Padula v. Leimbach

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3395

W ILLIAM P ADULA , Administrator of

the Estate of Jerome Clement,

Plaintiff-Appellant,

v.

T IMOTHY L EIMBACH, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:07-cv-00035—Joseph S. Van Bokkelen, Judge.

A RGUED M AY 4, 2011—D ECIDED A UGUST 29, 2011

Before E ASTERBROOK, Chief Judge, and F LAUM and

S YKES, Circuit Judges.

F LAUM, Circuit Judge. Jerome Clement, a diabetic, was

suffering from a hypoglycemic episode while driving when

he veered off the road and into a parking lot. Officers

called to the scene had reason to believe he was intoxi-

cated. When he did not comply with their commands to

step out of his car, they physically removed him, maced

2 No. 10-3395

him two or three times, struck him four times with a

baton to place handcuffs on him and prevent him

from kicking his legs and flailing his arms, and kept him

in the prone position until a paramedic arrived. The

paramedic recognized Clement’s condition and eventu-

ally got him to a hospital, where he died of natural

causes roughly two weeks later. William Padula, the

Administrator of Clement’s estate, filed § 1983 claims

against the responding officers, the City of East Chicago

(“the City”), the City of East Chicago Police Department

(“the Police Department”), and Chief Angelo Machuca Jr.

(“Chief Machuca”) for wrongful arrest, excessive force,

failure to train the officers, and condoning the use of

excessive force, in addition to claims under state law.

The district court granted the defendants’ motion for

summary judgment on Padula’s federal claims and re-

manded his state law claims to state court. We affirm.

I. Background

Clement was an insulin-dependent Type 1 diabetic. His

blood sugar periodically dropped, which could cause

him to phase out, fall to the floor, and flail his arms in

a non-combative manner.

On August 24, 2006, while driving to work, Clement

turned his vehicle into the parking lot at Metal Manage-

ment and stopped on or near a truck scale. An em-

ployee approached and asked him to move, but he ap-

peared not to hear what the employee said and

responded in incomprehensible gibberish. Someone

called 911 to report the incident and explained that an

No. 10-3395 3

unresponsive person in a car was blocking the company’s

scale, but that she did not know whether the person

was intoxicated. Before police arrived, Clement’s car

began moving towards a building, prompting someone

at the scene to reach into the car, put it in park, and

remove the keys. At around this time, a bystander ob-

served Clement frustrated and talking to himself in an

argumentative tone. He eventually passed out at the wheel.

Officers Jesus Arceo and Timothy Leimbach, responding

to a dispatch shortly after 10 AM indicating that there

was an intoxicated man in a car, were the first police

officers at the scene. They initially observed Clement

slouched over and tried to wake him by shaking him

and asking if everything was all right. When they asked

him to get out of the car, he spoke in an angry tone and

did not comply. Officer Leimbach observed Clement’s

eyes roll back into his head as he remained unresponsive.

Officer Arceo recalled that Clement was unkempt, his

eyes were bloodshot, and his car smelled like stale beer.

Officer Leimbach also smelled alcohol in the car. But

neither observed any open alcohol in the car. Officer

Nathaniel London, a canine handler, arrived at the scene

at some point after Officers Arceo and Leimbach, also

in response to a dispatch for an intoxicated person.

Clement eventually woke up and, upon seeing Officer

Arceo, swung his arm in Officer Arceo’s direction but

made no contact. He did not cooperate with the officers’

repeated requests to step out his car. So Officer

Leimbach, leaning into the car from the front passenger

side, unbuckled Clement and the officers tried to physi-

4 No. 10-3395

cally remove him from the car. Record evidence in-

dicates that Clement was dead weight. When the officers

pulled him out of the car, he fell to the ground, his legs

partially under the car, and did not comply with the

officers’ demands to move away from the car. The

officers then physically moved Clement out from under

the car.

Next, while lying on his stomach, he ignored their

commands to put his hands behind his back and

physically resisted their attempts to handcuff him. A

bystander observed Clement’s eyes roll back in his head

and that he was foaming at the mouth. Clement con-

tinued to kick, flail his arms, and move his head up and

down, which caused him to hit his face against the pave-

ment, resulting in scratches and some bleeding. An ob-

server did not think Clement knew what was going on

or was consciously fighting the officers, but rather that

he was flailing around “like he was having . . . a seizure

of some sort maybe.” A police dog was released from

the police car at some point, but it is unclear whether

an officer ordered the dog to bite Clement; regardless,

the dog did not attack Clement in any way.

