turned on his siren, at which point the vehicle pulled over and came to a stop. Based upon these undisputed facts, there was ample probable cause for the stop of plaintiff's vehicle.
Probable cause also existed for the arrest. As the officer approached the driver of the vehicle, and throughout the discourse that followed, he noticed slurred speech, glassy/bloodshot eyes, and a distinct odor of alcohol emanating from the car. In response to questioning, plaintiff admitted that he was coming from a local bar and was on his way to another bar/restaurant. He also admitted to having consumed a few drinks during the course of the evening. Based upon plaintiff's driving, his apparent condition, and the answers to his inquiries, Colburn was more than justified in going forward with the standard tests for intoxication.
Colburn proceeded to administer standard field sobriety tests. Plaintiff claims that his performance on the field tests were "satisfactory." It is undisputed, however, that the officer believed that there was enough evidence of intoxication to proceed with an arrest. His determination was supported by an alco-sensor test which indicated a blood alcohol content of .15. Although plaintiff complains that this alco-sensor test was administered prematurely, whether the test was, in fact, premature is of little significance in the context of the surrounding circumstances. The .15 reading coupled with the erratic driving, the performance on the field tests, the slurred speech, and the admissions from plaintiff himself that he consumed alcohol over the course of the evening, amounted to enough "reasonable and trustworthy information" for bringing plaintiff into the station and removing him from the road.
Even when viewing the evidence in the light most favorable to the plaintiff, probable cause is established. Plaintiff's own deposition testimony supports a finding that probable cause existed for his DWI arrest. Plaintiff has presented no evidence from which a reasonable juror could find that the Colburn lacked probable cause. Based on the undisputed facts, the court concludes that there was ample probable cause for the stop and arrest, and that it was objectively reasonable, as a matter of law, for the officer to believe that plaintiff was driving under the influence of alcohol.
The court holds that defendants have met their burden of establishing the lack of a genuine issue of material fact and summary judgement is granted on this count. The court's decision on the merits of the probable cause claim renders moot the issue of qualified immunity.
B. Excessive Force
Plaintiff alleges that, without just cause or reason, Colburn used excessive force during and following the arrest. Plaintiff argues that handcuffing and having his arms "jerked" behind him amounts to a Fourth Amendment Constitutional claim of excessive force. He also brings an excessive force claim for Colburn's failure to engage the seat belt in the back of the squad car. Defendants contend that, even if the court were to accept plaintiff's version of the facts as true, there would be no constitutional issue. They also argue that Colburn is again entitled to qualified immunity protection as a matter of law.
The court will not entertain the qualified immunity defense in the context of an excessive force claim.
However, the reasonableness of Colburn's actions must still be reviewed in analyzing the substantive questions of the excessive force claim. The court bases its decision solely on the merits of the excessive force claim and finds that a reasonable police officer would have understood the actions of Colburn to be lawful, especially given the fact that he had no notice of plaintiff's pre-existing injury.
A claim of excessive force invokes the protections of the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). The issue, again, is whether the officer's actions are objectively reasonable in light of the facts and circumstances confronting him. Id. at 397. The test of "reasonableness" is not capable of precise definition or mechanical application; therefore, careful attention must be paid to the facts and circumstances of the case. Id. at 396. The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene. Id. "'Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers,' . . . violates the Fourth Amendment." Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (1973), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 324 (1973)).
In this case, the facts are undisputed as to Colburn's lack of knowledge of plaintiff's preexisting back injury. According to plaintiff's own deposition, he never informed the officer of his condition, he never complained of the fact that the handcuffs were hurting him, he never exhibited any sign of trauma during the cuffing or the brief incarceration, and he never gave any indication whatsoever that he was in pain or uncomfortable. Although plaintiff's counsel submits that it would have been "gentlemanly" of Colburn to have asked the plaintiff if his physical condition allowed for handcuffing, such a solicitation has never been required of law enforcement personnel. The officer's application of handcuffs and the allegations of pain that resulted do not rise to the level of a constitutional violation, especially given the absence of visible injuries, complaints, or requests for medical treatment. "Neither the Supreme Court nor the Second Circuit has established that a person has the right not to be handcuffed in the course of a particular arrest, even if he does not resist or attempt to flee." Soares v. Connecticut, 8 F.3d 917, 922 (2d Cir. 1993).
