Sullivan, Jeffrey J. v. Bornemann, Jon

In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-2479

JEFFREY J. SULLIVAN,

Plaintiff-Appellant,

v.

JON BORNEMANN and ED WHEALON,

Defendants-Appellees.

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Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 00-C-1392—William C. Griesbach, Judge.

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ARGUED JANUARY 14, 2004—DECIDED SEPTEMBER 14, 2004

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Before FLAUM, Chief Judge, and POSNER and DIANE P.

WOOD, Circuit Judges.

DIANE P. WOOD, Circuit Judge. After Jeffrey Sullivan was

arrested for disorderly conduct, the Shawano County Jail in

Wisconsin refused to admit him without a medical clear-

ance, because of his high breathalyzer test result. To obtain

that clearance, officers Jon Bornemann and Ed Whealon took

Sullivan to the emergency room of a local hospital. After

Sullivan failed voluntarily to produce a urine sample, the

emergency room doctor ordered a catheterization. At the

direction of medical personnel, Bornemann and Whealon

physically restrained Sullivan during the brief procedure.

2 No. 03-2479

Believing that the officers’ actions violated his constitu-

tional rights, Sullivan brought suit under 42 U.S.C. § 1983

and added a supplemental battery claim under Wisconsin

law. Ruling on stipulated facts, the district court concluded

that even if Bornemann and Whealon were not authorized

to restrain Sullivan, qualified immunity shielded the officers

from any liability. We affirm the judgment based on our

conclusion that no constitutional violation occurred, which

makes it unnecessary for us to reach the second part of the

qualified immunity inquiry.

I

On November 14, 1999, Bornemann arrested Sullivan and

charged him with disorderly conduct. Sullivan was eventually

handcuffed after initially resisting arrest. A pat-down search

of Sullivan’s person turned up a marijuana pipe. Bornemann

then transported Sullivan to the Shawano County Jail for

processing, where jail personnel administered a

breathalyzer test. When Sullivan’s test registered a .25,

indicating a high level of intoxication, the jail refused to admit

him without a medical clearance. Bornemann transported

Sullivan to the Shawano Medical Center emergency room.

Upon arrival at the hospital, Sullivan became so uncoop-

erative and verbally abusive that Bornemann called for

assistance. Whealon responded to the call, and the two

officers accompanied Sullivan into the emergency room. Kathy

Actenberg, a certified nurse employed by the Medical

Center, took Sullivan’s vital signs and noted that he had an

elevated heart rate and blood pressure in the upper range of

a normal reading. Nurse Actenberg also observed that

Sullivan was uncooperative, angry, and combative, and that

he seemed disoriented and intoxicated. She knew that

Sullivan had a high breathalyzer result and had been found

with a marijuana pipe.

No. 03-2479 3

After Nurse Actenberg reported these findings to emer-

gency room doctor Rajeshwar Hanmiah, also employed by

the Medical Center, Dr. Hanmiah directed her to obtain a

urine sample from Sullivan. Dr. Hanmiah testified that he

gave this order because Sullivan’s behavior was erratic and

inconsistent with his level of intoxication and elevated

heart rate. Further, Dr. Hanmiah was concerned that

Sullivan may have ingested other drugs that would interact

with the alcohol in his system. Dr. Hanmiah did not,

however, document these concerns on Sullivan’s medical

chart.

After receiving instructions from Dr. Hanmiah, Nurse

Actenberg asked Sullivan to produce a urine sample vol-

untarily. Sullivan tried but ultimately failed to do so, even

after Nurse Actenberg ran water in the bathroom sink to

assist him. After half an hour had passed, Dr. Hanmiah

directed Nurse Actenberg to obtain a sample by cathe-

terization, a routine non-surgical procedure. Dr. Hanmiah

testified that he ordered the procedure based on medical

necessity after reviewing Sullivan’s physical appearance,

disposition, and vital signs.

Nurse Actenberg explained to officers Bornemann and

Whealon that Sullivan’s ability for movement had to be

restricted to minimize the risk of injury and infection during

the brief procedure. She did not solicit, nor did the officers

offer, any opinions or suggestions about Sullivan’s medical

care. They played no role in Dr. Hanmiah’s decision to order

a catheterization. Moreover, Bornemann specifically

informed Sullivan that the urine sample would not be used

for criminal prosecution or other evidentiary purposes.

