Fitzke v. Shappell

Citation468 F.2d 1072
Decision Date03 October 1972
Docket NumberNo. 72-1154.,72-1154.
PartiesRobert FITZKE and Joy Fitzke, Plaintiffs-Appellants, v. Barry SHAPPELL, Deputy Sheriff, and Elwin Smith, Sheriff, of Eaton County, Michigan, Jointly and Severally, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)


Daniel S. Cooper, Southfield, Mich., for plaintiffs-appellants; Cooper, Baskin & Feldstein, Southfield, Mich., Hal W. Ziegler, Jackson, Mich., on briefs.

David O. Haughey, Grand Rapids, Mich., for defendants-appellees; Smith, Haughey, Rice, Roegge & Gould, Wallson G. Knack, Warner, Norcross & Judd, Grand Rapids, Mich., on briefs.

Before PHILLIPS and MILLER, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

This is an appeal from the dismissal of appellants' civil rights action brought pursuant to 42 U.S.C. § 1983.1 The complaint and amended complaint set forth three counts. In addition to the first count, which purports to state a cause of action under § 1983, the complaint in counts 2 and 3 states claims for false imprisonment and negligence. We do not consider the sufficiency of the state claims.

The complaint, as amended, alleged that Fitzke had been arrested "without just cause or provocation" by the defendant Shappell after he blacked out and struck a telephone pole as a result of "a bleeding brain lesion." It is alleged that the arresting officer, Shappell, who apparently arrived at the scene soon after the accident, "conveyed Plaintiff to Eaton County Jail and incarcerated him there," having made no "inquiry into" nor expressed "concern for the physical condition" of the plaintiff, now appellant, Fitzke. The complaint affirmatively asserts that "Plaintiff complained of leg pain and limped badly and communicated the need for medical attention, and said medical attention was denied him." It is further alleged that "upon arriving at the Eaton County Jail or immediately thereafter, Plaintiff complained of said pain and numbness, and instead of obtaining vitally needed medical attention, Defendant(s) merely told Plaintiff to rub the areas of pain and numbness." The complaint alleges that appellant was at the time "suffering from a blood clot in the brain" and that he "was held in the said jail, from 1:30 AM on February 24, 1971, until 6:30 PM on the same day, a period of 17 hours, without necessary medical treatment, during which period he was suffering from serious brain injury, and during which period he was denied requested medical treatment." Further, the complaint alleges that as a result of "the failure to provide the requested medical treatment when . . . Fitzke was unlawfully incarcerated," he found it necessary to undergo a "craniotomy in which his skull was opened and the damaged areas of the brain removed." It is the appellants' contention that the extent of brain damage was directly related to the delay in receiving medical attention and that he should recover under the Civil Rights Act for the residual injury that resulted from the delay in his receiving such attention.

The appellees moved to dismiss and for summary judgment on the grounds that the complaint failed to state a cause of action and that the court lacked subject matter jurisdiction. The affidavits of Captain Charles M. Kennedy and Deputy C. E. Eddington, both of the County Sheriff's Department, and Dr. Daniel Joseph, a physician, were filed in support of this motion. Captain Kennedy, who came on duty at 8:00 AM on February 24, 1971, stated in his affidavit that about 9:30 or 10:00 AM on that day Deputy Eddington requested that he look at Fitzke; that he did so; and that when Fitzke complained about his leg, he, Kennedy, told Fitzke that he would call a doctor. Kennedy further stated that he did call a doctor within ten minutes after seeing Fitzke and that this doctor subsequently examined Fitzke "after lunch, approximately 1:00 PM." Deputy Eddington, who went on duty at 7:45 AM, stated in his affidavit that he first saw Fitzke at approximately 9:00 AM when Fitzke "stated that his leg was asleep." Finally Dr. Joseph, the physician called by Captain Kennedy, stated in his affidavit:

On February 24, 1971, I went to the Eaton County jail at approximately 2:00 P.M., pursuant to the request of the Eaton County Sheriff\'s Department, and examined Robert Fitzke, an inmate therein.
Later that same day, at approximately 5:30 p. m., I returned to the jail and again examined Mr. Fitzke. At that time, Mr. Fitzke was removed to the hospital.