The officers managed to cuff one of Clement’s hands,

but he did not obey commands to put his other arm

behind his back. An officer then struck Clement’s free

arm with a baton while trying to place it in handcuffs.

For what appears to be a fairly short period of time, one

officer had his knee on Clement’s head while the other

officers held him in the prone position: Officer Arceo

held the top of Clement’s body, Officer Leimbach kept

No. 10-3395 5

Clement’s shoulders down, and Officer London held

his torso. The officers eventually secured the second

handcuff, all the while struggling to keep Clement down

as he tried to stand up. During the struggle, Officer

Leimbach struck Clement’s leg with a baton three

times because he was kicking Officer Leimbach and

screaming. An observer described the baton strikes to

Clement’s arm and leg as “stern,” but not “severe.” Officer

Leimbach eventually pinned Clement’s leg against his

buttocks. Officer Arceo, who did not smell alcohol on

Clement’s breath when near Clement’s head, called for

an ambulance at some point during the struggle when

he saw blood on Clement’s face.

The officers sprayed mace into Clement’s face at least

once and possibly twice in the process of moving him

from his car to the ground and into handcuffs; the

record is inconclusive. There is record evidence that

someone maced Clement while he was still in the car, and

also that Officer Leimbach maced him after he was re-

moved from the car because he was resisting and

swinging his arms close to Officer Leimbach, who

testified that he believed Clement was trying to hit him.

Officer Leimbach stopped macing Clement because it

was having no effect; he continued resisting with his

eyes closed.

At some point, Officer Harretos arrived and took over

for Officer London, who returned the dog to the car.

While helping to hold Clement down as he continued

screaming and attempting to stand up, Officer Harretos

sprayed mace in Clement’s face—which was either the

6 No. 10-3395

second or third time Clement was maced—but stopped

when the two officers told him that their previous

attempts to mace Clement had no effect. He testified

that he had not seen the other officers mace Clement,

and that he did not smell alcohol on Clement.

Clement’s face was bleeding from hitting his head

against the pavement and began turning blue while the

officers held him down. Fortunately, paramedic Frank

Torres was called to the scene by a dispatcher who indi-

cated that Clement was possibly intoxicated. Torres

arrived at about 10:22 AM, roughly twenty minutes after

the officers were dispatched to the scene, and observed

Clement in a semi-prone position, laying on his right

shoulder, and “thrashing about.” Torres took Clement’s

vitals, checked his blood sugar, which was low, and then

administrated a Dextrose injection at 10:27 AM and a

second a minute later, after which Clement stopped

breathing. Torres instructed the officers to remove the

handcuffs so Clement could be placed in the ambulance.

He regained a strong pulse on his way to the hospital.

Torres did not smell alcohol on Clement’s breath at any

point.

At the hospital, Officer Leimbach received Clement’s

wallet, which had been in one of his pant pockets during

the relevant events and contained a diabetic card. The

emergency room doctor intubated Clement and later

diagnosed him with acute cardiac and respiratory

failure, severe hypoglycemia, and severe metabolic and

respiratory acidosis. At the hospital, testing revealed

that Clement had marijuana and a low presence of

alcohol in his system.

No. 10-3395 7

When Clement’s grandmother, Phyllis Jordon, retrieved

Clement’s vehicle, which had been towed from the

scene, she found Frusion bottles on the front passenger

seat and his diabetic kit pushed into the passenger seat

but still visible. The record indicates that Clement was

not wearing a diabetic necklace or bracelet during

the relevant events. Clement died of natural causes on

September 8, 2006, roughly two weeks after the relevant

events.

His estate filed suit against the defendants in Indiana

state court, and the defendants removed to federal court.

Counts I and II assert state law causes of action for wrong-

ful death, negligence, and intentional conduct, and for

negligent training, hiring, and supervision, respectively.

