Mahan v. Plymouth County

• Court: Court of Appeals for the First Circuit
• Decided: September 7, 1995
• Docket: 94-1835
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 94-1835



                           RICHARD MAHAN and FELICIA MAHAN,



                               Plaintiffs, Appellants,



                                          v.


PLYMOUTH COUNTY HOUSE OF CORRECTIONS, ET AL.,



                                Defendants, Appellees.



                                                     
                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________



                                                     
                                 ____________________


Cyr, Circuit Judge,
                                      _____________



                            Bownes, Senior Circuit Judge,
                                    ____________________



                              and Boudin, Circuit Judge.
                                          _____________



                                                     
                                 ____________________


Matthew Cobb, with whom Law Firm of Matthew Cobb was on brief for
             ____________            ________________________

        appellants.

             James B. Lampke for appellee Town of Hull.
             _______________

             Matthew  J. Buckley, with whom  Law Office of  Matthew J. Buckley
             ___________________             _________________________________

        was on brief for appellee Walter Bouchie.

             Steven  M.   Walsh  for   appellee   Plymouth  County   Sheriff's
             __________________

        Department.


____________________



                                  September 7, 1995

                                                     
                                 ____________________



CYR,  Circuit  Judge.   On  November  14, 1989,  Walter
                    CYR,  Circuit  Judge.
                          ______________



          Bouchie,  a detective  with the  Town of  Hull Police  Department



          ("Hull  Police  Department"),  executed  a valid  arrest  warrant



          against plaintiff-appellant Richard Mahan ("Mahan") for  the rape



          of  Sheila Commesso.1  The arrest took place in Mahan's hatchback



          automobile.   Bouchie and  other officers searched  the hatchback



          incident to the arrest and damaged a cord over the hatch area and



          a pocket tape recorder in the car.  



                    Following  the  arrest, Mahan  was  taken  to the  Hull



          Police  Station for  "booking."    Once  the "booking"  had  been



          completed,  Bouchie  began  interrogating  Mahan  without  giving



          Miranda warnings.  See  Miranda v. Arizona, 384 U.S.  436 (1966).
          _______            ___  _______    _______



          Mahan  asked  if he  had the  right  to speak  with  an attorney.



          Bouchie informed  him  that an  attorney  would be  appointed  at



          arraignment.   Mahan asserted a  right to remain  silent until an



          attorney was present.   Bouchie  then said, "[Y]ou  are going  to



          talk to me or I will lock you up in that cell down there, and you



          won't get  out."  When Mahan  would not relent, he  was placed in



          the holding cell.  No further questioning occurred.   



                    Within  hours of  the arrest,  a representative  of the



          Hull  Police Department  was sent  to Mahan's  home to pick  up a



          bottle  of medicine    Tegretol     which had  been prescribed in



          early  1989 for depression and  seizures caused by  a head injury

                              
          ____________________



               1The evidence and  inferences are related in  the light most

          favorable to Mahan, the party opposing judgment.  See Favorito v.
                                                            ___ ________

          Pannell, 27 F.3d 716, 719 (1st Cir. 1994); Fed. R. Civ. P. 50(a);
          _______

          Velez-Gomez v.  SMA Life Assur.  Co., 8 F.3d  873, 874 (1st  Cir.
          ___________     ____________________

          1993); Fed. R. Civ. P. 56.  



                                          3



Mahan sustained many years earlier.  The Tegretol bottle, clearly



          marked  with Mahan's name, the  name and telephone  number of the



          prescribing  physician, and  the dosage  to be  administered, was



          delivered to the Plymouth House of Corrections ("PHC") when Mahan



          was transferred  there  around 9:00  or  10:00 p.m.  on  Tuesday,



          November 14.  There is no record evidence that Mahan informed any



          corrections officer or other PHC personnel, prior to November 21,



          as to the actual symptoms he experienced while detained.  The PHC



          corrections  officers  repeatedly  refused Mahan's  requests  for



          Tegretol during the period November 14-21.2  



                    Mahan  first  arrived  at  PHC  late  Tuesday  evening,



          November  14, after  the  medical officer's  regular hours.   PHC



          corrections officers later informed  Mahan that a medical officer



          was present at PHC on  Tuesdays and Thursdays only.  On  November



          15  and 16,  Mahan was  taken to court  for arraignment  and bail



          review.  Thus, he was not seen by a medical  officer on Thursday,



          November  16, since he did not  return from court until after the



          medical officer  had left  for the  day.  Four  more days  passed



          before  a medical officer met with Mahan on Tuesday, November 21.



