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January 31, 1991


The opinion of the court was delivered by: Kenneth R. Fisher, United States Magistrate Judge.


In this action pursuant to 42 U.S.C. § 1983, plaintiff claims that defendant William Young, the Chief of Police for the Village of East Rochester, New York, violated his constitutional rights (1) by using excessive force during processing at the stationhouse in connection with an arrest otherwise conceded to be upon probable cause and (2) by denying him requested medical treatment immediately after the excessive force was used. The parties have consented to a trial before me, 28 U.S.C. § 636(c), and the matter came on for a jury trial.

The plaintiff testified that he was arrested by members of the East Rochester Police Department on the evening of July 25, 1987, and was transported to the stationhouse. Plaintiff testified that he threatened to sue members of the East Rochester Police Department for false arrest, at the stationhouse during the pedigree questioning which customarily accompanies arrest processing. This occurred before any formal charge was filed and before plaintiff was taken before a magistrate for arraignment Plaintiff testified that Chief Young immediately entered the area in which plaintiff was being processed, and struck him twice with an open hand with such force as to cause a red mark on the left side of his face. Plaintiff testified further that he "might have" asked to see a nurse while at the stationhouse but he conceded on cross examination that he was "bewildered" and that there was a good chance that he did not ask for treatment at all at the stationhouse. He also conceded that, after he was subsequently taken to the Monroe County Jail, he asked to see a doctor the next morning or as soon as possible and that, indeed, he was examined by a doctor or nurse while at the Monroe County Jail. Plaintiff acknowledged that he did not experience much pain until well after the July 25th incident, when numbness, dizzy spells, and headaches began to occur. Within hours of his initial confinement by the East Rochester Police Force, plaintiff was taken before a Penfield Town Justice for arraignment, and was ordered detained at the Monroe County Jail until January 27th. Although the record was unclear what happened thereafter, plaintiff was ultimately released by Monroe County Jail authorities. He was rearrested in September of 1987 for a robbery which is the cause of plaintiff's current confinement at the Attica Correctional Facility.

At the close of the plaintiff's case, defense counsel moved pursuant to Fed.R.Civ.P. 50(a) for a directed verdict on the ground that plaintiff had not established a prima facie case of (1) a violation of his Fourth Amendment rights to a reasonable seizure and (2) a violation of his right while in police confinement to requested medical treatment. I sent the excessive force claim to the jury, denying defense counsel's motion in part, but granted the motion directing a verdict for the defendant on the denial of medical treatment claim. This memorandum decision explicates the dismissal at the close of plaintiff's case of his medical treatment claim. The excessive force claim was resolved against plaintiff by the jury after less than one half hour of deliberations.

In light of Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the task in a § 1983 case such as this is "to identify the specific constitutional provision under which . . . [plaintiff's] claim arose." Id. 109 S.Ct. at 1865. As aptly summarized,

  After Graham, 109 S.Ct. at 1871 n. 10; Whitley v.
  Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d
  251 (1986); Bell v. Wolfish, 441 U.S. 520, 535-39,
  99 S.Ct. 1861, 1871-74, 60 L.Ed.2d 447 (1979);. . .
  ., three different parts of the Bill of Rights
  apply in sequence during arrest and confinement.

  Force during arrest must be reasonable within the
  meaning of the Fourth Amendment; between arrest
  and conviction the government may not "punish"
  the suspect without due process of law; after
  conviction the government may not inflict cruel
  and unusual punishment.

Titran v. Ackman, 893 F.2d 145, 147 (7th Cir. 1990). Because plaintiff had not been convicted of the charges for which he was arrested on July 25, 1987, see Graham v. Connor, 109 S.Ct. at 1869 n. 6; id. 109 S.Ct. at 1871 n. 10; Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 1872 n. 16, 60 L.Ed.2d 447 (1979), the issue presented by the motion for a directed verdict concerns whether plaintiff's denial of medical treatment claim must be judged by the Fourth Amendment's objective reasonableness standard or by the Fourteenth Amendment's due process standard. The distinction is important because, under the Fourth Amendment standard, the court needs only to decide, upon a view of the evidence most favorable to plaintiff, whether the asserted denial of medical treatment was objectively unreasonable "focusing on the circumstances confronting the police at the time of the arrest without regard to their underlying motives or attitude towards the suspect, . . ." Miller v. Lovett, 879 F.2d 1066, 1070 (2d Cir. 1989); Calamia v. City of New York, 879 F.2d 1025, 1034-35 (2d Cir. 1989). Under the Fourth Amendment, therefore, the denial of medical care to an arrestee is judged as but one component of the objective reasonableness standard for any "seizure" and is evaluated by reference to the totality of circumstances and the reasonable person standard.

