Hirsch v. Burke, 93-1574

• Decision Date: 18 November 1994
• Docket Number: No. 93-1574,93-1574
• Citation: 40 F.3d 900
• Parties: Marilyn HIRSCH, as the Administratrix of the Estate of Stephen A. Hirsch, Plaintiff-Appellant, v. Steven BURKE, Individually and in his Official Capacity as a Police Officer for the City of Indianapolis, and Joseph McAtee, as Sheriff of Marion County, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 900

40 F.3d 900

Marilyn HIRSCH, as the Administratrix of the Estate of Stephen A. Hirsch, Plaintiff-Appellant, v. Steven BURKE, Individually and in his Official Capacity as a

Police Officer for the City of Indianapolis, and

Joseph McAtee, as Sheriff of Marion

County, Defendants-Appellees.

No. 93-1574.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 13, 1994.

Decided Nov. 18, 1994.

Michael K. Sutherlin (argued), Indianapolis, IN, for Marilyn Hirsch.

MaryAnn G. Oldham, Allen K. Pope, Dale R. Simmons (argued), Office of Corp. Counsel, City Counsel Legal Div., John C. Ruckelshaus, Ruckelshaus, Roland, Hasbrook & O'Connor, Indianapolis, IN, for Steven Burke.

MaryAnn G. Oldham, Allen K. Pope, Dale R. Simmons, Office of the Corp. Counsel, City Counsel Legal Div., Indianapolis, IN, for Joseph G. McAtee.

Before POSNER, Chief Judge, MANION, Circuit Judge, and ASPEN, District Judge. ^*

MANION, Circuit Judge.

Marilyn Hirsch, as administratrix of the estate of her husband, Stephen A. Hirsch (who died in an automobile accident unrelated to this suit during the pendency of this litigation), brought this civil rights action under 42 U.S.C. Sec. 1983 against Indianapolis Police Officer Steven Burke, in his individual and official capacities, and the Marion County Sheriff in his official capacity. Hirsch alleged the defendants violated her late husband's civil rights when they had him arrested and jailed for public intoxication when, in fact, he was a diabetic in a state of insulin shock. The district court denied Hirsch's claims and entered judgment in favor of the defendants. We affirm.

I.

The facts most favorable to the judgment reveal that on April 5, 1986, Stephen Hirsch, his wife, and another couple attended a Pacers basketball game in Indianapolis. After the game, the two couples drove to an Indianapolis area night club, the Excaliber, to hear the Ramsey Lewis Trio. Testimony indicated that Stephen had one beer at the game and may have consumed another while at the club. After sitting a while at the club, Stephen complained that he felt hot and left to go outside for some fresh air.

As it turns out, Stephen was a Type I diabetic. This means that his pancreas had lost its ability to manufacture and secrete insulin. As treatment for this condition, Stephen carefully controlled his diet and administered to himself two insulin shots per day. Usually this treatment was successful in maintaining normal blood sugar levels; occasionally, however, his blood sugar level would not stabilize, causing him to go into insulin shock, a condition characterized by sweating, incoherence and a coma-like state.

Sometime after Stephen went outside, he ended up in the club's parking lot where a security guard observed him acting erratically and immediately summoned the police. Officer Steven Burke of the Indianapolis Police arrived at approximately 12:30 a.m. and was directed by the security guard to Stephen. Burke observed that Stephen was unsure of his footing and appeared incoherent. Upon closer examination, Burke observed that Stephen had bloodshot eyes and smelled of alcohol. Burke asked Stephen several questions, including whether he could recall his name, birthdate, and whether he was with anyone at the club, to which he got mixed responses. Stephen could not recall his name or birthdate, but he did say that he had been inside the club drinking. Burke testified that during this questioning, Stephen became "belligerent" in a manner similar to that Burke had experienced when dealing with people who were drunk. At no time, however, did Stephen tell Burke that he was a diabetic.

Based on these observations, Burke arrested Stephen for public intoxication and took him to the city lock-up for the Marion County Jail. Burke handed Stephen over to the receiving officers for book-in at 12:40 a.m. During the course of the book-in, Stephen was uncooperative and refused to provide the jailers with necessary information, including his identity and medical matters. Because of his uncooperativeness, the jailers placed Stephen in a cell in what is called the M-section, a section for uncooperative detainees as well as those with uncertain medical or mental conditions at the time of book-in, where he would be checked on approximately every half hour.