Count III is a § 1983 claim contending that the Officers

used excessive force and wrongfully arrested Clement,

in violation of the United States Constitution, in addition

to an analogous state law claim. Counts IV and V, also

claims under both state law and § 1983, allege that the

City, the Police Department, and Chief Machuca failed

to train and supervise the Officers, and that they con-

doned and ratified excessive force. The district court

granted the defendants’ motion for summary judgment

on Padula’s federal claims and remanded his state

law claims to state court.

II. Discussion

Padula appeals the district court’s decision to grant the

defendants’ motion for summary judgment. Summary

judgment shall be granted “if the movant shows that there

8 No. 10-3395

is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” F ED .

R. C IV. P. 56. We review de novo the district court’s deci-

sion to grant summary judgment and construe all facts

and inferences in the light most favorable to Padula,

the nonmoving party. Thomas v. H&R Block E. Enters., Inc.,

630 F.3d 659, 663 (7th Cir. 2011). After briefly discussing

§ 1983, we explain our decision to affirm the district

court’s decision to grant summary judgment to the de-

fendants on Padula’s federal claims. Notably, the

district court found no Fourth Amendment violation, so

it declined to decide whether qualified immunity ap-

plied. That issue is not raised on appeal.

“Title 42 U.S.C. § 1983 creates a federal cause of action

for ‘the deprivation, under color of [state] law, of a

citizen’s rights, privileges, or immunities secured by

the Constitution and laws of the United States.’ ” Ledford

v. Sullivan, 105 F.3d 354, 356 (7th Cir. 1997) (quoting

Livadas v. Bradshaw, 512 U.S. 107, 132 (1994)). It does

not create substantive rights; rather, “it is a means for

vindicating federal rights conferred elsewhere.” Id. “A

cause of action under § 1983 requires a showing that

the plaintiff was deprived of a right secured by the Con-

stitution or federal law, by a person acting under color

of law.” Thurman v. Vill. of Homewood, 446 F.3d 682, 687

(7th Cir. 2006). In § 1983 cases, “the plaintiff bears the

burden of proof on the constitutional deprivation that

underlies the claim, and thus must come forth with

sufficient evidence to create genuine issues of material

fact to avoid summary judgment.” McAllister v. Price,

615 F.3d 877, 881 (7th Cir. 2010); see also Celotex Corp. v.

No. 10-3395 9

Catrett, 477 U.S. 317, 322 (1986) (“[Federal Rule of Civil

Procedure 56] mandates the entry of summary

judgment . . . against a party who fails to make a

showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party

will bear the burden of proof at trial.”); Keri v. Bd. of Trs.

of Purdue Univ., 458 F.3d 620, 627-28 (7th Cir. 2006).

A. Wrongful Arrest

Padula appeals the district court’s decision to grant the

defendants’ motion for summary judgment on his claim

against the Officers for wrongful arrest. He contends

that the district court erred when it found they had proba-

ble cause. We disagree.

Probable cause is an absolute defense to a wrongful

arrest claim asserted under § 1983 against police officers.

Chelios v. Heavener, 520 F.3d 678, 685 (7th Cir. 2008).

A police officer has probable cause to arrest if, at the

time of the arrest, the facts and circumstances within

the officer’s knowledge . . . are sufficient to warrant a

prudent person, or one of reasonable caution, in

believing, in the circumstances shown, that the

suspect has committed, is committing, or is about to

commit an offense. In determining whether an officer

had probable cause, the court steps into the shoes of

a reasonable person in the position of the officer.

The probable cause determination must be made by

a jury if there is room for a difference of opinion

concerning the facts or the reasonable inferences to

be drawn from them.

10 No. 10-3395

Id. at 686 (internal quotation marks and citations omit-

ted); see also Marshall ex rel. Gossens v. Teske, 284 F.3d 765,

770 (7th Cir. 2002); Sheik-Abdi v. McClellan, 37 F.3d 1240,

1246 (7th Cir. 1994). “Critically, the probable cause

analysis is an ex ante test: ‘the fact that the officer later

discovers additional evidence unknown to her at the

time of the arrest is irrelevant as to whether probable

cause existed at the crucial time.’ ” Smith v. Ball State

Univ., 295 F.3d 763, 769-70 (7th Cir. 2002) (quoting Qian

v. Kautz, 168 F.3d 949, 953-54 (7th Cir. 1999)).