          In accordance  with PHC policy,  the medical officer  declined to



          administer Tegretol  to Mahan  without first contacting  the pre-



          scribing physician.  Within one or two  days after Mahan met with



          the medical officer on November 21, PHC administered the Tegretol



                              
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               2PHC policy prohibits  administering prescription  medicines

          to a detainee without  clearance from a "medical officer"  and on
                                                                     ___

          days  the  detainee is  scheduled to  appear  in court.   Medical

          officers are corrections officers with some medical training.



                                          4



to Mahan and his symptoms were alleviated. 



                    Although  Mahan was experiencing  severe depression and



          anxiety attacks, and  continuously complained to various  correc-



          tions  officers that he needed  the Tegretol, there  is no record



          evidence  that he ever informed PHC personnel that he was experi-



          encing these or any other symptoms  prior to November 21.  Nor is



          there any evidence that  PHC personnel ever witnessed,  or other-



          wise became aware  of, any such symptoms.  Mahan  testified to an



          anxiety attack on the  night of November 15, which  was witnessed



          by  a cellmate.3  A guard who  happened by the cell shortly after



          this  incident, inquired whether Mahan  was all right.   To which



          Mahan replied simply:  "I don't know.  I don't feel good."  Thus,



          there  is no evidence remotely  suggesting that PHC personnel had



          ever  been made aware  that Mahan's  condition might  warrant any



          deviation from the standard medical clearance policy. 



                    After  Mahan  was released  on bail,  he was  tried and



          acquitted, then initiated this section 1983 action, see 42 U.S.C.
                                                              ___



             1983, against  Detective  Bouchie and  the  Town of  Hull  for



          wrongful arrest and interrogation, and against PHC for wrongfully



          withholding  his prescription  medicine.   Felicia Mahan  filed a



          pendent  claim for  loss  of consortium.    Prior to  trial,  the



          district court  granted summary  judgment for  the Town of  Hull.



                              
          ____________________



               3The cellmate neither  testified nor  provided a  deposition

          concerning the  circumstances surrounding  any anxiety attack  or

          other symptom experienced by Mahan.  Mahan himself testified that

          he  asked his  wife to tell  his lawyer  that PHC  personnel were

          refusing to administer  Tegretol.  Yet the lawyer  neither testi-

          fied nor is there any evidence that he ever contacted PHC.  



                                          5



The Mahans proceeded to trial on their claims against Bouchie and



          PHC. 



                    During the  trial on  liability, Mahan and/or  his wife



          testified to the above-described events.  In addition, before the



          district court ordered  judgment as  a matter of  law under  Rule



          50(a),  Mahan  proposed to  call  the  prescribing physician,  to



          testify that Mahan  had a  "serious medical  need" for  Tegretol.



          Rather  than admit  the proffered  testimony, the  district court



          presumed, for purposes of the Rule 50(a) motion, that Mahan had a



          "serious medical need" for Tegretol.  



                    Thereafter,  the district  court directed  verdicts for



          Bouchie  and PHC,  ruling that  Mahan had  proffered insufficient



          evidence  to establish an unconstitutional deprivation in connec-



          tion  with his arrest;  the Miranda claim  failed as  a matter of
                                      _______



          law,  since no  interrogation actually  occurred after  Mahan re-



          quested  an  attorney; and  PHC  had not  acted  with "deliberate



          indifference" in withholding Mahan's prescription medicine. 



                    A  decision to  grant summary  judgment is  reviewed de
                                                                         __



          novo, Velez-Gomez  v. SMA Life Assur.  Co., 8 F.3d 873,  874 (1st
          ____  ___________     ____________________



          Cir. 1993), as is a judgment entered as a matter of law, Favorito
                                                                   ________



          v. Pannell, 27 F.3d 716, 719 (1st Cir. 1994). 
             _______



          A.   The Arrest
          A.   The Arrest
               __________



                    Under section 1983, a municipality may be answerable in



          damages under  section 1983  to a  person who  is subjected to  a



          deprivation of his constitutional rights as  a result of official



          action taken pursuant to a "custom or usage" of the municipality.


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See Monell v. New York City Dep't of Social Servs., 436 U.S. 658,
          ___ ______    ____________________________________



          691 (1978).  Mahan claims that there was sufficient evidence that



          the Town  of Hull, by  "custom and usage,"  investigated criminal



          complaints inadequately, thereby causing arrests without probable



          cause.   He relies on  our decision  in Bordanaro v.  McLeod, 871
                                                  _________     ______



          F.2d 1151,  1157 (1st  Cir.) (single  incident  may provide  some
                                        ______  ________               ____



          proof of municipal policy where, inter  alia, large contingent of
                                           _____  ____



          municipal police  officers engaged  in concerted  assaultive con-
                                                 _________



          duct),  cert.  denied, 493  U.S.  820  (1989).   Bordanaro  held,
                  _____  ______                            _________



          however, that  evidence of a single incident  is insufficient, in
                                                                         __



          and  of itself, to establish a municipal "custom or usage" within
          ___  __ ______



          the meaning of Monell.  Id. at 1156-57.  
                         ______   ___



                    Mahan  has  not brought  his  case  near the  Bordanaro
                                                                  _________



          umbrella, let alone under it.   He produced no evidence of  prior



          incidents of inadequate investigation  by the Hull Police Depart-



          ment.  Nor has he introduced direct evidence of improper investi-



          gatory  methods or practices employed by the police in this case.



