Ringuette v. City of Fall River

United States Court of Appeals

For the First Circuit

No. 96-1107

ROGER RINGUETTE,

Plaintiff, Appellant,

v.

CITY OF FALL RIVER, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

Before

Selya, Boudin and Lynch,

Circuit Judges.

Brian R. Cunha with whom Brian Cunha & Associates was on brief

for appellant.

Mary O'Neil, First Assistant Corporation Counsel, Law

Department, for appellees City of Fall River and Richard Levesque.

Andrew B. Peppard and Borders, Littman & Peppard on brief for

appellee Richard Levesque.

William G. Camara with whom William G. Camara, P.C. was on

brief for appellee Raymond Paradis.

June 4, 1998

BOUDIN, Circuit Judge. Roger Ringuette brought this

action in the district court against the City of Fall River and

several police officers for medical injuries that he suffered,

through inattention by the police, while he was in police custody.

He recovered a judgment against the city for negligence, but the

district court dismissed on qualified immunity grounds a "Fourth

Amendment" claim against two police officers.

Save in one significant respect, the background facts

pertinent to the appeal are undisputed. On July 27, 1992, at about

7 p.m., police in Fall River, Massachusetts, responded to a report

of a disabled person and found Ringuette slumped over a car in a

stupor. According to the officers, Ringuette was unsteady on his

feet, had bloodshot eyes, and smelled of alcohol. Believing him to

be drunk, the police asked if he wanted a ride home. He replied,

"to my brother's" but gave no address. Asked if he wanted to go to

"detox," he gave the same answer.

Later evidence indicates that Ringuette was suffering

from an overdose of prescription pills, although the police did not

know this at any relevant time. Not knowing how to contact

Ringuette's brother, the police took Ringuette into protective

custody pursuant to the Massachusetts Alcoholism Treatment and

Rehabilitation Act, Mass. Gen. Laws ch. 111B, 8. The police

handcuffed him, put him in the police car and drove him to the

station.

Under section 8 of the Act, a person incapacitated by

alcohol is to be taken with or without his consent to his own

residence, to a treatment facility, or to a police station. If

taken to a police station, the officer in charge is to transfer him

to the nearest treatment facility, if available. The statute

continues:

No person assisted to a police station

pursuant to this section shall be held in

protective custody against his will; provided,

however, that if suitable treatment at a

[treatment] facility is not available, an

incapacitated person may be held in protective

custody at a police station until he is no

longer incapacitated or for a period not

longer than twelve hours, whichever is

shorter.

In fact, Ringuette remained at the facility for more than

twelve hours--whether he was "held" after twelve hours is a

different question--and during this period he suffered serious

injury. Ringuette was booked into the police station at 7:19 p.m.

and assisted to a cell which was neither monitored by video camera

nor directly observable by the booking officer. No call was made

to the local treatment center; but according to later evidence, no

bed was then available, and the center had not admitted anyone from

the police station on short notice in the previous seven years.

During the night of July 27-28, Ringuette was monitored

by an officer at 15-minute intervals, as required by department

regulations. According to the officer, at around 5 a.m., the

officer found Ringuette standing in his cell and asked if he was

ready to be released; in reply, Ringuette swore at him. The

officer further testified that at the officer's last check, at 6:20

a.m., Ringuette said he was not ready to leave and was told that he

would nevertheless be released when the officer of the next shift

came on in about 15 minutes.

Officer Paradis, one of the three individuals named as a

defendant in this case, took over as booking officer at 6:50 a.m.

on July 28 and was told of the prior conversation with Ringuette.

Paradis knew Ringuette from prior periods of protective custody.

According to Paradis, shortly after he came on duty, he asked

Ringuette if he wanted to leave, and Ringuette replied in "slurred"

speech: "I've got nowhere to go and I'm still half in the bag."

Told of these events, Sergeant Levesque, who was then the

supervising sergeant, authorized Paradis to fill out a second

protective custody form, although the statute makes no reference to

a second form and provides for protective custody "for a period of

not longer than twelve hours."

It appears that Paradis then checked on Ringuette only a

couple of times in the succeeding eight hours between 7 a.m. and

3 p.m., when Paradis was relieved by another officer. Throughout

his time at the police station, Ringuette was given neither food

nor water, despite the department handbook's policy requiring the

feeding of persons kept in protective custody for more than five

hours. At around 3 p.m., a new officer took over and found

Ringuette sitting and then lying on the floor. At this point,

Ringuette refused food and mumbled incoherently.

Finally, at around 6 p.m. on the evening of July 28,

after Ringuette had been in the cell for almost 24 hours, the

police officer on duty realized that Ringuette was moaning and

making gurgling noises. Levesque called a medical technician who

arrived almost immediately and found that Ringuette was in a state

of shock, lying motionless in a pool of vomit, with eyes dilated

and his pulse racing. At the hospital, doctors found him to be in

severe shock--that is, having no measurable blood pressure--

severely dehydrated with several vital bodily functions impaired,

and suffering from a drug overdose of prescription pills and from

first and second degree burns (which are unexplained).

