Johnson v. Meltzer

• Decision Date: 09 January 1998
• Docket Number: No. 95-56404,95-56404
• Citation: 134 F.3d 1393
• Parties: 98 Cal. Daily Op. Serv. 684, 98 Daily Journal D.A.R. 909 Charles Wayne JOHNSON, Plaintiff-Appellant, v. Hal MELTZER, M.D.; Lawrence F. Marshall, M.D.; and University of California at San Diego Medical Center; Jeffrey Lierly, CHP Officer; P.G. Herrera; D. Elgin, CHP Officer; and R.W. Visconti, Sheriff's Deputy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1393

134 F.3d 1393

98 Cal. Daily Op. Serv. 684, 98 Daily Journal

D.A.R. 909

Charles Wayne JOHNSON, Plaintiff-Appellant, v. Hal MELTZER, M.D.; Lawrence F. Marshall, M.D.; and University of California at San Diego Medical Center Jeffrey Lierly, CHP Officer; P.G. Herrera; D. Elgin, CHP Officer; and R.W. Visconti, Sheriff's Deputy, Defendants-Appellees.

No. 95-56404.

United States Court of Appeals Ninth Circuit.

Submitted Jan. 9, 1998. ^*

Decided Jan. 27, 1998.

Charles Wayne Johnson, Pro per, Tehachapi, California, defendant-appellant.

James E. Friedhofer, Lewis, D'Amato, Brisbois & Bisgaard, San Diego, California, for defendants-appellees Meltzer and Marshall; Nathan C. Northrup, Deputy, County Counsel, County of San Diego, for defendant-appellee Visconti; Karen M. Walter, Deputy Attorney General, State of California, San Diego, California, for defendants-appellees Lierly and Herrera.

Appeal from the United States District Court for the Southern District of California; Napoleon A. Jones, District Judge, Presiding. D.C. No. CV-93-01502-NAJ.

Before: LAY ^**, GOODWIN and REINHARDT, Circuit Judges.

GOODWIN, Circuit Judge:

Charles Johnson appeals the summary judgment that terminated his 42 U.S.C. § 1983 action against all defendants for the administration of an experimental drug without his consent. Because he raised issues of material fact sufficient to preclude summary judgment against all defendants except P.G. Herrera, we reverse and remand.

Facts and Procedural Background

Johnson is a California state prisoner. While driving a stolen car the wrong way on a freeway in an attempt to evade arrest, he crashed into another car and killed the driver. Suffering severe head injuries of his own, he was taken to UCSD where he was initially seen by Dr. James Davis, the trauma attending physician. Someone administered a paralytic agent to immobilize him; he was intubated and hyperventilated in an effort to prevent brain damage from elevated intracranial pressure.

About two hours after Johnson's arrival at the hospital, Doctors Meltzer and Marshall--both neurosurgeons--became involved in Johnson's care. They performed an operation to insert an instrument into Johnson's skull to monitor intracranial pressure. They apparently completed this procedure somewhere between 7:10 a.m and 7:20 a.m. Then, at 8:30 a.m., Dr. Meltzer signed a consent form to authorize giving Johnson a drug called U-74,006F. At the time Dr. Meltzer signed the form, Johnson was unconscious, and therefore unable to give or withhold his consent. As of June 1991, when these events occurred, the FDA had not approved U-74,006F for general use, but had approved it for clinical trials. (The record does not reveal whether the drug was ever approved by the FDA.) Johnson's claims against the doctors relate exclusively to the administration of U-74,006F without his consent.

At approximately 6:30 a.m. on the morning of the accident, June 14, California Highway Patrol Officer Herrera visited Johnson at UCSD to obtain photographs and fingerprints. It took about 4 to 5 minutes for Herrera to obtain the photographs and fingerprints. Johnson was unconscious during that time.

Johnson alleges that on the same morning, June 14, shortly after Herrera obtained the photographs and fingerprints, Jeffrey Lierly, an officer with the California Highway Patrol, and R. Visconti, a Deputy Sheriff for the County of San Diego, informed the doctors of their intention to conduct a recorded police interview with Johnson, and "instructed that he be awakened from the medically induced coma." Johnson further alleges that: the doctors woke him from his coma in response to the officers' instructions; the officers proceeded to interview him; and that the process "contribute[d] greatly to the plaintiff's brain injuries."

Lierly and Visconti deny that they ever requested physicians to awaken Johnson from a coma. They also deny that any interview took place on June 14.

Visconti alleges that he visited Johnson at UCSD a week later, on June 21, 1991, to obtain "standard booking information." He further alleges that Johnson was "awake and alert" when he arrived, and that Johnson "willingly provided standard booking information in response to my questions."