The district court correctly concluded that the Officers

had probable cause to arrest Clement. Specifically,

when the arrest occurred, which was when the officers

removed Clement from his car and began attempting to

handcuff him, see Smith, 295 F.3d at 769-70, the Officers

had probable cause to believe that Clement had driven

while intoxicated, a crime in Indiana. IND. C ODE § 9-30-5-2

(2011).

Ample record evidence supports our conclusion. For

example, the dispatcher who called the Officers to the

scene indicated that the driver, who had driven off the

road, was intoxicated; the Officers observed that Clement

did, in fact, appear to have driven off the road;

Officers Arceo and Leimbach smelled alcohol in

Clement’s car; Clement was slouched over in his car,

appeared unkempt, and had bloodshot eyes when

Officers Arceo and Leimbach arrived; and Clement did

not comply with their requests to step out of his vehicle.

Padula does not contend that these characteristics

are inconsistent with how an intoxicated individual

No. 10-3395 11

would act. In addition, Clement was not wearing a

diabetic necklace or bracelet that would have alerted

the Officers to his medical condition, nor is there any

indication that his wallet—containing his diabetic

card—was accessible to the Officers during the struggle.

Padula failed to produce sufficient evidence to create

a genuine issue of material fact. Clement’s grand-

mother testified that after Clement’s car was towed

from the scene, she found his diabetic kit pushed down

in the front passenger seat but still visible. And there

is record evidence that Officer Leimbach was in or near

that seat when he unbuckled Clement. But there are

critical gaps in the record: There is no evidence that any

of the Officers saw or should have seen the kit, and

there is also no indication of the kit’s labeling at the time

of arrest. Thus, even inferring that the kit was visible

on Clement’s front seat, Padula failed to present any

evidence that the Officers could have identified it as

a diabetic kit in the heat of the moment. Further, Padula

does not reference any evidence that the Officers saw

or should have seen Clement foaming at the mouth

while he was on the ground, which could have alerted

them to Clement’s medical condition.

Next, Padula points to one observer’s vague testimony

that, while on the ground, Clement was flailing his arms

and legs “like he was having—I don’t know, like a

seizure of some sort maybe.” Without more clear record

evidence, however, we have no basis to find that a jury

could infer that the Officers unreasonably believed

that Clement was intoxicated.

12 No. 10-3395

Finally, Padula contends that the fact that Officer Arceo

called for an ambulance evidences that he suspected a

medical issue. Officer Arceo testified, however, that he

called the ambulance when he saw blood on Clement’s

face; he made no mention of a potential medical condi-

tion as a reason for calling the ambulance. Officer

Leimbach also testified that the ambulance was called

because Clement had blood on his face.

Because Padula failed to meet his burden at summary

judgment, the district court correctly granted summary

judgment for the defendants on Padula’s wrongful

arrest claim.

B. Excessive Force

Padula also appeals the decision to dismiss his exces-

sive force claim against the Officers. Again, we affirm.

We evaluate Padula’s excessive force claim under the

Fourth Amendment’s reasonableness standard. See

McAllister, 615 F.3d at 881. “The dispositive question is

whether, in light of the facts and circumstances that

confronted the officer (and not 20/20 hindsight), the

officer behaved in an objectively reasonable manner.” Id.;

Graham v. Connor, 490 U.S. 386, 396-97 (1989). In

answering that question, a number of factors are relevant:

[W]e consider factors such as “the severity of the crime

at issue, whether the suspect poses an immediate

threat to the safety of the officers or others, and

whether he is actively resisting arrest or attempting

to evade arrest by flight.” We also consider whether

No. 10-3395 13

the citizen was under arrest or suspected of com-

mitting a crime, was armed, or was interfering or

attempting to interfere with the officer’s execution

of his or her duties. In the end, the excessive force

inquiry looks to whether the force used to seize

the suspect was excessive in relation to the danger

he posed—to the community or to the arresting

officers— if left unattended.

Jacobs v. City of Chi., 215 F.3d 758, 773 (7th Cir. 2000)

(quoting Graham, 490 U.S. at 396; other internal quotation

marks and citations omitted); see also Chelios, 520 F.3d at

689. “Not every push or shove, even if it may later

seem unnecessary in the peace of a judge’s chambers[,]

violates the Fourth Amendment. The calculus of reason-

ableness must embody allowance for the fact that

police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain,

and rapidly evolving—about the amount of force that is

necessary in a particular situation.” Graham, 490 U.S.

at 396-97 (internal quotation marks and citations omitted).