The court notes that the Sixth Circuit has denied summary judgment on a handcuffing claim when facts were disputed as to whether a police officer had actual knowledge of a plaintiff's shoulder injury before handcuffing. Walton v. Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993). In the instant case, however, it is undisputed that Colburn had no knowledge of plaintiff's preexisting condition. Aside from Walton, this court finds no case law in any circuit that alludes to the unconstitutionality of the conduct complained of, let alone authority that would raise a doubt in the mind of a reasonable officer in Colburn's position. Colburn's application of handcuffs and the pain that allegedly resulted do not rise to the level of a constitutional violation in the absence of visible injuries, complaints, or requests for medical treatment. See Foster v. Metropolitan Airports Com, 914 F.2d 1076 (8th Cir. 1990) (complaints that handcuffs were unnecessary and applied too tightly did not raise a Fourth Amendment issue); Van Houten v. Baughman, 663 F. Supp. 887, 891 (C.D. Ill. 1987) (numbness in wrists arising from handcuffing did not arise to the level of severity as to shock the conscience of the court); Hannula v. Lakewood, 907 F.2d 129, 132 (10th Cir. 1990) (summary judgment granted where there was no visible evidence of contusions, lacerations or damage).
In conclusion, the court finds that plaintiff has not raised an excessive force claim. Given the absence of a clearly established constitutional or statutory right, given the undisputed fact that the officer was not on notice of plaintiff's condition, and given the undisputed fact that no reasonable officer in the Colburn's position could have known that plaintiff suffered from a condition which precluded handcuffing, Colburn acted reasonably in withholding from plaintiff a privilege which would not have been extended to other suspected intoxicated drivers. Plaintiff asks this court to "transform the constitutional wrong of excessive force in arrest into the common law tort of battery; [which] would reduce the holding in Graham into an empty proposition against which no use of force is reasonable as a matter of law." Roundtree v. New York, 778 F. Supp. 614, 622 (E.D.N.Y. 1991).
The court will also address plaintiff's allegation that he sustained further injury as the result of Colburn's driving, the fact that Colburn did not place him in a seat belt, and the cumulative effect of being "rocked back and forth" in the rear seat of the patrol car.
Plaintiff has cited no law supporting his claim that the constitution or any statute entitles him to the use of a seat belt or to be free from the movement that he describes. Plaintiff also concedes the officer's lack of notice regarding his condition. In the absence of case law suggesting a claim, and in light of the fact that a reasonable officer could not have knowledge of plaintiff's condition, summary judgment must lie on these grounds as well.
C. Deliberate Indifference to Plaintiff's Medical Condition
Plaintiff also alleges that while he was in the care and custody of the police, the defendants failed to provide medical attention and failed to obtain a medical evaluation. Specifically, he argues that Colburn was obligated to take a medical history of the plaintiff before applying handcuffs.
To find an Eighth Amendment violation, two requirements must be met. First, the alleged deprivation must be, objectively, "sufficiently serious." Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). The second requirement is that there be an "unnecessary and wanton infliction of pain." Id. at 297. In a prison context, that state of mind is one of "deliberate indifference" to an inmate's health or safety. Id. at 302-03. Deliberate indifference to a medical need could involve a denial or delay of inmates' access to medical care, interference with prescribed treatment, or the failure to respond to inmates' medical needs. Haitian Ctrs. Council Inc. v. Sale, 823 F. Supp. 1028, 1044 (E.D.N.Y. 1993) (citing Estelle v. Gamble, 429 U.S. 97, 104-05, 50 L. Ed. 2d 251, 97 S. Ct. 285; Rogers v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986); Todaro v. Ward, 565 F.2d 48, 52-8 (2d Cir. 1977)). The Supreme Court has solidified the deliberate indifference standard in its recent opinion in Farmer v. Brennan, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (U.S. 1994). Deliberate indifference now requires a showing that an official was "subjectively" aware of a substantial risk. Justice Souter, speaking for the majority, stated:
We reject [the] invitation to adopt an objective test for deliberate indifference. We hold . . . that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.
Id. [Slip Op.]at 10-11.
