Vukadinovich v. McCarthy, s. 89-2019

• Decision Date: 13 June 1990
• Docket Number: Nos. 89-2019,89-2171,s. 89-2019
• Citation: 901 F.2d 1439
• Parties: Brian VUKADINOVICH, Plaintiff-Appellant, v. Timothy McCARTHY, et al., Defendants-Appellees. Brian VUKADINOVICH, Plaintiff-Appellant, v. Michael KRAWCZYK, Timothy McCarthy and Porter County Sheriff's Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1439

901 F.2d 1439

16 Fed.R.Serv.3d 915

Brian VUKADINOVICH, Plaintiff-Appellant, v. Timothy McCARTHY, et al., Defendants-Appellees.

Brian VUKADINOVICH, Plaintiff-Appellant, v. Michael KRAWCZYK, Timothy McCarthy and Porter County

Sheriff's Department, Defendants-Appellees.

Nos. 89-2019, 89-2171.

United States Court of Appeals, Seventh Circuit.

Submitted Jan. 17, 1990.

Decided May 14, 1990.

Rehearing and Rehearing En Banc Denied June 13, 1990.

Brian Vukadinovich, Wheatfield, Ind., for plaintiff-appellant.

Elizabeth A. Brown, Judge & Knight, Park Ridge, Ill., Robert A. Welsh, Harris, Welsh & Lukmann, Chesterton, Ind., for defendants-appellees.

Thomas D. Quigley, Office of the Atty. Gen., Indianapolis, Ind., for James A. Sarkisian, Daniel R. Berning, State of Ind. James G. Clark, Asst. Atty. Gen., Office of the Atty. Gen., Indianapolis, Ind., for Porter County Prosecutor's Office.

William W. Kurnik, Kurnik, Cipolla, Stephenson & Barasha, Arlington Heights, Ill., for David K. Lippens, William Collins, Valparaiso Police Dept.

Terrance A. Hilliard, John L. Gubbins, Gubbins & Associates, Chicago, Ill., for Brian Vukadinovich.

Before POSNER, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiff Brian Vukadinovich appeals the verdicts in favor of defendants Timothy McCarthy, the Porter County Sheriff's Department ("PCSD"), and Michael Krawczyk denying various constitutional claims under 42 U.S.C. Sec. 1983. In a separate action consolidated on appeal, Vukadinovich appeals the district court's denial of his motion to reconsider under Rules 59 and 60 and the imposition of sanctions under Rule 11. ¹ For the reasons stated below, we affirm.

I.

On the evening of November 26, 1983, Vukadinovich attended a party in Michigan City, Indiana. While at the party, he consumed one can of beer and part of another. He left the party at 11:00 p.m. with no beer in his vehicle and started to drive to Valparaiso, Indiana.

Officer Krawczyk of the PCSD was working the 4:00 p.m. to 12:00 p.m. shift that night as a patrol officer. At 11:50 p.m. Krawczyk observed Vukadinovich's vehicle approaching in a thirty-five mile per hour speed zone and twice measured his speed with radar at seventy-one miles per hour. He pursued Vukadinovich as Vukadinovich changed lanes, cutting in and out of traffic at speeds up to 85 miles per hour.

The pursuit ended when Vukadinovich, in response to the officer's lights, finally pulled his vehicle to a stop. Officer Krawczyk asked Vukadinovich for his license and registration and inquired whether Vukadinovich thought he could lose him in traffic. Vukadinovich responded by asking Krawczyk if he was being charged with fleeing. Krawczyk then asked him to exit his vehicle and perform a field sobriety test consisting of touching his finger to his nose. Vukadinovich failed the test.

Krawczyk then asked Vukadinovich to get into his squad car while he ran standard procedure checks on Vukadinovich's driver's license, registration and license plates over the radio. Krawczyk asked him if he had been drinking and he said no. Vukadinovich contends that Krawczyk then took a beer can from under the front seat of the squad car and demanded that Vukadinovich drink it. He claims he pretended to drink the beer but when Krawczyk realized that he was not drinking the beer, Krawczyk struck his ribs and left jaw, breaking his jaw.

While Vukadinovich's version of the events in the squad car remain in dispute, it is undisputed that while in the squad car, Krawczyk smelled the odor of alcoholic beverages on Vukadinovich. He then advised Vukadinovich that probable cause existed to believe he had operated his vehicle while intoxicated and requested that Vukadinovich submit to a chemical test. Krawczyk read Vukadinovich the implied consent warning which stated that failure to take the chemical test would result in suspension of his driving privileges for one year. Vukadinovich did not indicate that he would take the test. When a second officer arrived, Vukadinovich was again read the implied consent warning (this time in the presence of a witness) and finally Vukadinovich agreed to take the test. Vukadinovich was then transported to the Porter County Jail to take the test.

