bickel.

David R. Steiner, Jim Fenton, Robert T. Keen, Jr., Miller, Carson & Boxberger, James P. Posey, Beers, Mallers, Backs, Salin & Larmore, Alan VerPlanck, Gary J. Rickner, John Lyons, Barrett & McNagny, John O. Feighner, Haller & Colvin, Fort Wayne, Ind., for Barry Gerig.

Jim Fenton, Edward L. Murphy, Jr., argued, Miller, Carson & Boxberger, Alan VerPlanck, John Lyons, Barrett & McNagny, Fort Wayne, Ind., for S. McAllister and T. Schulz.

David R. Steiner, Jim Fenton, Robert T. Keen, Jr., Edward Murphy, Jr., Miller, Carson & Boxberger, Fort Wayne, Ind., for Adams Township.

Before CUDAHY and FLAUM, Circuit Judges, and ROSZKOWSKI, Senior District Judge. ^*

FLAUM, Circuit Judge.

Driving under the influence of alcohol, Donald W. Brownell collided with a guardrail in the wee hours of the morning. County officials delivered him to the hospital and then to the county lockup, where he awoke the next morning a quadriplegic. Brownell alleges that sometime during that morning, the sheriff, the police, the emergency medical technicians (E.M.T.), and the county jailors engaged in conduct responsible for his condition. Pursuant to 42 U.S.C. § 1983, Brownell filed a complaint in federal district court alleging that the defendants violated his constitutional rights by employing unreasonable force against him and by denying him adequate medical care. In addition, a pendent count recasts these claims as violations of state tort negligence law. After extensive discovery, the district judge granted the defendants' motion for summary judgment on all claims. On appeal, Brownell contends that the district court erred because genuine issues of material fact remain for trial. For the reasons offered below, we affirm.

I.

We review the facts, necessarily in some degree of detail, in the light most favorable to Brownell. ¹ At approximately 2:45 a.m. on September 9, 1988, while travelling on U.S. 24 in Allen County, Indiana, Brownell apparently lost control of his automobile, crossed the median, and struck a guardrail on the opposite side of the highway. Lt. Greg Roth of the Allen County Police Department, and Steve McAllister and Tim Schulz, E.M.T.'s with the Adam's Township Fire Department, arrived at the scene shortly after the accident. ²

Roth, McAllister, and Schulz discovered Brownell, apparently unconscious, lying across the passenger seat of his 1980 El Camino with his feet tucked under the steering wheel. They all noticed a strong smell of alcohol on Brownell and Roth discovered several beer cans in the car. McAllister examined Brownell for injuries while Roth conducted an investigation of the scene and called a tow truck. In response to McAllister's flashlight, Brownell opened his eyes; when asked if he was injured, Brownell responded "no" and began swearing. Brownell told McAllister to keep his hands off of him and to leave him alone to sleep. When McAllister attempted to examine Brownell for injury, Brownell persisted in acting combative, pushing away McAllister's hands and swearing at him. After extricating Brownell from the car, the E.M.T.'s placed him on a backboard and transported him to the Parkview Hospital emergency room. During this process, Brownell fought against the backboard restraints and attempted to remove the straps. The E.M.T. Transport Report stated that Brownell had no obvious signs of injury.

During an examination by Dr. James Bolander, Brownell smelled of alcohol, and continued swearing, resisting restraint, and occasionally nodding off to sleep. Indeed, the doctor described Brownell as the most abusive person he had encountered in his five years at Parkview Hospital. Dr. Bolander found no sign of injury nor any misalignment of Brownell's spine. He concluded Brownell was simply intoxicated and released him to the police.

Before leaving, a nurse asked Brownell to sign a hospital release form, which he was either unable or unwilling to do. After Roth signed the release form on Brownell's behalf, two hospital security guards wheeled Brownell to a waiting patrol car. Roth informed Brownell that he suspected him of driving under the influence of alcohol and that he wished to escort him to the police station in order to administer a Breathalyzer test. In response to Roth's instruction to get into the car, Brownell did not move. With the assistance of the two security guards and McAllister, Roth lifted Brownell into the front passenger seat of his patrol car.