Under the due process standard, however, the issue is whether plaintiff was deprived of life or liberty without due process of law. There are "three kinds of § 1983 claims that may be brought against . . . [officials acting under color of state law] under the Due Process Clause of the Fourteenth Amendment." Zinermon v. Burch, ___ U.S. ___, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990):

  First, the Clause incorporates many of the
  specific protections defined in the Bill of
  Rights. A plaintiff may bring suit under § 1983 for
  state officials' violation of his rights to, e.g.,
  freedom of speech or freedom from unreasonable
  searches and seizures. Second, the Due Process
  Clause contains a substantive component that bars
  certain arbitrary, wrongful government actions
  "regardless of the fairness of the procedures used
  to implement them." Daniels v. Williams,
  474 U.S. 327, 331, 106 S.Ct. 662, 664, 88 L.Ed.2d 662
  The Due Process Clause also encompasses a third
  type of protection, a guarantee of fair
  procedure. A § 1983 action may be brought for a
  violation of procedural due process, . . . in
  procedural due process claims, the deprivation by
  state action of a constitutionally protected
  interest in "life, liberty, or property" is not in
  itself unconstitutional; what is unconstitutional
  is the deprivation of such an interest without due
  process of law.

Zinermon v. Burch, 110 S.Ct. at 983. The choice in kind of the pertinent claim is not always an easy task, but for reasons which are discussed in the next paragraph, plaintiff should be considered as having filed a substantive due process claim.

The Supreme Court "has never determined what degree of culpability must be shown before the particular constitutional deprivation asserted in this case — a denial of the due process right to medical care while in detention — is established." City of Canton, Ohio v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 1204 n. 8, 103 L.Ed.2d 412 (1989). Similarly, the Second Circuit has confirmed that the "standard of culpability" required to establish a violation of the due process rights of a pretrial detainee is an open question, except that "negligence alone . . . will not support a claim under the Due Process Clause." Bryant v. Maffucci, 923 F.2d 979, 984 (2d Cir. 1991) (citing Daniels v. Williams, 474 U.S. 327, 333-34, 106 S.Ct. 662, 666-67, 88 L.Ed.2d 662 (1986); Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670-71, 88 L.Ed.2d 677 (1986). The Bryant decision was not available to the court at the time it denied plaintiff's motion for a directed verdict, that motion having been made and decided on January 16, 1991, but it is consistent with the court's view that the Supreme Court has not decided the constitutional standard of liability in substantive due process cases involving medical non-treatment claims since City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983) suggested that a pretrial detainee had a substantive due process right to medical care while in pretrial detention. But cf., id. 463 U.S. at 246, 103 S.Ct. at 2984 (Rehnquist, J., concurring) (declining to reach the due process issue). Graham suggested a retreat from the substantive due process approach, see also, United States v. Bayles, 923 F.2d 70 (7th Cir. 1991) ("Invocations of substantive due process have fared poorly in recent years."); Coniston Corporation v. Village of Hoffman Estates, 844 F.2d 461, 465-66 (7th Cir. 1988), but City of Canton, by its reference to "the particular constitutional deprivation asserted in th[at] case — a denial of the due process right to medical care while in detention," fully presupposes a substantive due process right to needed medical care of a pretrial detainee (109 S.Ct. at 1204 n. 8). Zinermon's reaffirmance of substantive due process principles (110 S.Ct. at 983) may also be seen as qualifying Graham's approach, at least outside of the Fourth Amendment context. See also, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 1005-06, 103 L.Ed.2d 249 (1989). Indeed, Bryant, involved a pretrial detainee who asserted a "substantive due process" claim that an abortion was denied to her (923 F.2d at 988) (Newman, J., dissenting on other grounds). The applicable culpability standard, however, remains an open question between the extremes of negligence, which will not support liability, and deliberate indifference, which is the Eighth Amendment standard pretrial detention plaintiffs are, "at least," entitled to. City of Revere v. Massachusetts General Hospital, 463 U.S. at 244, 103 S.Ct. at 2983 (due process rights of a pretrial detainee "are at least as great as the Eighth Amendment protections available to a convicted prisoner"). See also, Bryant v. Maffucci, 923 F.2d at 983 (same); Gaudreault v. Municipality of Salem, Massachusetts, 923 F.2d 203 (1st Cir. 1990) (same).*fn1

If the culpability standard has not been identified with precision, it is nevertheless clear that a pretrial detainee may not be "punished" without due process of law. As "the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment," Graham v. Connor, 109 S.Ct. at 1871 n. 10, it must also protect a pretrial detainee from deprivation of needed medical treatment that amounts to punishment. Any deprivation of liberty that amounts to punishment without due process violates the Amendment. What "amounts to punishment," however, has not been fully articulated. For asserted deprivations which do not implicate something more than a denial of "liberty," the Supreme Court has held:

  In evaluating the constitutionality of conditions
  or restrictions of pretrial detention that
  implicate only the protection against deprivation
  of liberty without due process of law, we think
  that the proper inquiry is whether those
  conditions amount to punishment of the detainee.
  . . . [f]or under the Due Process Clause, a
  detainee may not ...

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