S. Dodd v. Jones

• Decision Date: 18 October 2010
• Docket Number: No. 09-2016.,09-2016.
• Citation: 623 F.3d 563
• Parties: Michael S. DODD, Appellant, v. Steven C. JONES; Mike Thorn, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

623 F.3d 563

Michael S. DODD, Appellant,

v.Steven C. JONES; Mike Thorn, Appellees.

No. 09-2016.

United States Court of Appeals,Eighth Circuit.

Submitted: March 12, 2010.

Filed: Oct. 18, 2010.

Richard D. Crites, Springfield, MO, argued (R. Lynn Meyers, on the brief), for appellant.

Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, MO, argued (Chris Koster, Atty. Gen., on the brief), for appellee Jones.

Erin E. Lary, Baird, Lightner, Millsap & Harpool, P.C., Springfield, MO, argued (M. Douglas Harpool, on the brief), for appellee Thorn.

Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

COLLOTON, Circuit Judge.

An intoxicated driver struck Michael Dodd, who had been lying injured on Route M in Lawrence County, Missouri, after his own apparent alcohol-related accident. Dodd brought an action under 42 U.S.C. § 1983 against Missouri State Highway Patrolman Steven Jones and Lawrence County Deputy Sheriff Mike Thorn in their individual and official capacities. He alleged that Jones and Thorn, both of whom responded to his accident, failed to protect him from the intoxicated driver, and that Jones conducted an unlawful search of his blood. The district court ¹ granted summary judgment for Jones and Thorn, and dismissed the claim against Jones in his official capacity. We affirm.

I.

Late on December 28, 2002, and into the early morning of December 29, Dodd was at the Route 66 Tavern in Lawrence County, Missouri. A witness reported that Dodd “had way more than enough to drink” and fell off a bar stool. Another witness stated that Dodd was “rowdy” and was “pretty drunk.” Bar employees ejected Dodd approximately thirty minutes prior to closing time for breaking a beer mug.

Soon after Dodd departed, Micki Langley left the Route 66 Tavern with two passengers in her vehicle. While traveling south on Route M, she happened upon what appeared to be a single-car accident involving Dodd's pickup truck. Dodd's truck was partially in the ditch and partially blocking the southbound lane, nearly perpendicular to Route M. Kima Montgomery, one of Langley's passengers, noticed Dodd lying in the southbound lane, immediately north of the pickup.

After driving over debris from the accident, Langley stopped her vehicle south of Dodd's body in the northbound lane. Montgomery and fellow passenger Stanley Mason attended to Dodd, who was semi-conscious, and called 911. Langley turned her vehicle around and shined the headlights north toward Dodd. The passersby covered Dodd with a cloth from Langley's vehicle to keep him warm, and tried to assess the extent of Dodd's injuries while waiting for rescue personnel to arrive.

Jones and Thorn arrived in separate vehicles, within minutes of Montgomery's 911 call. They approached the scene from the south and parked their vehicles behind Langley's with headlights on and emergency lights flashing.

The officers feared that Dodd might have suffered a spinal injury, so they did not move him from Route M. Jones asked Mason to hold Dodd's head steady. At some point, Jones directed Langley to move her vehicle to a private drive east of Route M to provide space for an ambulance. During this time, Jones also began investigating Dodd's accident. He attempted to read Dodd's blood-alcohol content on a portable breath testing device. Montgomery noticed Jones “writing down a lot of things,” including the license plate number of Dodd's pickup. Jones also searched Dodd's wallet for identification.

Meanwhile, Thorn attempted to contact the ambulance crew to notify it that Dodd was seriously injured, but he was unable to call out on his handheld radio. Thorn returned to his vehicle to try other means of contacting the ambulance. He then returned to Dodd's side, and Montgomery observed him shining a flashlight to assist Jones's search for Dodd's identification.

Approximately six minutes after Jones and Thorn arrived, Thomas McSwain's southbound pickup truck approached the scene. Thorn warned Jones and the others about McSwain's oncoming truck, and Jones waved his arms and his flashlight to warn McSwain of the accident scene. But McSwain, whose blood-alcohol content later tested at 0.164 percent, did not stop. McSwain's pickup struck Dodd, pushing his body fourteen feet south of where he initially rested on Route M, and then hit Dodd's truck. Jones and Thorn, with weapons drawn, ordered McSwain to stop. McSwain ignored the order, shifted to reverse, and ran over Dodd a second time, stopping only when Jones knocked on the driver's side window. Jones arrested McSwain for careless and imprudent driving.

