Sallenger v. City of Springfield, Ill.

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3769

M ARY S ALLENGER, as the

Administrator of the Estate of

A NDREW B. S ALLENGER, deceased,

Plaintiff-Appellant,

v.

C ITY OF S PRINGFIELD, ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 3:03-cv-03093—Jeanne E. Scott, Judge.

A RGUED F EBRUARY 9, 2010—D ECIDED D ECEMBER 17, 2010

Before P OSNER, R OVNER, and SYKES, Circuit Judges.

S YKES, Circuit Judge. Andrew Sallenger, 35, suffered

from bipolar disorder and schizophrenia, and in the

early-morning hours on April 30, 2002, he experienced

a psychotic episode while staying at his mother’s house

in Springfield, Illinois. A family member called 911 and

reported that he was screaming and “running around the

2 No. 08-3769

house naked” in an agitated and uncontrollable

state. Three Springfield police officers responded to

the scene, and a violent struggle ensued. The officers

eventually subdued Sallenger and restrained him in a

“hobble”—essentially a cord that is looped around a

suspect’s lower legs and then connected to a strap that

is attached to handcuffs. A few minutes after he was

hobbled, Sallenger stopped breathing. The officers re-

moved the hobble, attempted CPR, and called for an

ambulance, but Sallenger never regained consciousness.

He was later pronounced dead at the hospital.

Sallenger’s estate brought several state and federal

claims against the three officers and the City of Spring-

field, but only two are relevant on this appeal: (1) a

claim against the officers for inadequately responding

to Sallenger’s medical needs during the course of the

arrest, in violation of the Fourth Amendment and made

actionable under 42 U.S.C. § 1983; and (2) a claim against

the City under Monell v. Department of Social Services,

436 U.S. 658 (1978), for failure to train the officers in

how to use hobbles. The district court entered summary

judgment for the defendants on both claims. The

Estate contends this was error. It was not. The record

is clear that the officers began CPR and called

paramedics as soon as they realized Sallenger was not

breathing, and this satisfies the Fourth Amendment’s

reasonableness standard. As for the Monell claim

against the City, it is linked to the Estate’s excessive-

force claim against the officers for improper use of the

hobble. That claim was tried to a jury after qualified

immunity was denied, and a no-liability verdict was

No. 08-3769 3

rendered for the officers. Because the officers did not

violate Sallenger’s Fourth Amendment rights by the way

in which they used the hobble, the City itself cannot be

liable under Monell for failure to properly train them in

the use of the device.

I. Background

This case is before this court for a second time. Our

first decision, Sallenger v. Oakes, 473 F.3d 731 (7th Cir.

2007), affirmed the district court’s denial of the officers’

motion for summary judgment based on qualified immu-

nity. That decision contains a full factual account of the

case; we will review here only those facts pertinent to

this appeal. On April 30, 2002, Andrew Sallenger was

staying with his mother, Mary Sallenger, at her home

in Springfield. Kim Nolan, Sallenger’s sister, was also

staying at the home, together with her four children.

Sallenger was a schizophrenic and also suffered

from bipolar manic depression, and he experienced a

psychotic episode in the early-morning hours on April 30.

Nolan called 911 at 1:49 a.m. and told the dispatcher

that her brother had woken everyone up screaming and

“breaking all kinds of stuff.” She said he was “very psy-

chotic” and was “running around the house naked in

front of the kids and everything.” She also told the dis-

patcher that responding officers would “need a lot of

backup because he is out there bad and he’s very strong.”

Three Springfield police officers were dispatched to

the scene.

Sergeant James Zimmerman, Officer Brian Oakes, and

Officer Jason Oliver arrived shortly after 2 a.m., and

4 No. 08-3769

Nolan quickly informed them of Sallenger’s condition.

The officers entered the house and found Sallenger in a

bedroom, in the physical and mental state Nolan had

described. The officers approached to try to subdue

and arrest him, and a violent struggle took place.

Sallenger was, as Nolan had suggested, very strong; at

6 feet tall and 262 pounds, he was also a very large man.

The officers used pepper spray, physical blows, and

pressure-point techniques in response to Sallenger’s

strenuous resistance. They eventually managed

to handcuff Sallenger, and then restrained him in the

hobble. After Sallenger was hobbled, Sergeant Zim-

merman emerged from the bedroom to wash pepper-

spray residue from his eyes. According to Nolan’s

version of events, a few minutes later she heard her

brother scream three times. She went into the bedroom,

saw that he was not breathing, and yelled, “you killed

my brother.” The officers’ version is a little different,

but all parties agree that within minutes of being

hobbled, Sallenger stopped breathing. When the officers

realized this, they removed the hobble, started CPR, and

called for paramedics.

At the time of the incident, the City permitted officers

to use hobbles in cases in which a suspect in custody

is displaying or has indicated signs of a hostile and com-

bative nature. But the City did not specifically train its

officers in how to use them. The hobble used on

Sallenger was not issued by the City; rather, Officer

Oakes purchased it from a retail website. Oakes had

read the instructions that came with the hobble and had

seen other officers use them. Zimmerman testified that

No. 08-3769 5

he was aware that restraining a suspect in a hobble

could cause positional asphyxiation if the suspect

was not turned on his side.