After Sullivan was placed on an emergency room bed,

Bornemann restrained Sullivan by placing his arms around

Sullivan’s legs and placing his upper body across Sullivan’s

legs, using his body weight to hold Sullivan’s legs station-

ary. Whealon applied a pressure point technique consistent

4 No. 03-2479

with his law enforcement training to minimize Sullivan’s

movement. The technique involved Whealon’s placing his

index finger under the bridge of Sullivan’s nose and apply-

ing pressure. While Sullivan was restrained by the officers,

Nurse Actenberg passed a catheter up Sullivan’s urethra to

obtain a urine sample. The entire process lasted approxi-

mately one minute, with the actual catheterization taking

between 4-6 seconds. Subsequent to the procedure, neither

Bornemann nor Whealon had any further physical contact

with Sullivan. After receiving a medical clearance, Bornemann

transported Sullivan back to the Shawano County Jail for

processing.

Sullivan never consented to the catheterization and claims

that he suffered pain from the procedure and from the pres-

sure point technique applied by Whealon. This prompted

him to file the present § 1983 action against the two police

officers, Dr. Hanmiah, Nurse Actenberg, and the Shawano

Medical Center, alleging violations of his federal constitu-

tional rights. Sullivan alleged a violation of his Fourth

Amendment protections against unreasonable search and

seizure and a violation of his due process right to refuse

unwanted medical treatment. He also asserted a battery

claim against officers Bornemann and Whealon and a medical

malpractice claim against the hospital defendants.

The district court granted summary judgment in favor of

Dr. Hanmiah, Nurse Actenberg, and the Shawano Medical

Center on both the § 1983 claims (because the conduct al-

leged was not done under color of state law) and the medical

malpractice claims (because no finder of fact could conclude

that the hospital defendants had violated any applicable

standards of care). Later, after the case was transferred to

a different district judge, the court dismissed the federal

and state claims against officers Bornemann and Whealon

on qualified immunity grounds.

The district court’s analysis first considered the source of

authority that permitted Dr. Hanmiah to order the cathe-

No. 03-2479 5

terization notwithstanding Sullivan’s refusal to consent. It

concluded that the physician may not have faced a medical

emergency that justified ignoring Sullivan’s refusal to consent

to the catheterization procedure. Imputing this finding to

the police officers, the court concluded that if the doctor’s

catheterization order was not legally justified, Bornemann

and Whealon may not have been authorized to assist by

restraining Sullivan.

The court ultimately held, however, that the officers were

shielded from liability on the basis of qualified immunity:

even if Dr. Hanmiah’s medical order was not justified as a

matter of law, the defendant officers did not violate any of

Sullivan’s clearly established rights by restraining him be-

cause a rule to the contrary would force police officers to

second-guess the medical judgment of emergency room

physicians. The district court dismissed the constitutional

claims against Bornemann and Whealon on this ground.

The district court also dismissed the battery claim, concluding

that Wisconsin law immunized the officers from liability

because they acted in a discretionary capacity.

Sullivan appeals only from the rulings concerning

Bornemann and Whealon, leaving undisturbed the district

court’s resolution of his federal and state law claims against

the hospital defendants.

II

The district court entered its judgment after receiving a

stipulation of the facts from the parties. Although the par-

ties suggest that we should review the judgment as if the

court had granted summary judgment, we have explained

that the proper standard of review that governs this pro-

cedure, more akin to a bench trial than anything else, is

found in Federal Rule of Civil Procedure 52(a). Hess v.

Hartford Life & Accident Ins. Co., 274 F.3d 456, 461 (7th

Cir. 2001) (internal citations omitted). “As we would after

6 No. 03-2479

a bench trial, we will review the district court’s legal con-

clusions de novo and review any factual inferences the

district court made from the stipulated record as well as its

application of the law to the facts for clear error.” Id.;

Fillmore v. Page, 358 F.3d 496, 503 (7th Cir. 2004).

We review the district court’s grant of qualified immunity de

novo. Delgado v. Jones, 282 F.3d 511, 515 (7th Cir. 2002). In

Saucier v. Katz, 533 U.S. 194 (2001), the Supreme Court

explained the two-step procedure federal courts must use in

considering a qualified immunity defense. Id. at 200. “[T]he

first inquiry must be whether a constitutional right would

have been violated on the facts alleged; second, assuming

the violation is established, the question whether the right

was clearly established must be considered on a more

specific level . . . .” Id. The threshold question is thus

whether the facts alleged here, taken in the light most

favorable to Sullivan, show that the officers’ conduct vio-

lated Sullivan’s constitutional rights. Saucier, 533 U.S. at

200; Siegert v. Gilley, 500 U.S. 226, 232 (1991). We conclude

that the answer is no.