The district court correctly concluded that the Offi-

cers’ use of force was not excessive. In light of the circum-

stances and their reasonable belief that Clement

was intoxicated, Officers Leimbach and Arceo were

entitled to forcibly remove him from his car when he

did not comply with their command to get out on his

own. See Smith, 295 F.3d at 769 (“Smith posed a threat to

himself, the officers and the general public, even after

Officer Foster turned off Smith’s vehicle and attempted

unsuccessfully to communicate with him. Indeed, . . .

14 No. 10-3395

his unresponsiveness did not neutralize the safety

threat, but rather exacerbated it by adding an element

of unpredictability. We thus find that the decision to

remove Smith from his vehicle was a constitutionally

permissible action pursuant to a legitimate investigatory

stop under Terry.”); id. at 770. Further, we find no evi-

dence that the Officers removed Clement from his car

by throwing him to the ground, as in McAllister, to

which Padula directs our attention, but rather that he

fell to the ground as dead weight as they pulled him

out. See McAllister, 615 F.3d at 884 (“Viewed in the

light most favorable to McAllister, the evidence shows

that Price ignored obvious signs of McAllister’s medical

condition, pulled him out of the car, and took him to

the ground with such force that McAllister’s hip was

broken and his lung bruised from the force of Price’s

knee in his back, not because such force was necessary

but because Price was ‘angry’ with McAllister. Even if

Price was justified in using some force to remove

McAllister from the vehicle, using the force involved

here against a non-resisting suspect could have been

unreasonable given the circumstances.”). It was also

reasonable to use mace to attempt to control Clement

under the circumstances, which involved a physical

struggle both before and after placing him in handcuffs.

See Brooks v. City of Aurora, Ill., No. 10-3265, slip op. at 16,

2011 WL 2623507, at *6 (7th Cir. July 6, 2011) (“Courts

often have held that it is reasonable to use pepper spray

against a suspect who is physically resisting arrest . . . .”);

Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir. 2002)

(“Courts have consistently concluded that using pepper

No. 10-3395 15

spray is reasonable . . . where the plaintiff was either

resisting arrest or refusing police requests, such as

requests to enter a patrol car or go to the hospital. Further-

more, as a means of imposing force, pepper spray is

generally of limited intrusiveness, and it is designed to

disable a suspect without causing permanent physical

injury. Indeed, pepper spray is a very reasonable alter-

native to escalating a physical struggle with an arrestee. ”

(internal quotation marks and citations omitted)). The

Officers’ use of batons was also reasonable. Record evi-

dence indicates that Officer Leimbach’s baton strikes

were “stern,” but not “severe,” which was appropriate

in response to Clement kicking and flailing his arms.

Further, Officer Leimbach struck Clement’s leg a third

time only because his first two strikes did not allow him

to pin Clement’s leg to his buttocks and prevent him

from kicking; there is no indication that Officer Leimbach

used his baton gratuitously. And while Padula points

to Clement’s death, presumably as evidence of the Offi-

cers’ force, see McAllister, 615 F.3d at 881 (“[A] jury

may look to the type of injury suffered by a plaintiff to

determine whether or not the amount of force used by

law enforcement was reasonable.”), the Coroner’s

Verdict states that Clement died of natural causes, not

because of any force used two weeks before his death,

and we find no other indication in the record that Clem-

ent’s death was related to the Officers’ force, see id. at 882

(“If McAllister had no evidence that his injuries were

caused by Price, they would be irrelevant . . . .”). Finally,

holding Clement in the prone position for a fairly short

period of time while trying to prevent him from injuring

16 No. 10-3395

himself or an officer was not unreasonable. See Estate

of Phillips v. City of Milwaukee, 123 F.3d 586, 593 (7th Cir.