The main point of contention in this appeal is not

the officers’ use of the hobble (more on that in a mo-

ment) but whether the officers responded appropriately

once they realized that Sallenger was not breathing.

Springfield Police Lieutenant Mark Bridges arrived on

the scene within minutes of the hobbling, and the

three officers testified that it was at this point—just after

Bridges arrived—that they realized Sallenger was not

breathing. All four officers— Zimmerman, Oakes, Oliver,

and Bridges—testified that they immediately removed

the hobble, began CPR, and summoned an ambulance.

Nolan’s testimony also supports this account.

The Estate contends, however, that there was a seven-

minute lag between the time the officers realized

Sallenger was unconscious and the time they began to

administer medical aid. As support for this contention,

the Estate relies on a transcript from the recording of

the calls made on the police radio during the course of

this incident. The transcript reflects that at 2:15 a.m.

a radio call was made from an unidentified officer

who said, “white male, late 30’s [sic], unconscious, unre-

sponsive.” It also reflects a radio call from Lieutenant

Bridges reporting, “I’m out at the scene.” This call is

logged at 2:22 a.m. The Estate infers from the timing of

these radio calls that the officers on the scene realized

Sallenger was unconscious at 2:15 a.m.—seven minutes

before Lieutenant Bridges arrived—but did nothing.

6 No. 08-3769

Lieutenant Bridges testified, however, that it would be

wrong to equate the logged time of his radio call to the

actual moment he arrived at the scene. Events were

chaotic and moving rapidly, and when he arrived, his

attention was focused on assisting the officers at the

scene; the time of his radio call reflects only the point in

time at which he paused to call in his arrival to the dis-

patcher. The call log also reflects that an ambulance was

summoned at 2:23 a.m. Paramedics arrived at 2:29 a.m., but

were unable to resuscitate Sallenger. He was transported

to the hospital, where he spent 24 hours on life support

and was pronounced dead the next day, May 1, 2002.

The Estate filed this action against the City of

Springfield and the officers alleging federal constitu-

tional violations and several state-law claims. As is rele-

vant here, the district court entered summary judgment

on two of the federal claims: (1) a § 1983 claim against

the officers for failing to adequately respond to the

medical needs of a prisoner, in violation of the Fourth

Amendment; and (2) a Monell claim against the City for

failure to train its officers in the use of the hobble. Not

directly at issue on this appeal but relevant nonetheless

is the Estate’s excessive-force claim against the

officers, which focused primarily on their use of the

hobble. The district court denied the officers’ motion for

summary judgment on that claim, finding they were

not entitled to qualified immunity. The officers appealed

from this interlocutory order denying qualified immunity,

and we upheld the district court’s decision. See Sallenger,

473 F.3d at 742. That claim (among others) was then tried

to a jury, and Sergeant Zimmerman and Officer Oakes

No. 08-3769 7

were found not liable. The jury was unable to reach a

verdict on the claim against Officer Oliver. But after a

retrial, he too was found not liable. The Estate does not

contest the jury verdicts on appeal; instead, it chal-

lenges only the district court’s entry of summary

judgment on the medical-care claim against the officers

and the Monell claim against the City.

II. Discussion

We review a district court’s grant of summary

judgment de novo and view all facts and reasonable

inferences in favor of the nonmoving party. King v. E. St.

Louis Sch. Dist. 189, 496 F.3d 812, 816 (7th Cir. 2007).

Summary judgment is appropriate “if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment

as a matter of law.” FED. R. C IV. P. 56(c)(2). In reviewing

the district court’s decision to grant summary judgment,

we “consider only those matters that were before the

district court when it entered the judgment,” not the

evidence offered later at trial. Hildebrandt v. Ill. Dep’t

of Natural Res., 347 F.3d 1014, 1024 (7th Cir. 2003) (quota-

tion marks omitted).

A. The Officers’ Alleged Failure to Provide Medical Care

The Estate claimed that Officers Zimmerman, Oakes,

and Oliver failed to adequately respond when Sallenger

stopped breathing after being hobbled. The Fourth Amend-

8 No. 08-3769

ment’s objective reasonableness standard applies; the

Estate’s claim pertains to the medical needs of a person

under arrest who has not yet had a judicial determina-

tion of probable cause. Williams v. Rodriguez, 509 F.3d

392, 403 (7th Cir. 2007); see also Sides v. City of Champaign,

496 F.3d 820, 828 (7th Cir. 2007) (“The governing

standard at the time of arrest [for medical-care

claims] is the Fourth Amendment’s ban on unreasonable

seizures.”); Lopez v. City of Chicago, 464 F.3d 711, 718-19

(7th Cir. 2006). Generally speaking, four criteria are

examined to determine whether officers responded rea-

sonably to a detainee’s need for medical care: (1) the

officer’s notice of the detainee’s need for medical atten-

tion; (2) the seriousness of the need; (3) the nature or

scope of the required treatment; and (4) any counter-

vailing police interests, e.g., the need to prevent the

destruction of evidence, or other similar law-enforce-

ment interest. Williams, 509 F.3d at 403.