On the basis of the pleadings and affidavits, the district court found appellees' motions for dismissal and summary judgment to be well taken.

Two elements are necessary for recovery under the terms of § 1983. "First, the plaintiff must prove that the defendant has deprived him of a right secured by the `Constitution and laws' of the United States;" and second, he must show that the defendant deprived him of that right "under color of law." Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970).2 It is, of course, not disputed that the complaint sufficiently alleges the second of these requirements. However, the appellees contend, and the district court agreed, that if Count 1 of the complaint states a cause of action at all it is a tort action for negligence and not the deprivation of any constitutional right. We cannot agree.

The allegations of one denied medical attention and incarcerated after an automobile accident have been held to state a cause of action under 42 U.S.C. § 1983. Hughes v. Noble, 295 F.2d 495 (5th Cir. 1961).3 In Stiltner v. Rhay, 371 F.2d 420, 421 (9th Cir. 1967),4 the Ninth Circuit, citing Hughes, supra, noted that "under exceptional circumstances the failure to provide or permit access to medical care may give rise" to a violation of one's Fourteenth Amendment rights. The basis of concern where needed medical care is refused to one incarcerated is, as stated in McCollum v. Mayfield, 130 F.Supp. 112, 115 (N.D.Cal. 1955), that such refusal "could well result in the deprivation of life itself. . . ."

The logic of these pronouncements is not difficult to perceive. An individual incarcerated, whether for a term of life for the commission of some heinous crime, or merely for the night to "dry out" in the local drunk tank, becomes both vulnerable and dependent upon the state to provide certain simple and basic human needs. Examples are food, shelter, and sanitation. Facilities may be primitive but they must be adequate. Medical care is another such need. Denial of necessary medical attention may well result in disabilities beyond that contemplated by the incarceration itself. The result may be crippling injury, as alleged here, or, as the Stiltner court pointed out, the very deprivation of life itself, since, restrained by the authority of the state, the individual cannot himself seek medical aid or provide the other necessities for sustaining life and health.

Thus it is that fundamental fairness and our most basic conception of due process mandate that medical care be provided to one who is incarcerated and may be suffering from serious illness or injury. This is not to say that every request for medical attention must be heeded nor that courts are to engage in a process of second-guessing in every case the adequacy of medical care that the state provides. But where the circumstances are clearly sufficient to indicate the need of medical attention for injury or illness, the denial of such aid constitutes the deprivation of constitutional due process. Hughes v. Noble, supra; McCollum v. Mayfield, supra.5

The complaint before us sets forth such allegations.6 Fitzke alleged that his arrest followed on the heels of and stemmed from an automobile accident, that he was limping, that he complained of pain and numbness in his leg, and that he requested medical attention. Such allegations do reflect circumstances sufficiently indicative of injury to warrant medical attention. Accordingly, the complaint states a cause of action cognizable under 42 U.S.C. § 1983.7

We turn to the question whether, notwithstanding the fact that the complaint adequately alleged a cause of action under § 1983, summary judgment might have been appropriate in light of the three affidavits filed by the appellees which were not controverted by rebutting evidentiary material. Rule 56(e) of the Federal Rules of Civil Procedure provides in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

That affidavits filed in support of a motion for summary judgment are not controverted does not necessarily require its being granted, although the statements contained therein must be accepted as true. One moving for summary judgment has "the burden of showing the absence of a genuine issue of any material fact, and for these purposes the material . . . which the appellees lodged must be viewed in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., supra, at 157, 90 S.Ct., at p. 1608.8

As the Court further pointed out in Adickes v. S. H. Kress & Co., 398 U.S. at 160, 90 S.Ct. at 1609, the Advisory Committee Note on the 1963 Amendment to subdivision (e) of Rule 56 made plain that "`where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented.'"

Here, appellees rely heavily on the affidavits of Kennedy, Eddington and Joseph which show that concern was expressed for Fitzke's condition as early as 9:00 AM on September 24,...

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