Sullivan is not asking us to decide whether the Shawano

County Jail’s medical clearance process infringed his con-

stitutional rights. Indeed, he conceded at oral argument

that such a procedure serves a legitimate state purpose.

Bell v. Wolfish, 441 U.S. 520 (1979), holds that a particular

condition or restriction accompanying pretrial detention is

constitutionally permissible if it is reasonably related to a

legitimate governmental objective. Id. at 539. The defen-

dants assert, rightly in our view, that they have an obvious

interest in ensuring that detainees admitted to the jail do

not need immediate medical care, as such treatment and

care may not be readily available. Without such a proce-

dure, law enforcement officials risk liability if a medical

emergency occurs while the detainee is in their custody. See

Estate of Allen v. City of Rockford, 349 F.3d 1015, 1020 (7th

Cir. 2003) (explaining that police officers “would have left

No. 03-2479 7

themselves open to charges of due process violations for

failure to provide appropriate medical care to a pretrial

detainee” if they prevented necessary medical treatment);

Collignon v. Milwaukee County, 163 F.3d 982, 991 (7th Cir.

1998) (stating that the county had a duty to provide for the

basic medical needs of a pretrial detainee). We have ap-

proved of similar policies calculated to provide reasonable

safety to persons in police custody. 163 F.3d at 990 (upholding

a jail’s enforcement of a suicide watch as “a preventative

safety measure” that was prudently designed to eliminate

the risk of injury to the detainee). Thus, there is no ques-

tion that the defendants had a legitimate state interest in

taking Sullivan to the emergency room for a medical clearance

after he registered a high score on the breathalyzer test.

This case instead poses a far narrower question: did the

officers’ acquiescence in the nurse’s request to help her re-

strain Sullivan during the brief catheterization procedure

violate his rights under either the Fourth or Fourteenth

Amendments? The question is narrow for several reasons.

Sullivan has not appealed the district court’s rulings dis-

missing the hospital defendants, including the doctor who

ordered the catheterization or the nurse who performed it.

It is undisputed that Bornemann and Whealon had no input

into Sullivan’s medical care once he arrived in the emer-

gency room. In addition, Sullivan has not argued that the

catheterization was used to search for evidence determining

his guilt or innocence. It is uncontested that the

catheterization was performed solely to assure Sullivan’s

medical well-being before he was transported to the county

jail. We express no opinion on how, if at all, a difference in

any of these circumstances would affect the analysis.

Sullivan’s Fourth Amendment claim challenges only his

right to be free of an unreasonable search and seizure; he

has not argued that Bornemann and Whealon used exces-

sive force in restraining him. Sullivan bases his Fourth

Amendment argument on search-and-seizure cases examining

8 No. 03-2479

physically invasive procedures used to retrieve evidence

from the person of the defendant. Winston v. Lee, 470 U.S.

753, 766 (1985) (finding that a compelled surgical procedure

to recover a bullet from beneath the skin of a robbery

suspect violated the Constitution); Rochin v. California, 342

U.S. 165, 172 (1972) (suppressing evidence obtained when

the police had the defendant’s stomach pumped to retrieve

capsules that they could not forcibly extract from his

mouth); Schmerber v. California, 384 U.S. 757, 771 (1966)

(determining that the state could submit drunk drivers to

a blood test for purposes of collecting evidence); United

States v. Husband, 226 F.3d 626, 631-33 (7th Cir. 2000)

(considering whether police may use general anesthesia to

recover evidence from the person of the defendant); see also

Sparks v. Stutler, 71 F.3d 259, 261 (7th Cir. 1995) (deter-

mining that a catheter could be used for the purpose of

evidence retrieval). These cases do not answer the question

before us, however, because Sullivan’s catheterization was

not ordered by law enforcement officers to establish

Sullivan’s guilt or innocence. The results of the test, which

incidently showed the presence of both alcohol and mari-

juana, were never used in Sullivan’s criminal proceedings.

While the Fourth Amendment does protect Sullivan’s

expectations of privacy, the law provides that this applies

only to “legitimate expectations that in certain places and

at certain times [an individual] has the right to be let

alone.” Winston, 470 U.S. at 758 (citation and internal quo-

tation marks omitted) (emphasis added). It is clear that

Sullivan’s expectations of privacy diminished substantially

once he was arrested for disorderly conduct (an arrest that

he has not challenged on probable cause or other grounds),

found to have drug paraphernalia on his person, and re-

corded a high alcohol level on the breathalyzer test. At that

point, the officers were entitled to seek medical attention.