Stephen apparently passed out while in his cell, but later awoke around 1:30 a.m. At that point he got the attention of the jailers and informed them of his diabetic condition and that he was suffering from insulin shock. In the meantime, Stephen's wife and friends had located him at the jail and told the lock-up medical officer on duty at the time, Deputy Sheriff Edgar Sosbe, of Stephen's diabetic condition. Stephen was then taken to Wishard Memorial Hospital where he arrived at around 2:15 a.m. While there he was given a blood test (which showed almost no alcohol but very high levels of insulin). He was also given some orange juice to normalize his blood sugar level. The examining physician recommended that Stephen test his blood sugar level and make any necessary adjustments to his insulin intake. Following this, Stephen was returned to the jail at approximately 4:15 a.m.

Later, at approximately 11:00 that morning, Stephen was examined by Joseph Nielander, a deputy sheriff and L.P.N. trained in the treatment of diabetes and other conditions. Nielander reviewed Stephen's medical records and attempted to elicit some information from Stephen. Stephen again was uncooperative. Nielander offered Stephen some food (a diabetic plate) and insulin, but Stephen refused. Nielander testified that he would normally offer diabetics the opportunity to test their blood sugar, but stated that he did not recall whether he had made such an offer to Stephen.

Shortly thereafter, at 12:40 p.m., Stephen was released on his own recognizance. The next day, on April 7, the prosecutor declined to file formal charges against Stephen and the case was dismissed.

On March 17, 1987, Marilyn Hirsch, as administratrix of Stephen's estate, brought this action under 42 U.S.C. Sec. 1983 against Burke, both in his individual capacity and in his official capacity as an officer for the City of Indianapolis, Marion County Sheriff Joseph McAtee, in his official capacity, and various other named and unnamed deputies and correctional officers at the Marion County Sheriff's Department. ¹ She asserted four theories: (1) Burke in his individual capacity violated Stephen's rights by arresting him without probable cause in violation of the Fourth and Fourteenth Amendments; (2) Burke, in his official capacity, was, due to the City's policy and practice, inadequately trained to recognize the symptoms of diabetes which in turn caused Stephen to be arrested without probable cause; (3) the Marion County Sheriff engaged in a policy or practice of inadequately training his staff to recognize and treat medical problems, thus violating Stephen's rights as a pretrial detainee to be free from conditions amounting to punishment under the Eighth and Fourteenth Amendments, and to receive adequate medical care; and (4) that the Marion County Sheriff was deliberately indifferent to Stephen's medical needs and acquiesced in the book-in practices. A three-day trial was held before a district judge. Twenty-three months after trial the district court issued its findings and conclusions of law in which it entered judgment in favor of all defendants.

II.

Hirsch challenges many of the district court's findings and conclusions of law. In assessing these challenges we are guided by the language of Fed.R.Civ.P. 52 which states that "[f]indings of fact ... shall not be set aside unless clearly erroneous." A finding is clearly erroneous " 'when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)). The district court's application of the correct legal standard to its factual findings is subject to the same clear error standard. Daniels v. Essex Group, Inc., 937 F.2d 1264, 1269-70 (7th Cir.1991).

A. False Arrest

Hirsch first challenges the district court's determination that Stephen's arrest for public intoxication did not violate the Fourth Amendment. Specifically, Hirsch contends that in making its determination the district court relied upon certain hearsay testimony which Hirsch had successfully challenged at trial. On direct examination, Hirsch's counsel asked Officer Burke to explain his procedure for determining whether a suspect was intoxicated. In response, Burke stated that he relied on what he "observe[d] through [his] senses," as well as information from the club's security guards that Stephen was being disruptive inside the club and refused to leave. Hirsch's counsel objected to this last portion of Burke's answer on the grounds that it was non-responsive and that it contained hearsay. The district court sustained Hirsch's objection. In its findings of fact, however, the district court included what the club's guards had told Officer Burke. From this, Hirsch concludes the district court relied upon this hearsay testimony in its determination that Burke had probable cause to arrest Stephen. Hirsch contends that without this hearsay evidence, no reasonable fact-finder could have concluded that this arrest was supported by probable cause. We will reverse the district court's finding of probable cause for clear error only. Mahoney v. Kesery, 976 F.2d 1054, 1059 (7th Cir.1992).

We need not delve into whether this unsolicited testimony of Officer Burke was hearsay (although we do note that this testimony was not offered by Hirsch to prove the matter asserted), because there is no question that based on his own...