On June 25, 1991, Lierly went to UCSD for the purpose of interviewing Johnson regarding the criminal charges. Lierly alleges that Johnson was conscious when he arrived, and that he (Lierly) "did not request U.C.S.D. Medical Center medical personnel alter the medical condition of plaintiff, awake him from a medically-induced coma, or do anything to ... deny, delay or intentionally interfere with plaintiff's medical treatment."

More than two years after the events at issue, Johnson filed a pro se complaint under 42 U.S.C. § 1983. After extended legal maneuvering by all parties, Johnson filed a second amended complaint. Upon a motion by the defendants, the district court entered summary judgment in favor of defendants Meltzer, Marshall, Herrera, Lierly, Visconti and Elgin. Johnson filed a timely appeal.

Discussion

I

Initially two procedural matters must be addressed. First, the district court granted summary judgment in favor of a defendant (D.Elgin) who was never served. The Federal Rules of Civil Procedure provide that when a defendant remains unserved after 120 days, the district court "shall dismiss the action without prejudice." Fed. R. Civ. Proc. Rule 4(m). Accordingly, Elgin was not entitled to summary judgment. On remand, the court should dismiss Johnson's claims against Elgin without prejudice.

Second, the district court failed to name defendant Visconti in its judgment, even though the body of the court's order makes it clear that the court meant to grant him summary judgment. See District Court's Order at 6, 8. This court has established that a district court's discussion in the body of the order indicating its intent to make a final judgment suffices to create a final judgment. Lockwood v. Wolf Corp., 629 F.2d 603, 608 (9th Cir.1980) (District court made a final judgment on counterclaim despite omission from judgment because the order stated that the counterclaim was barred.). See also Bankers Trust Co. v. Mallis, 435 U.S. 381, 387-88, 98 S.Ct. 1117, 1121-22, 55 L.Ed.2d 357 (1978) (District court's intention that order be final judgment suffices to make it so).

The district court clearly intended to include Visconti in its grant of summary judgment. Indeed, no one, including Visconti's attorney, has evidenced notice that his name is not included in the judgment. Accordingly, we treat the district court's decision as granting Visconti's motion for summary judgment and creating a final appealable order.

II

We now turn to the question whether the doctors were entitled to summary judgment. The district court construed Johnson's claim against the doctors as a claim for deliberate indifference to his medical needs arising under Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). See District Court Order at 6-7. The district court interpreted Johnson's pleading to allege that the doctors used U-74,006F "to treat his serious head injury without his consent." District Court Order at 6. This statement limits Johnson's claim by characterizing the doctors' actions as "treatment" while Johnson has consistently maintained that the doctors acted for research purposes unrelated to treating him. Johnson's second amended complaint clearly states that his "due process rights have in fact been violated." He asserts that the doctors used him "as some sort of a human rat to test an experimental drug." Recognizing Johnson's pro se status, we construe his complaint liberally to state a claim for violation of his constitutionally protected liberty interest in bodily integrity. On these pleadings, the proper analysis requires a factfinder to establish the predominant motive.

Whatever grammarians may think of the anomalous expression, "substantive due process," it is well established that a person's liberty interest in bodily integrity is one of the personal rights accorded substantive protection under the Due Process Clause. See, e.g., Albright v. Oliver, 510 U.S. 266, 272, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994) ("The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.") (emphasis added).

In the past decade, the Supreme Court has decided two "substantive due process" cases involving the nonconsensual administration of medication. In Washington v. Harper, the Court held that "the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate's medical interest." 494 U.S. 210, 227, 110 S.Ct. 1028, 1039-40, 108 L.Ed.2d 178 (1990). In Riggins v. Nevada, the court held that forced administration of antipsychotic medication to a criminal defendant during trial violated his Fourteenth Amendment due process rights, because the state failed to make the required showing of both an "overriding justification and a determination of medical appropriateness." 504 U.S. 127, 135, 112 S.Ct. 1810, 1815, 118 L.Ed.2d 479 (1992).

These cases demonstrate that due process requires that if a doctor gives a drug to an inmate without his consent, the drug must be medically appropriate. While Johnson was not an inmate, we can, for purposes of this appeal, apply the rules governing inmates to him, for he prevails even under the standard applicable to persons of that status. In this case, if the U-74,006F was administered for Johnson's medical benefit in an emergency situation where the doctors could not obtain his consent, it might be medically appropriate. It does not automatically follow, however, that the giving of the experimental drug without consent was for Johnson's...