1997) (finding force not excessive where the plaintiff

“was placed in a prone position with his hands and

legs restrained because of the need to incapacitate him

and to protect the safety of the officers and other wit-

nesses from the dangers posed by his violent behavior,”

and explaining that “[r]estraining a person in a prone

position is not, in and of itself, excessive force when

the person restrained is resisting arrest”); Cf. Smith,

295 F.3d at 771 (finding no excessive force where the

police kept the plaintiff in handcuffs several minutes

after learning that he was diabetic because “the use of

force was measured, brief and appropriate to ac-

complish the purposes of the investigatory stop—securing

Smith and his vehicle, dispelling any notion that Smith

was engaged in criminal activity and preserving the

officers’, public’s and even Smith’s safety”). The Officers

faced a fluid situation; as the struggle with Clement

escalated, the Officers appropriately increased their

force in order to keep the situation under control. See

Smith, 295 F.3d at 770 (“When police officers face what is

essentially a fluid situation, they are entitled to

graduate their response to meet the demands of the

circumstances confronting them.”); Estate of Phillips, 123

F.3d at 593.

Padula nonetheless argues that the Officers used unrea-

sonable force. He points to the fact that an officer had his

knee on Clement’s head at some point during the scuf-

fle. But that was a reasonable way to prevent

Clement from continuing to hit his head against the

No. 10-3395 17

pavement, and there is no indication that the officer

applied excessive pressure with his knee or that his

knee injured Clement in any way. He also notes that a

bystander observed Clement foaming at the mouth while

on the ground, which could have suggested a medical

condition. But, as explained above, Padula does not

reference anything in the record indicating that the

Officers saw or should have seen this.

Padula further contends that McAllister v. Price, 615

F.3d 877 (7th Cir. 1997), and Cyrus v. Town of Mukwonago,

624 F.3d 856 (7th Cir. 2010), in which we concluded

that defendant-officers were not entitled to summary

judgment, warrant reversing. The facts of those cases,

however, distinguish them from Padula’s. In McAllister,

for example, the plaintiff, who crashed his car during a

hypoglycemic episode, was unable to respond to the

officer’s questioning. 615 F.3d at 879. In response to “a non-

resisting suspect,” the officer “ ‘threw’ McAllister to

the ground by applying his knee to McAllister’s lower

back, with his full body weight behind it.” Id. at 879,

885. We concluded that McAllister had introduced suffi-

cient evidence for a jury to infer that the officer’s force

caused Price’s injuries, which included a broken hip,

bruised lung, and other bruises, scrapes, and cuts that

left him in the hospital for three weeks and required

several weeks of rehabilitation. Id. at 884; see also Cyrus,

624 F.3d at 858, 862 (plaintiff was tasered between six

and twelve times and was pronounced dead upon arrival

at the hospital later that day). Excessive force claims

require a fact-based, case-by-case inquiry, and, as ex-

plained above, in this case, unlike McAllister and Cyrus,

18 No. 10-3395

there is no genuine issue as to any material fact. See

Estate of Phillips, 123 F.3d at 592.

In light of our hesitation “to second-guess the snap

judgments made by law enforcement personnel,”

McAllister, 615 F.3d at 883, and because the record

does not present any genuine issue of material fact in-

dicating that the Officers used excessive force, we

affirm the district court’s decision to grant summary

judgment to the defendants on Padula’s excessive

force claim.

C. Padula’s Remaining Claims

Padula also filed claims against the City, the Police

Department, and Chief Machuca for failing to adequately

train and supervise the Officers, and for condoning and

ratifying excessive force, both of which, he contends,

resulted in the constitutional violations he alleges oc-

curred. That Clement makes no legal arguments

regarding either claim until his reply brief permits us to

find the issues waived. See United States v. Diaz, 533

F.3d 574, 577 (7th Cir. 2008) (arguments raised for the

first time in a reply brief are waived).

Even if not waived, however, the arguments cannot

succeed. Since Padula’s underlying claims for wrongful

arrest and excessive force failed, his claims for failure to

train and for condoning and ratifying excessive force

must also fail. See Carlson v. Bukovic, 621 F.3d 610, 623 (7th

Cir. 2010); Estate of Phillips, 123 F.3d at 596-97. We thus

affirm the district court’s decision to grant summary

No. 10-3395 19

judgment for the defendants on Padula’s remaining

federal claims.

III. Conclusion

While respectfully recognizing the tragic circum-

stances surrounding Jerome Clement’s death, we are

compelled to A FFIRM the judgment of the district court

granting summary judgment to the defendants on

Padula’s federal claims. Accordingly, we also A FFIRM

its decision to remand Padula’s remaining state law

claims to state court.

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