Ringuette now suffers from seriously impaired use of his

left arm and left leg, caused by "compartmental syndrome." This is

a muscle-tissue condition associated with tissue compression, in

this case due to lying in the same position for a long period and

compounded by the drug overdose. Expert testimony at trial

indicated that the condition likely occurred within three to six

hours prior to the technician's arrival. In the aftermath, Police

Chief McDonald filed charges against Paradis and Levesque and after

a hearing, both were found liable of derelictions.

On June 2, 1993, Ringuette filed a 17-count complaint in

the district court, asserting various state law claims and federal

claims under 42 U.S.C. 1983. The defendants named in the

complaint were the city, Chief McDonald, officer Paradis and

Sergeant Levesque. On summary judgment, defendants obtained a

dismissal of a number of claims, Ringuette v. City of Fall River,

888 F. Supp. 258 (D. Mass. 1995), but several claims were reserved

for trial, and the issue of qualified immunity was not resolved.

This summary judgment decision is not directly challenged on this

appeal, and we confine ourselves solely to the remaining claims

that were not then dismissed on summary judgment.

After the summary judgment decision, the claim against

the city for negligence was left standing (state law barred such a

claim against the police officers). McDonald had been dismissed

from the case on summary judgment, but two constitutional claims

remained against Paradis and Levesque: a so-called "Fourth

Amendment" claim based on unlawful seizure, and a claim under the

Fourteenth Amendment's due process clause for deliberate

indifference to Ringuette's medical needs while in police

custody. As to these claims, the district court said that it

could not resolve qualified immunity issues without factfinding and

sent the claims to trial. 888 F. Supp. at 266, 270.

The case was tried over a number of days in October and

November, 1995. After the evidence was presented but before

submitting the case to the jury, the court withdrew the Fourth

Amendment claim on qualified immunity grounds, granting the

officers' motions for judgment as a matter of law; the court's

reasoning is set forth in a published memorandum. 906 F. Supp. 55

(D. Mass. 1995). The court then submitted to the jury, together

with a special verdict form, the Fourteenth Amendment claims

against the officers and the negligence claim against the city.

By special verdict, the jury denied recovery against the

officers, finding that Ringuette had failed to prove that either

officer acted with "such recklessness as to constitute deliberate

indifference to Ringuette's serious medical needs." As to the

city, the jury found that it was liable for negligence and

eventually set damages at $1,780,360. Based on a statutory cap,

the court later reduced damages to $100,000. Mass. Gen. Laws ch.

258, 2. Ringuette now appeals, urging that the district court

erred in dismissing the Fourth Amendment claim against the officers

on grounds of qualified immunity.

The central issue on appeal is whether the district judge

properly sustained the defense of qualified immunity on the Fourth

Amendment claim, but we first face a threshold issue: Ringuette

says that while Levesque pleaded the defense in his answer to the

complaint, Paradis failed to do so and therefore waived it.

Qualified immunity is an affirmative defense, Fed. R. Civ. P. 8(c),

and an affirmative offense is generally lost unless it is raised in

the pleadings. 5 C. Wright & A. Miller, Federal Practice and

Procedure 1278 (2d ed. 1990).

However, Ringuette waived his own procedural objection by

failing to assert it in the district court when the officers moved

for judgment as a matter of law on grounds of qualified immunity.

Apparently, no one realized that Paradis had failed to assert this

defense. When Levesque's counsel renewed a general motion for

judgment as a matter of law after the close of evidence, a motion

previously joined in by all defendants, the district judge held

both officers protected by qualified immunity without

distinguishing between them. 906 F. Supp. at 58. After the jury

verdict, Ringuette's counsel moved for reconsideration on the

qualified immunity issue but argued it again on the merits without

suggesting that Paradis had waived the defense.

Paradis' failure to assert the defense in his answer to

the complaint did not prejudice Ringuette, because Ringuette's

position on qualified immunity is the same as to both officers, and

he presented it to the district court both before the summary

judgment decision and after the ruling at trial. Had the waiver

objection been raised in the district court, Paradis would have had

a good chance of persuading the district judge to allow the defense

by an amendment to the answer. The issue, in short, was presented

to the court without objection and decided on the merits.

Accordingly, Ringuette's procedural objection fails. Manchester

Gardens, Inc. v. Great West Life Assur. Co., 205 F.2d 872, 877

(D.C. Cir. 1953); Fed. R. Civ. P. 15(b).

The merits of the qualified immunity defense, ably

analyzed by the district judge in her published opinion, are more

troublesome. At issue are Ringuette's claims that he was "seized"

by being detained by the police in protective custody, and that

this seizure became "unreasonable" under the Fourth Amendment when

a twelve-hour time limit under state law expired. On this double

premise, he sought damages for the medical injuries he suffered on

the ground that they flowed from a state actor's violation of his

federal constitutional right under color of state law. 42 U.S.C.