It is undisputed that Sallenger stopped breathing

within a few minutes of being hobbled; the focus here is

on the reasonableness of the officers’ response once they

realized he was unconscious. The Estate argues that the

record supports an inference of a seven-minute gap

between the time the officers realized Sallenger was

unconscious and the time they began to administer

CPR and summon paramedics. This seven-minute lag, the

Estate contends, was unreasonably long given the life-

threatening nature of Sallenger’s medical need. At sum-

mary judgment we draw all inferences from the evidence

in the Estate’s favor, but those inferences must be both

reasonable and find support in the record. See Singer v.

Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). The record

No. 08-3769 9

does not reasonably support the inference that the

officers waited seven minutes before rendering aid.

As we have noted, the Estate’s argument rests on the

timing of two calls from the scene that appear in the

transcript of the police-radio tape recording. As these

events were rapidly unfolding, an unidentified officer

radioed the following information to the dispatcher at

2:15 a.m.: “[w]hite male, late 30’s [sic], unconscious,

unresponsive.” At 2:22 a.m. Lieutenant Bridges radioed

that he was “out at the scene.” The Estate suggest that

these two calls permits an inference that the officers

waited seven minutes before beginning to administer

medical care. We disagree.

Without something more, these two calls do not

support a reasonable inference that the officers did abso-

lutely nothing for seven minutes after realizing Sal-

lenger was not breathing. And there is nothing in the

record to supply the “something more” that is necessary

to make such an inference reasonable. To the contrary,

all three officers and Sallenger’s sister, Kim Nolan—the

primary witness for the Estate—testified consistently

that as soon as the officers realized Sallenger was uncon-

scious, they removed the hobble, began CPR, and sum-

moned an ambulance. This took place immediately

after Lieutenant Bridges arrived at the scene. Lieutenant

Bridges corroborated this account. He also testified that

it would be incorrect to interpret the call log as pin-

pointing the precise time of his arrival; it established

only that at 2:22 a.m. he radioed the dispatcher to

report that he had arrived. The log also reflects that

paramedics were summoned just one minute later, at

10 No. 08-3769

2:23 a.m. Accordingly, all the witnesses agree that the

officers administered medical care very soon, if not im-

mediately, after realizing that Sallenger was not

breathing; the call log is insufficient to undermine this

testimonial unanimity.

The Fourth Amendment requires reasonableness, not

immediacy. Everyone agrees that the officers endured a

tense and dangerous physical ordeal to subdue and

restrain Sallenger, a very large man who was actively

psychotic. Events unfolded rapidly: The officers ar-

rived at the home just after 2 a.m., a violent struggle

ensued, Sallenger was brought under control and

stopped breathing some minutes later, and at 2:23 a.m.

paramedics were summoned. On this record, the district

court was right to conclude that the evidence does not

support the Estate’s claim that the officers’ response to

Sallenger’s medical needs was unreasonable. Accordingly,

summary judgment was properly entered in favor of

the officers on the Fourth Amendment medical-care claim.

B. Monell Claim Based on Failure to Train

In City of Canton v. Harris, 489 U.S. 378, 387 (1989), the

Supreme Court held that in limited circumstances a

municipality may be held liable under § 1983 for con-

stitutional violations resulting from a failure to properly

train police officers. The Estate’s failure-to-train claim

is premised mainly on the fact that the City permitted

its officers to use hobbles but did not train them in the

proper use of this device. But a municipality cannot be

liable under Monell when there is no underlying con-

stitutional violation by a municipal employee. See, e.g.,

No. 08-3769 11

King, 496 F.3d at 817; Jenkins v. Bartlett, 487 F.3d 482,

492 (7th Cir. 2007).

Two alleged constitutional violations might have

formed the basis for Monell liability: (1) the claim that the

officers used excessive force against Sallenger, resulting

primarily from their alleged misuse of the hobble; and

(2) the claim that the officers inadequately responded to

his medical needs during the arrest. But all three officers

were cleared of any constitutional wrongdoing on the

excessive-force claim following jury trials; the Estate

does not challenge these verdicts on appeal. It is true as

a general matter that we review the district court’s entry

of summary judgment on the Monell claim by reference

to the evidentiary record made on summary judgment,

not at trial. Hildebrandt, 347 F.3d at 1024. But the jury

verdicts are now the law of this case, and they con-

clusively establish that no excessive force occurred.

See Teague v. Mayo, 553 F.3d 1068, 1072-73 (7th Cir.

2009). Nor can the medical-care claim against the officers

provide an alternative basis for Monell municipal lia-

bility. For reasons we have already explained, the offi-

cers’ conduct did not violate the Fourth Amendment. Ac-

cordingly, because there is no underlying constitu-

tional violation, the City cannot be liable under Monell.

See Jenkins, 487 F.3d at 492 (“The jury found that Mr.

Jenkins’ constitutional rights were not violated . . . , thus

the City cannot be held liable for any failure to train.”).

A FFIRMED.

12-17-10