Upon arrival at the Porter County Jail, Vukadinovich was instructed to perform the breath test by blowing air into the mouthpiece of the machine. Vukadinovich puffed his cheeks as if he were blowing air into the machine. If air is delivered, a piston within the air chamber will rise to an up position and a light on the machine turns on. The piston did not rise and the light did not turn on, so Krawczyk told Vukadinovich that he believed that the test had been faked and that if he did not deliver air into the machine, he would have to be arrested for driving under the influence by reason of his refusal to take the test. Vukadinovich now claims that he could not take the test because of his broken jaw, but he did not inform anybody at the jail that he was medically unable to take the test (he claims out of fear), and he refused to attempt to take the test a second time. Consequently, Vukadinovich was arrested and booked for driving under the influence.

Vukadinovich refused to cooperate at the booking. He would not give his name, and the information had to be obtained from his driver's license. He also refused to provide information about his employer or his occupation and would not sign his fingerprint card. When Vukadinovich asked the jailer for medical treatment, he was provided with a medical screening questionnaire but refused to provide the information requested. When asked why he needed medical treatment, he refused to answer.

At that time, PCSD had a written procedure for the delivery of medical care to prisoners in the jail. The policy required jailers to inform the Warden, Deputy Chief, or Sheriff only when there was a need for a prisoner to receive medical care. One of these people would then decide whether to permit the prisoner to be released for treatment. To assist jailers in determining ailments or injuries, they were provided with and required to follow the format of a medical screening form. If an inmate had a medical problem, the jailers were required to discuss the problem and obtain an explanation from the inmate. At the time, all jailers employed in the Porter County Jail were trained in CPR and some were trained as emergency medical technicians. Pursuant to this policy, the jailor told Vukadinovich that he could not receive medical treatment unless he filled out the questionnaire or at least indicated the reason he needed the treatment. Because Vukadinovich had no visible symptoms of a problem and refused to fill out a questionnaire or answer questions about his condition, he was not offered medical treatment.

Vukadinovich was then placed in a holding cell. From this point (sometime around midnight) until about 6:00 a.m., Vukadinovich demanded a phone call but did not complain about medical problems. At 6:00 a.m. Vukadinovich again demanded medical treatment, but still refused to indicate what, if anything, was wrong with him. Finally, Vukadinovich indicated that the side of his stomach and throat hurt. No cuts, bleeding, or indication of pain were observed and he was not released for care. By 8:30 a.m., Vukadinovich had posted bond and left the jail. He promptly went to a hospital where he was treated for a broken jaw.

The next day, Vukadinovich filed a complaint against his jailers and Officer Krawczyk. Sheriff McCarthy ordered an investigation of Vukadinovich's complaint. A seventeen page statement was taken from Vukadinovich and at the conclusion of Vukadinovich's statement, Officer Krawczyk was advised to bring the car he used during the November 26 arrest to the jail. A thorough search was conducted of the car and no beer cans or pop tops were found. No wetness or odor was detected and the car had not been cleaned recently. Vukadinovich's personal physician was interviewed and his medical records were obtained. Jail incident reports were procured from the jailers on duty that night. Finally, Sheriff McCarthy personally interviewed Officer Krawczyk regarding the arrest and Vukadinovich's allegations. This investigation did not verify Vukadinovich's complaints and no action was taken against Krawczyk.

Vukadinovich also filed a complaint against Krawczyk with the FBI. Vukadinovich met with an FBI agent, and gave him a statement. The FBI investigated the complaint and exonerated Krawczyk of the charges.

Vukadinovich then brought this Sec. 1983 suit against Krawczyk, McCarthy, and the PCSD. He claimed that he was arrested without probable cause and maliciously prosecuted in violation of the fourteenth amendment and that Krawczyk struck him, also in violation of the fourteenth amendment. Finally, he claimed that the PCSD had a policy that caused this deprivation of rights in violation of the fourteenth amendment under Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). He asked for one million dollars in damages and ten million dollars in punitive damages. At the close of his case, the district court granted a directed verdict on the arrest without probable cause, malicious prosecution, and Monell counts, leaving for the jury the issue of whether Vukadinovich was struck by Krawczyk. The jury returned a verdict in favor of Krawczyk. Vukadinovich appeals alleging that certain statements during trial by the judge and opposing counsel prejudiced his case and that the district court abused its discretion in granting the directed verdict on the Monell count.

The second case in this consolidated appeal arises out of the animus created by the above suit. In a pro se complaint against several municipal and state defendants, Vukadinovich claimed a group of police departments and officers, including those involved in the prior suit, defamed him by circulating false information. The...