Mahan v. Plymouth County House of Corrections

                  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

                    
                              

     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.

                                6


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

                                7


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,
                                                          

                                8


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).
                 

                                11


shall bear their own costs.   

                                12