          Thus, we discern no error in the district court decision granting



          summary  judgment on the section  1983 claim against  the Town of



          Hull.  



          B.   The Arrest and Search
          B.   The Arrest and Search
               _____________________



                    As there was insufficient  evidence to support a trial-



          worthy  claim against the Town  of Hull, there  was no actionable



          section 1983 claim against  Detective Bouchie relating to Mahan's



          arrest.  Mahan presented no evidence that Bouchie acted unreason-



          ably  in executing the valid arrest warrant, nor in effecting the


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arrest and contemporaneous automobile  search.  See United States
                                                          ___ _____________



          v.  Doward, 41 F.3d 789, 791 (1st  Cir. 1994) (police entitled to
              ______



          search  hatch-area of  automobile  incident to  lawful arrest  of



          driver), cert. denied, 115 S. Ct. 1716 (1995).  The damage to the
                   _____ ______



          hatchback cord  and the  tape recorder,  see supra  p. 2,  do not
                                                   ___ _____



          establish  a trialworthy  Fourth Amendment  "unreasonable" search



          claim.   There was  no error  in the district  court decision  to



          direct judgment as a matter of law in favor of Bouchie.  



          C.   The Miranda Claim
          C.   The Miranda Claim
               _________________



                    Mahan claims that  Bouchie violated his Miranda  rights
                                                            _______



          by refusing to read the required Miranda warnings and threatening
                                           _______



          to place  him in the  holding cell if  he declined to  respond to



          questioning without an attorney present.  We do not agree.  



                    An "accused must be adequately and effectively apprised



          of  his rights  and the  exercise of those  rights must  be fully



          honored."   Miranda, 384 U.S. at  467.  Although Bouchie  did not
                      _______



          give the required  Miranda warnings, it is undisputed  that Mahan
                             _______



          made  no statements  pertinent to  the Commesso  investigation in



          response to interrogation.  Upon Mahan's assertion that he wished



          to have an attorney  present during interrogation, Bouchie ceased



          all  interrogation.  Every court  of appeals which  has spoken to



          this matter in  similar circumstances has held that no actionable



          section 1983  claim lay.  See Weaver v. Brenner, 40 F.3d 527, 535
                                    ___ ______    _______



          (2d Cir. 1994); Wiley v. Doory,  14 F.3d 993, 996 (4th Cir. 1994)
                          _____    _____



          (Powell, J., sitting by designation); Mahoney v. Kesery, 976 F.2d
                                                _______    ______



          1054, 1061-62 (7th Cir.  1992); Cooper v. Dupnik, 963  F.2d 1220,
                                          ______    ______


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1242-44 (9th Cir.), cert.  denied, 113 S. Ct. 407  (1992); Warren
                              _____  ______                          ______



          v.  City of Lincoln, Neb., 864 F.2d  1436, 1442 (8th Cir.), cert.
              _____________________                                   _____



          denied, 490 U.S. 1091  (1989); Bennett v. Passic, 545  F.2d 1260,
          ______                         _______    ______



          1263 (10th Cir. 1976).   We now join  their ranks.  There  was no



          actionable  section 1983  claim relating  to the  alleged Miranda
                                                                    _______



          violation.4



          D.   The Eighth Amendment Claim
          D.   The Eighth Amendment Claim
               __________________________



                    Mahan  challenges the  district court  ruling directing



          judgment as  a matter  of law  on the claim  that PHC  refused to



          administer his Tegretol  for seven days.   This claim  implicates



          the  established  PHC  clearance  policy  preventing  corrections



          officers  from administering  prescribed  medicines on  days  the



          detainee is scheduled to  appear in court and until  permitted to
                                                    ___



          do so by a "medical officer."  