Thus, for plaintiff to bring forward an Eighth Amendment violation, he must show that there was a failure to prevent serious harm; namely the aggravation of his pre-existing spinal condition. Assuming, without deciding, that the harm to plaintiff's condition was serious, and that the failure to treat or examine his person represented a "serious deprivation," plaintiff still has the heavy burden of showing that the police officials involved had a "sufficiently culpable state of mind" when they withheld this necessary treatment. See Wilson, 501 U.S. at 302-03. Under Farmer, plaintiff must show that Colburn or his colleagues either knew of the harm or knew of the substantial risk of the harm to his condition, yet proceeded to deny him treatment or an evaluation in spite of this knowledge. Under the facts as he presents them, plaintiff can do neither.
It is undisputed that defendants were never aware of any harm to the plaintiff and were never aware of his pre-existing condition. It is also undisputed that they were never put on notice that plaintiff suffered from a condition that could potentially be aggravated by handcuffing or the other treatment that he was subjected to. Given their lack of awareness, it was impossible for Colburn or his colleagues to possess knowledge of a substantial risk to the plaintiff. Given their knowledge, it was reasonable for them to refrain from providing the medical treatment that plaintiff argues he was entitled to. "Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishment Clause." Farmer, No. 92-7247 at 18.
As a pre-trial detainee, plaintiff's claim is not entirely analogous to the prison context. The due process clause requires officials to provide medical care to detainees who have been injured during the course of an arrest. Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 77 L. Ed. 2d 605, 103 S. Ct. 2979 (1983). The due process rights of persons in nonpunitive detention, such as pretrial detention, are greater than the Eighth Amendment protections afforded to convicted prisoners. Bell v. Wolfish, 441 U.S. 520, 535 n.16, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979) (pretrial detention); Youngberg v. Romeo, 457 U.S. 307, 321-22, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982) (involuntary commitment); Rhyne v. Henderson County, 973 F.2d 386, 391 (5th Cir. 1992) (pretrial detainee); Martin v. Gentile, 849 F.2d 863, 870 (4th Cir. 1988) (pretrial detainee); Haitian Ctrs., 823 F. Supp. at 1043 (nonpunitive detention). "Persons in nonpunitive detention have a right to 'reasonable medical care,' a standard demonstrably higher than the Eighth Amendment standard that protects prisoners: 'deliberate indifference to serious medical needs.'" Haitian Ctrs. 823 F. Supp. at 1043-44 (comparing Estelle, 420 U.S. 97 with Rhyne, 973 F.2d at 391).
Even under a "reasonable medical care" standard, the court finds that plaintiff has also failed to state a constitutional claim under Fourteenth Amendment standards for pre-trial detainees. There was no unreasonable or deliberately indifferent "denial" or "delay" in treatment. Plaintiff himself admits that he made no complaints about his medical condition before, during, or after his very brief detention. None of the defendants unreasonably, or with deliberate indifference, "interfered" with the process of treating plaintiff. Treatment was never prescribed by anyone, including plaintiff, at any time. As for possible allegations of a "failure to respond" to plaintiff's condition, the court notes that it is impossible to respond to an invisible injury without notice.
Under an objective reasonableness standard, plaintiff is still required to show that a reasonable officer in the position of Colburn or his colleagues would have recognized and accommodated plaintiff's need for treatment or evaluation. Plaintiff has simply failed to raise any issue whatsoever as to how Colburn or any reasonable officer or person in his position could possibly have been aware of the his condition or the risks that he faced.
Though plaintiff says that defendants did not specifically ask if he had complaints relating to his transportation to the station, he does not deny that he was asked whether anything was wrong with him, and he does not deny his negative response to these questions. There was no physical evidence of pain or injury from which the officer, his colleagues, or any reasonable person could have detected plaintiffs' alleged injury.
Additionally, even when the incident was coming to a close, the officers were not placed on notice of plaintiff's injury. Plaintiff was released within one hour of his initial arrest and was escorted from the police station by a friend. He did not seek immediate medical attention after his release and he never conferred with a physician until his regularly scheduled appointment three weeks after the incident.
Plaintiff claims that Colburn was required to bring plaintiff to a hospital for a medical evaluation prior to handcuffing him and transporting him to the police department. To suggest that Colburn was constitutionally required to provide such an evaluation is simply unfounded.
Plaintiff offers no additional facts about any of these issues from which a reasonable juror could conclude that Colburn, the New Hartford police, or a reasonable person would be on notice as to any medical condition on the part of plaintiff. He offers no evidence to suggest that any of the defendants were deliberately indifferent to his condition. He offers no evidence to suggest that any of the defendants denied or delayed his access to medical care, interfered with any treatment, or failed to respond to a serious medical need. As such, the court grants summary judgment on this issue.
