Dodd v. Jones

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-2016

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Michael S. Dodd, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Steven C. Jones; Mike Thorn, *

*

Appellees. *

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Submitted: March 12, 2010

Filed: October 18, 2010

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Before BYE, COLLOTON, and GRUENDER, Circuit Judges.

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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 court1 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.

1

The Honorable Richard E. Dorr, United States District Judge for the Western

District of Missouri.

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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.

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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.

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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 (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, 129 S. Ct. 808, 818 (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

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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 (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 (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.

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 Dodd could have

removed himself from the roadway, or that a passersby would have moved him out of

the path later taken by McSwain, if Jones and Thorn had not arrived on the scene.

Langley and her companions had covered Dodd to keep him warm and summoned

assistance, but gave no indication of a desire to move his body while awaiting

emergency medical personnel. Jones purported to place Dodd “under arrest” only

after the intoxicated driver struck Dodd. The absence of a clearly established

constitutional duty for the officers to act to protect Dodd under these circumstances

is sufficient grounds to affirm the district court’s grant of summary judgment in a

qualified immunity case. See Jackson v. Schultz, 429 F.3d 586, 590-91 (6th Cir.

2005); Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1176-77 (7th Cir. 1997);

Harris v. District of Columbia, 932 F.2d 10, 14-15 (D.C. Cir. 1991).

Dodd contends alternatively that a constitutional duty of care arose because

some actions by Jones and Thorn placed him in a worse position than what prevailed

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before they arrived, and that he was thus subjected to a “state-created danger.” See

James, 458 F.3d at 730. He argues that the emergency lights placed by the officers

in the northbound lane might have distracted McSwain and prevented him from

noticing Dodd in the southbound lane. He also asserts that Jones put him in a more

perilous position by having Langley move her vehicle, because Langley had shone her

vehicle’s headlights in Dodd’s direction. We think the possibility that the rescue

efforts by Jones and Thorn made Dodd worse off is too speculative to trigger any

constitutional duty of care. McSwain was an intoxicated driver who first ignored

emergency lights, a flashlight, and waving arms warning him of the accident scene,

and then disregarded the order of armed law enforcement officers to halt before he ran

his vehicle over Dodd a second time. There is little, if any, reason to believe that the

risks to Dodd were greater than if the officers had retained the status quo upon their

arrival.

Even assuming, moreover, that a constitutional duty of care arose, the evidence

does not support a finding that the conduct of Jones and Thorn was so outrageous as

to shock the contemporary conscience. The officers plainly did not act with a purpose

to harm Dodd. It is questionable whether actual deliberation was practical in this

situation, where Jones and Thorn did not have time to make “unhurried judgments,

upon the chance for repeated reflection, largely uncomplicated by the pulls of

competing obligations.” Lewis, 523 U.S. at 853. But accepting for purposes of

analysis that deliberate indifference to Dodd’s well-being could have given rise to

constitutional liability, the evidence does not support such a finding.

Rather than ignore Dodd’s predicament, the officers took affirmative steps

designed to protect his health and safety. They parked their vehicles with headlights

on and emergency lights flashing to alert oncoming traffic to a hazardous situation.

Jones asked passerby Mason to hold Dodd’s head still to protect against injury, and

directed Langley to move her vehicle to make space for an ambulance. Thorn

attempted to relay information about Dodd’s condition to emergency personnel.

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When McSwain approached the scene, Jones attempted to alert him of the accident

scene with his flashlight and waving arms. That placement of a barrier or flares on the

road might have been more effective in protecting Dodd does not establish that the

officers were deliberately indifferent to Dodd’s well-being. “[L]iability for

negligently inflicted harm is categorically beneath the threshold of constitutional due

process,” id. at 849, and the Constitution imposes no obligation on the State to provide

perfect or even competent rescue services. Brown v. Pa. Dep’t of Health Emergency

Med. Servs. Training Inst., 318 F.3d 473, 478 (3d Cir. 2003).

B.