                    Eighth Amendment claims  by pretrial detainees alleging



          denials  of medical  assistance essentially  turn on  whether the



          challenged official action constituted  "deliberate indifference"



          to  a "serious  medical need".   Consolo v. George,  58 F.3d 791,
                                           _______    ______



          793-94 (1st Cir. 1995); Bowen v. City of Manchester, 966 F.2d 13,
                                  _____    __________________



                              
          ____________________



               4Although  there can be no question  that the alleged threat

          by Bouchie to  keep Mahan in the holding cell  until he responded

          to  further questions    assuming  it were credited  by the fact-

          finder    would be  fully deserving of official sanction,  it did

          not rise to the egregious level of police misconduct required for

          an actionable   1983  claim absent evidence that it  succeeded in

          overbearing  Mahan's will  to exercise  his Miranda rights.   Cf.
                                                      _______           __

          Cooper, 963 F.2d at  1240-50 (police who engaged in  conduct that
          ______

          "shocks the conscience," by  attempting to "grill [suspect] until

          he  confessed," and  questioning him  for thirty  minutes despite

          assertion of right to  counsel, are subject to liability  under  

          1983 even though defendant does not incriminate himself).  



                                          9



17  n.13 (1st Cir. 1992).  A  "serious medical need" is one "that



          has  been diagnosed by a physician as mandating treatment, or one



          that is so obvious that even a lay  person would easily recognize



          the  necessity for a doctor's  attention."  Gaudreault v. Munici-
                                                      __________    _______



          pality of Salem, Mass., 923 F.2d  203, 208 (1st Cir. 1990), cert.
          ______________________                                      _____



          denied, 500 U.S. 956 (1991).  The prescription indicated, and the
          ______



          district  court assumed,  that  Mahan needed,  and would  benefit



          from,  Tegretol.  The  record thus established  a serious medical



          need.5  



                    As the  district court found, however,  the record does



          not  establish a  trialworthy  claim that  PHC was  "deliberately



          indifferent"  to Mahan's  "serious  medical need."   The  Supreme



          Court  recently defined  "deliberate indifference" in  the prison



          context.   See Farmer v.  Brennan, 114  S. Ct. 1970  (1994).   In
                     ___ ______     _______



          order to  be found  "deliberately indifferent,"  prison officials



          must  be shown  to have  been subjectively  aware of  a condition
                                        ____________



          requiring their intervention.   Id. at 1980-82.  The  evidence in
                                          ___



          this case established one component of the "subjective awareness"



          requirement; viz., PHC corrections  officers were well aware that



          Tegretol had  been prescribed for  Mahan, and that  he repeatedly



          requested it.  



                    Nevertheless, the record on appeal contains no evidence



                              
          ____________________



               5PHC  argues that  the district  court ruling should  be af-

          firmed  on the  ground that  Tegretol would  not have  alleviated

          Mahan's  anxiety  attacks.   Given  the  presumption of  "serious

          medical need"  apparently indulged  by the district  court, which

          obviated  the  necessity  for  Mahan's  prescribing  physician to

          testify, see supra p. 4, we must reject this suggestion. 
                   ___ _____



                                          10



from which a rational factfinder could conclude that PHC  person-



          nel were informed, or otherwise  learned, of the serious symptoms



          Mahan  actually experienced  while detained,  such as  would have



          made  them  subjectively aware  of  a  condition requiring  their



          intervention prior to November  21.  Id. at 1980-82;  cf. Miranda
                                               ___              __  _______



          v.  Munoz, 770  F.2d 255,  257-59 (1st Cir.  1985) (acknowledging
              _____



          that prison officials knew pretrial detainee's epilepsy not under



          control).   Absent evidence of subjective  awareness, there could



          be no "deliberate indifference"  to Mahan's serious medical need.



          Farmer, 114 S. Ct.  at 1980-82.  Consequently, the  Eighth Amend-
          ______



          ment claim failed as a matter of law.  See United States v.  John
                                                 ___ _____________     ____



          Doe, a/k/a Pizarro-Calderon, No. 94-1096, slip op. at  11-12 (1st
          ___________________________



          Cir. Aug.  4, 1995)  (appellate court  may affirm district  court



          ruling on any ground supported in record).  



                    Our ruling should not  be misconstrued as condoning the



          status  quo, however, but merely as indicating that PHC cannot be



          held liable for  failing to  adjust its policy  to accommodate  a



          "serious  medical need"  of which  it was  not  made aware.6   In



          these circumstances,  Mahan simply failed  to introduce  evidence



          essential to enable a reasonable  factfinder to conclude that PHC



          violated his Eighth Amendment rights.      



                    The district  court judgment is affirmed.   All parties
                                                    ________

                              
          ____________________



               6We add that the seemingly inflexible PHC policy relating to

          prescription medicines, coupled  with the limited "medical  offi-

          cer" hours, could  well have  resulted in serious  harm to  Mahan

          during the extended and  stressful period the medicine  needed to

          control  his previously  diagnosed condition  was withheld.   See
                                                                        ___

          Miranda, 770 F.2d at 259 (detainee died after epileptic seizure).
          _______


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shall bear their own costs.   


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