D. Unconstitutional Policy or Practice of the Police Department
Plaintiff alleges that Colburn's actions were taken pursuant to the following unconstitutional policies of the New Hartford police: denial of necessary medical attention to pretrial detainees; improper supervision of pre-trial detainees; and disregard for the proper training, supervision, and discipline of individual law enforcement officers.
A municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Monell v. Department of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Respondeat superior or vicarious liability will not attach under § 1983. Id. at 694-95. "It is only when the 'execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." Canton v. Harris, 489 U.S. 378, 385, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989) (quoting Springfield v. Kibbe, 480 U.S. 257, 267, 94 L. Ed. 2d 293, 107 S. Ct. 1114 (1987) (O'Connor, J., dissenting)). Thus, the liability of the town and its police department is predicated on a causal link between the identified deficiency in the policy or practice and a constitutional violation.
Plaintiff's conclusory allegations of unconstitutional official policies or customs are insufficient. Plaintiff fails to link Colburn's actions to any constitutional violation. He also fails to link a police department policy or custom to any constitutional violation. There is no independent liability of the Town of New Hartford or its police department. The claim is without merit and is dismissed.
E. Fifth Amendment Violations
Plaintiff alleges violations of the Fifth Amendment through the failure to give Miranda warnings and the failure to alert him of his right to refuse breath testing. Plaintiff does, however, admit that he consulted with an attorney, and that he consented to the breathalyzer test.
When police request a DWI suspect to submit to a blood alcohol test, such a request does not constitute custodial interrogation for purposes of the Fifth Amendment privilege against self-incrimination and Miranda. South Dakota v. Neville, 459 U.S. 553, 564 n. 15, 74 L. Ed. 2d 748, 103 S. Ct. 916 (1983). Nor is the request to perform a field sobriety test the functional equivalent of a formal arrest. See Berkemer v. McCarty, 468 U.S. 420, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). Furthermore, there is no constitutional right to confer with counsel before taking a breath test. Moos v. Norton, 789 F. Supp. 352 (D.Kan. 1992); see also Neville, 459 U.S. at 559 n.8. Admissions obtained prior to an arrest from a suspect who is stopped for speeding and intoxication will not be suppressed for claimed Miranda violations. See e.g. Berkemer, 468 U.S. at 420 (1984).
The incident in question involves a breathalyzer test. There was no custodial interrogation before or after the formal arrest. Plaintiff's Fifth Amendment claims are meritless and are dismissed.
F. First Amendment Claims
The First Amendment is not implicated in any of plaintiffs claims and this contention is dismissed as frivolous.
G. Pendent State Law Claims.
Plaintiff also seeks compensatory and punitive damages based on state law claims of assault, battery, emotional distress, false arrest and detention, and malicious prosecution.
"It is well settled that 'if the federal claims are dismissed before trial . . . the state claims should be dismissed as well.'" West Hartford v. Operation Rescue, 915 F.2d 92, 104 (2d Cir. 1990) (citations omitted) (citing United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966)). This decision is in keeping with the principle that "needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law." Robison v. Via, 821 F.2d 913, 925 (2d Cir. 1987).
Having determined that plaintiff's federal claims must be dismissed, and there being no diversity of citizenship between the parties, the court declines to take jurisdiction of the state law claims.
The mere existence of factual issues, unless they are genuinely disputed and material, will not defeat a motion for summary judgment. Liberty Lobby, Inc., 477 U.S. at 242. In this action, the undisputed facts reveal ample probable cause for both the stop and arrest of plaintiff. Accepting plaintiff's recollection of the events, the handcuffing and placement of plaintiff in the squad car violated no recognized constitutional rights. Furthermore, it is patently reasonable to handcuff an intoxicated arrestee and to place him in the rear seat for transportation to a police station. Therefore, plaintiff fails to raise a valid claim of excessive force.
Finally, there is no constitutional right to medical treatment where there is no visible evidence of injury and there is a complete lack of notice to the defendants that plaintiff suffered any injury whatsoever.
Accordingly, it is
ORDERED, that defendants' motion for summary judgement is granted and the complaint is dismissed.
The clerk is directed to enter judgment accordingly.
IT IS SO ORDERED.
David N. Hurd
United State Magistrate Judge
Dated: July 25, 1994.
Utica, New York.