After McSwain struck Dodd, Jones ascertained that Dodd had suffered additional injuries but was still alive. While waiting for the ambulance, Mason again tried to minimize Dodd's movements to avoid aggravation of his injuries. Jones asked the ambulance crew to expedite its arrival and requested a rescue helicopter. At this point, Jones again used the preliminary breath testing device to read Dodd's blood-alcohol content. Dodd was unresponsive due to his injuries, so Jones placed the device close to Dodd's lips and tested his normal exhalation. According to Jones, that process provided “plenty of air to get a reading” well above 0.08 percent.

As a result, Jones placed Dodd under arrest for driving while intoxicated. He read Dodd Missouri's Implied Consent Law, which provides that upon arrest for driving while intoxicated, a person “shall be deemed to have given consent to ... a chemical test or tests of the person's breath, blood, saliva or urine for the purpose of determining the alcohol or drug content of the person's blood.” Mo.Rev.Stat. § 577.020.1. Dodd did not respond. Jones asked paramedic Jay Fry to obtain a blood sample from Dodd to test for intoxicating substances. Fry complied, and Jones took possession of the blood sample. Dodd received treatment at a nearby hospital for critical injuries. Jones inexplicably left Dodd's blood sample in his home refrigerator for several weeks, and the sample was not tested until approximately one month after it was obtained.

Dodd sued Jones and Thorn under 42 U.S.C. § 1983 in their individual and official capacities. He alleged that the officers failed to protect him from McSwain, because they did not park their vehicles or set road flares north of the accident, where McSwain later approached Dodd's body. Dodd asserted that in failing to take such measures, Jones and Thorn violated policies of the Missouri State Highway Patrol and Lawrence County. Dodd also alleged that the act of analyzing his blood one month after his arrest violated the Fourth Amendment, and that Jones violated the Health Insurance Portability and Accountability Act (HIPAA), see 42 U.S.C. § 1320d-1 to -9, by taking custody of Dodd's blood without express consent.

The district court granted the officers' motions for summary judgment. As to the individual capacity claims, the district court determined that Dodd failed to establish a violation of a constitutional or statutory right. The court also ruled that Dodd failed to show the existence of an unconstitutional policy or a pattern of misconduct, as necessary for the claim against Thorn in his official capacity. Finally, the court dismissed the official capacity claim against Jones based on sovereign immunity.

II.

We review the district court's grant of summary judgment de novo, viewing the record in the light most favorable to Dodd and drawing all reasonable inferences in his favor. Krout v. Goemmer, 583 F.3d 557, 564 (8th Cir.2009). Because the law enforcement officers are entitled to assert a defense of qualified immunity in this § 1983 action, Dodd must show both that the facts construed most favorably to him establish a violation of a constitutional or statutory right, and that the right was clearly established at the time of the incident, such that a reasonable official would have known his actions were unlawful. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The Supreme Court recently held that federal courts may “exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009).

A.

We first consider Dodd's claim that Jones and Thorn violated his rights under the Due Process Clause by failing to protect him from McSwain. The Due Process Clause generally does not provide a cause of action against state officials for harm caused by private actors. When a State takes a person into custody and holds him against his will, however, the Constitution imposes upon the State a corresponding duty “to assume some responsibility for his safety and general well-being.” DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989). A similar responsibility may arise if the State, against a person's will, places him in a position of danger that would not have existed without the State's intervention. James ex rel. James v. Friend, 458 F.3d 726, 730 (8th Cir.2006). Even in these situations, the state officials are liable, on a theory of substantive due process, only if their actions are so egregious or outrageous as to “shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see James, 458 F.3d at 730. If actual deliberation is practical, then a showing of deliberate indifference is required; otherwise, a purpose to cause harm may be necessary to trigger liability. Lewis, 523 U.S. at 850-51, 118 S.Ct. 1708.

We doubt whether the evidence supports a finding that Jones and Thorn took Dodd into custody and held him against his will so as to trigger the corresponding duty described in DeShaney. When the officers encountered Dodd, he was incapacitated and lying on the roadway. There is no showing that...