Dodd’s next contention is that Jones violated his rights to be free from

unreasonable searches under the Fourth Amendment by causing his blood sample to

be tested almost one month after it was taken. Dodd argues that any exigent

circumstances that justified the taking of his blood dissipated before Jones arranged

for the testing, and that chemical analysis conducted without a warrant was

unreasonable.

Because the percentage of alcohol in the blood diminishes with time, an effort

to secure evidence of blood-alcohol content by drawing blood from a suspect after his

arrest is a reasonable search incident to arrest. Schmerber v. California, 384 U.S. 757,

770-71 (1966); United States v. Eagle, 498 F.3d 885, 892 (8th Cir. 2007). Dodd

contends that Schmerber justifies only the taking of the blood, and not the subsequent

testing. He posits that the drawing of the blood is a reasonable “seizure,” but that the

testing is a separate “search” that must be justified independently. He relies on Walter

v. United States, 447 U.S. 649, 654 (1980) (plurality opinion), where a plurality of the

Court concluded that the FBI’s lawful possession of films did not give them authority

to search the contents for evidence of obscenity, and on the holding of United States

v. Jacobsen, 466 U.S. 109 (1984), that “[e]ven when government agents may lawfully

seize such a package to prevent loss or destruction of suspected contraband, the Fourth

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Amendment requires that they obtain a warrant before examining the contents of such

a package.” Id. at 114.

Jones is entitled to judgment on this claim, because the testing of Dodd’s blood

required no justification beyond that which was necessary to draw the blood on the

night of the accident. Schmerber indicates that the taking and later analysis of the

blood are “a single event for fourth amendment purposes,” United States v. Snyder,

852 F.2d 471, 474 (9th Cir. 1988), and that “a ‘search’ is completed upon the drawing

of the blood.” Johnson v. Quander, 440 F.3d 489, 500 (D.C. Cir. 2006). The Court

in Schmerber held that probable cause to believe an arrested driver was intoxicated,

together with the likelihood that delay in taking blood from the driver would result in

the loss of evidence as alcohol dissipated, justified not only the drawing of blood, but

also the introduction of the subsequent “chemical analysis” into evidence. 384 U.S.

at 766-67. Therefore, once Jones had sufficient grounds to draw blood from Dodd

after he was arrested for driving while intoxicated, the subsequent testing of that blood

had “no independent significance for fourth amendment purposes.” Snyder, 852 F.2d

at 474.

C.

Dodd asserts that Jones violated a “right of privacy” by obtaining the blood

sample from paramedic Jay Fry without complying with HIPAA. He alleges that

HIPAA superseded a Missouri statute that requires medical personnel “acting at the

request and direction of [a] law enforcement officer” to “withdraw blood for the

purpose of determining the alcohol content of the blood.” Mo. Rev. Stat. § 577.029.

We agree with the district court that this claim fails because HIPAA does not create

a private right of action. Adams v. Eureka Fire Prot. Dist., 352 F. App’x 137, 139

(8th Cir. 2009); Acara v. Banks, 470 F.3d 569, 571-72 (5th Cir. 2006).

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III.

Finally, Dodd makes a conclusory assertion that “the district court’s findings

concerning official capacity . . . are inapposite and are error.” We treat Dodd’s claim

against Jones in his official capacity as a claim against the Missouri State Highway

Patrol. See Hafer v. Melo, 502 U.S. 21, 25 (1991). The Highway Patrol, as an “arm

of the state of Missouri,” is entitled to sovereign immunity. See Thomas v. St. Louis

Bd. of Police Comm’rs, 447 F.3d 1082, 1086 n.8 (8th Cir. 2006). The district court

thus correctly dismissed this claim. See Monroe v. Ark. State Univ., 495 F.3d 591,

594 (8th Cir. 2007).

Dodd’s official capacity claim against Thorn amounts to a claim against

Lawrence County. Because Dodd has not presented sufficient evidence that Thorn

committed a constitutional violation, the claim for municipal liability necessarily fails

as well. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).

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The judgment of the district court is affirmed.

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