There is no rule to the effect that law enforcement offi-

cials are constitutionally prohibited from briefly restraining

No. 03-2479 9

a detainee at the direction of qualified medical personnel,

with the purpose of minimizing injury to the detainee.

Under the circumstances here, which we have already

recounted, the officers’ actions were entirely reasonable. As

the district court correctly noted in its discussion of the

qualified immunity defense, a holding to the contrary would

place law enforcement officers in the impossible position of

having to second-guess the medical judgments of emergency

room physicians. Police officers like Bornemann and Whealon

should not be at risk of liability under § 1983 for medical

decisions made exclusively by the emergency room physi-

cian. We conclude that the officers’ actions under the cir-

cumstances presented here did not violate Sullivan’s rights

under the Fourth Amendment. See Florida v. Jimeno, 500

U.S. 248, 250 (1991) (noting that the “touchstone of the

Fourth Amendment is reasonableness”).

Sullivan’s due process claim is even less compelling. He

relies primarily on Cruzan v. Missouri Dept. of Health, 497

U.S. 261, 278 (1990), which held that a competent person

has a constitutionally protected liberty interest in refusing

unwanted medical treatment. But Cruzan, which dealt with

the rights of a person in a persistent vegetative state, has

little applicability to these facts. Moreover, the passage in

Cruzan on which Sullivan relies is followed by an important

qualification, in which the Court said that “determining

that a person has a liberty interest under the Due Process

Clause does not end the inquiry; whether respondent’s con-

stitutional rights have been violated must be determined by

balancing his liberty interests against the relevant state

interests.” Id. at 279. We have already noted that the state

has a substantial interest in assuring the medical stability

of its pretrial detainees; indeed, were it to be deliberately

indifferent to their health, it could be sued under the

Fourteenth Amendment. Allen, 349 F.3d at 1020. Applying

the balancing process envisioned by Cruzan, we have little

trouble finding that the minimal invasion of his privacy

interest here is outweighed by the state’s interest.

10 No. 03-2479

Moreover, Bornemann and Whealon played only a minor

role in the alleged invasion of his rights. They had nothing

to do with Dr. Hanmiah’s decision to order the catheteriza-

tion. Allen, 349 F.3d at 1021 (“Conspicuously absent from

the Cruzan opinion is any language suggesting that state

actors who are not physicians must prevent unwanted

medical treatment . . . .”) Furthermore, Sullivan strains

Cruzan by characterizing the county jail’s clearance process

as the type of medical care for which his consent is re-

quired. As his attorney conceded, Sullivan had no right to

refuse treatment once he was arrested and transported to

the emergency room. Bornemann and Whealon’s role in the

catheterization procedure did not violate any Fourteenth

Amendment norm concerning unwanted medical care. Be-

cause their brief restraint of Sullivan did not violate Sullivan’s

constitutional rights under either the Fourth or Fourteenth

Amendments, we need not consider whether the rule for

which Sullivan contends was clearly established, or if the

officers were entitled to qualified immunity. Saucier, 533

U.S. at 201.

III

Sullivan also brought a battery claim against Bornemann

and Whealon under Wisconsin law. A Wisconsin statute pro-

vides that no action may be maintained against public

agencies or employees for acts done in the exercise of “legi-

slative, quasi-legislative, judicial, or quasi-judicial func-

tions.” Wis. Stats. § 893.80(4). Wisconsin courts have

recognized these quoted terms as being synonymous with

“discretionary functions,” Kimpton v. School Dist., 405

N.W.2d 740, 743-74 (Wis. Ct. App. 1987) (citation omitted),

and have held that a public officer is immune from suit

where the act or acts complained of fall within the scope of

the individual’s public office. C.L. v. Olson, 422 N.W.2d 614,

617-20 (Wis. 1988). The district court dismissed Sullivan’s

No. 03-2479 11

battery claim because it concluded that Bornemann and

Whealon acted in a discretionary capacity when they

obtained a medical clearance for Sullivan. Sullivan has

raised no argument on appeal to persuade us to reconsider

the district court’s resolution of this claim.

IV

For these reasons, we AFFIRM the judgment of the district

court.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—9-14-04