1983.

Under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), the

police in their arrest and detention functions are normally

"shielded from liability for civil damages" under federal law

insofar as their conduct does not violate "clearly established"

rights of which "a reasonable person would have known." It is not

enough for the constitutional right to be "clearly established" at

a highly abstract level; what matters is whether in the

circumstances faced by the official, he should reasonably have

understood that his conduct violated clearly established law.

Berthiaume v. Caron, F.3d. (1st Cir. 1998), 1998 WL 178384 at

*3. This qualified immunity standard leaves "ample room for

mistaken judgments." Malley v. Briggs, 475 U.S. 335, 343 (1986).

The district court said that while the issue was "far

from clear cut," "Ringuette's re-PC [i.e., the renewal of the

protective custody order after the first twelve hours] was a Fourth

Amendment seizure conducted without lawful authority, and

therefore, was unreasonable." 906 F. Supp. at 57. And while not

every violation of a state statute bearing on detention would

necessarily constitute an "unreasonable" seizure under the Fourth

Amendment, we agree with the district court that the statute's

twelve-hour limitation on protective custody was intended as a

fundamental limitation on state authority to detain Ringuette.

If Ringuette had gotten up after twelve hours and

demanded to be released, it is likely that a refusal to let him out

would have constituted not only a violation of the Fourth Amendment

but one that a reasonable Massachusetts police officer should have

known to be such a violation. Even without any direct precedent,

the explicit limitation in the state statute arguably made further

involuntary detention a constitutional violation clear enough--on

most facts--so as to negate any police claim of a reasonable

mistake. United States v. Lanier, 117 S. Ct. 1219, 1227-28 (1997).

The difficulty for Ringuette is that this leaves out half

of the story. Ringuette was not a citizen demanding to be released

from confinement. He was, from all appearances, still drunk or

otherwise incapacitated, and--according to the district court

findings--he rebuffed two offers to release him, one made shortly

before the end of the twelve-hour period and one made not long

thereafter. Nor did he later ask to leave. The notion that police

officers should simply have put Ringuette out on the street against

his will in his then-apparent condition is implausible.

Thus, while Ringuette's further "confinement" can be

called an unreasonable seizure once the twelve-hour period had

passed, the unreasonableness was obviously mitigated by the offers

to release him, the belief that he remained incapacitated, and the

implicit willingness to let him go whenever he said he was ready.

The police decision was neither at odds with "clearly established"

case law under the Fourth Amendment, nor so manifestly unreasonable

a "seizure" that any reasonable police officer should have regarded

it as such. That is enough for qualified immunity. Joyce v. Town

of Tewksbury, Mass., 112 F.3d 19, 22-23 (1st Cir. 1997).

Having jailed Ringuette and left him in the cell, the

police not only assumed a duty of reasonable care--which the city

was found to have breached--but also in their later supervision

arguably exhibited a deliberate indifference to Ringuette's medical

needs so as to subject them to potential liability under the

Fourteenth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976);

Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st

Cir. 1990). The latter was at best a debatable claim since the

deliberate indifference standard is more than negligence. Manaritev. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992). In any

case, the jury squarely rejected it in its verdict in favor of the

police officers.

Because the offers to Ringuette to release him and his

refusals are of importance, we note that these "facts" were not

entirely undisputed. Ringuette's brief refers to, but does not

develop, testimony by his medical expert at trial suggesting that

Ringuette was clearly incapacitated and perhaps incapable of speech

for the last several hours of his confinement and may have been so

incapacitated at an earlier period. Depending on how the doctor's

somewhat ambiguous testimony is read, it might be argued that this

testimony is in conflict with that of the two officers who said

that Ringuette was offered the opportunity to leave but twice

apparently declined.

If so, the district court, in dismissing the Fourth

Amendment claim on qualified immunity grounds, resolved the dispute

in favor of the officers, concluding that the testimony

"demonstrated that . . . when attempts were made to release

Ringuette, he expressed a desire to remain there, or responded in

a way which the police officers believed indicated consent." 906

F. Supp. at 58. This finding is supported by testimony of two

different police officers, one of them not a defendant in the case,

and it is not directly challenged on appeal.

Something of a "black hole" exists in the law as to how

to resolve factual disputes pertaining to qualified immunity when

they cannot be resolved on summary judgment prior to trial. To

avoid duplication, judges have sometimes deferred a decision until

the trial testimony was in or even submitted the factual issues to

the jury. See St. Hilaire v. City of Laconia, 71 F.3d 20, 24 n.1

(1st Cir. 1995), cert. denied, 518 U.S. 1017 (1996). In all

events, the district judge's procedure here, which is not

challenged on appeal, seems to us to have been eminently sensible.

Affirmed.