After driving Brownell to the sally port of the county lockup, Roth asked him to exit the car in order to take a Breathalyzer test. Because Brownell failed to move, Roth lifted him out of the cruiser and placed him on the ground. Joseph Bickel, another police officer, and Thomas Bird, a civilian jailor, were summoned to help out. The officers continued talking to Brownell in an attempt to get him to respond. When again asked to cooperate in the administration of a Breathalyzer test, Brownell responded, "I can't. My arms and legs don't move." Roth Deposition at 87-88. The only movement Brownell made during this time was batting motions with his hands, apparently in an effort to make the officers leave him alone.

In an attempt to rouse Brownell from his stupor, Bickel applied a "pen hold," a technique designed to put pressure on the knuckles to evoke a pain response. Brownell did not respond. Bickel then tried a "mandibular angle pressure point" on Brownell, which involves applying pressure to a nerve behind the jaw bone and pushing straight forward toward the chin. The second time Bickel applied this technique, Brownell winced. Concluding Brownell would not stand up of his own volition, the officers tried, unsuccessfully, to stand him on his feet.

Because Brownell failed to cooperate in taking a Breathalyzer, the officers arrested him for driving while intoxicated. Bird and Bickel picked him up off the floor and lugged him over to the processing counter. Brownell continued to verbally abuse the officers and flail his arms about in a sluggish manner. After conducting a pat down search, Bickel and another officer placed Brownell on the floor of a cell to "sleep it off." Believing Brownell feigned his inability to move, and in a final attempt to arouse him, Bird sprayed some "CS gas" (a repellant similar to mace) on Brownell's stomach. Brownell did not react.

At 7:00 a.m., officer Jerry Hosier came on duty, and one of the outgoing officers informed him of Brownell's intoxication, the accident, the trip to the hospital, the doctor's diagnosis, and the events at lockup. At approximately 8:30 a.m., while on routine rounds, Hosier saw that Brownell was awake and explained to him that he needed to get up to go to court. Apparently still in a stupor, Brownell responded unintelligibly. Later, realizing Brownell had not moved, Hosier became concerned and summoned the staff nurse. At 11:30 a.m., the nurse determined through a pin prick test that Brownell had no sensation in his feet. Brownell was returned to Parkview Hospital by ambulance where doctors diagnosed a fractured, displaced vertebra, and permanent quadriplegia. At that time, nearly twelve hours after the accident, Brownell's blood-alcohol content measured .14%. Finding no evidence of excessive force, denial of medical care, or negligence, the district court granted summary judgment to the defendants on all claims. Brownell appeals.

II.

We review de novo a district court's grant of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986). In doing so, we must review the record and all inferences drawn from it in the light most favorable to the nonmovant, Lohorn v. Michal, 913 F.2d 327, 331 (7th Cir.1990), and determine whether a genuine issue exists as to any material fact. Fed.R.Civ.P. 56(c). Put another way, we decide "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12. A scintilla of evidence in support of the nonmovant's position is insufficient to successfully oppose summary judgment; "there must be evidence on which the jury could reasonably find for the plaintiff." Id.; see also In re Wildman, 859 F.2d 553, 557 (7th Cir.1988); Klein v. Ryan, 847 F.2d 368, 374 (7th Cir.1988); Valentine v. Joliet Township High School Dist., 802 F.2d 981, 986 (7th Cir.1986). With this standard in mind, we examine each of Brownell's claims in turn.

III.

Section 1983 provides a cause of action against government employees who, acting under color of law in their official capacity, violate the constitutional rights of another. Brownell's first claim is that Roth, Bickel, and Bird, acting in their official capacity, violated his due process rights by failing to provide him with adequate medical care. ³ Specifically,...