Filed: Jul. 23, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-23-2004 Kartorie v. Dunham Precedential or Non-Precedential: Non-Precedential Docket No. 03-2330 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Kartorie v. Dunham" (2004). 2004 Decisions. Paper 465. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/465 This decision is brought to you for free and open access by the Opinions of the Uni
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-23-2004 Kartorie v. Dunham Precedential or Non-Precedential: Non-Precedential Docket No. 03-2330 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Kartorie v. Dunham" (2004). 2004 Decisions. Paper 465. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/465 This decision is brought to you for free and open access by the Opinions of the Unit..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-23-2004
Kartorie v. Dunham
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-2330
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Kartorie v. Dunham" (2004). 2004 Decisions. Paper 465.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/465
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 03-2330
WILLIS KARTORIE,
Appellant
v.
BRADLEY DUNHAM; WILLIAM TUCKER;
OFFICER SPACOFF; JOHN DOE, I;
JOHN DOE, II; YORK HOSPITAL
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 02-cv-00346)
District Judge: Hon. John E. Jones, III
Submitted Under Third Circuit LAR 34.1(a)
July 15, 2004
Before: SLOVITER, BARRY and WEIS, Circuit Judges
(Filed: July 23, 2004 )
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Pursuant to 42 U.S.C. § 1983, the appellant, Willis Kartorie (“Kartorie”), sued
Pennsylvania State Trooper William Tucker (“Tucker”), John Doe I (Dr. David Eitel),
John Doe II 1 , and York Hospital (“York”) alleging that the defendants had violated his
rights under the Fourth Amendment to be free of excessive force, unlawful searches and
seizures, and invasions of privacy. Kartorie also sued Pennsylvania State Trooper
Bradley Dunham (“Dunham”) alleging malicious prosecution for filing a non-traffic
summary citation for disorderly conduct not supported by probable cause in violation of
Kartorie’s Fourth Amendment rights.
The District Court granted the motions for summary judgment of all defendants
except on the issue of material fact as to whether Tucker used excessive force against
Kartorie. That claim went to trial and a jury returned a verdict in favor of Tucker.
Kartorie appeals from the order granting the defendants’ motions for summary judgment
and the court’s refusal to grant his post-trial motions and a new trial on the claim against
Tucker.
The District Court had subject matter jurisdiction over Kartorie’s Section 1983
claim pursuant to 28 U.S.C. §§ 1331 and 1343. We have appellate jurisdiction pursuant
to 28 U.S.C. § 1291.
1
John Doe II was never named and the District Court therefore dismissed all counts
against that Defendant.
2
II.
A. Kartorie’s Fourth Amendment Claims
On January 12, 2001, at around 7:30p.m., Pennsylvania State Trooper Tucker
pulled over Kartorie on suspicion that Kartorie was driving under the influence of
alcohol. Tucker placed Kartorie under arrest for Driving Under the Influence, Resisting
Arrest, Possession of a Small Amount of Marijuana, Possession of Drug Paraphernalia,
and Driving on the Right Side of Roadway.
Kartorie struggled when Tucker attempted to handcuff him. Kartorie testified that
he was unable to place his right arm behind his back due to a stroke he had suffered some
years before. Tucker claimed that Kartorie was uncooperative and screaming obscenities,
which forced Tucker to spray Kartorie with pepper spray and wrestle him to the ground in
order to place him in handcuffs.
Tucker read Kartorie his Miranda rights during the car ride to the police station.
After Kartorie refused to submit to a blood alcohol content (“BAC”) test, Tucker
transported him to the York Hospital laboratory in order to have witnesses to this refusal.
When Tucker and Kartorie reached the hospital, Tucker read Kartorie warnings pursuant
to Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989), that his driver’s license would
be suspended for one year if he refuses to take a breathalyzer test, and Kartorie again
refused to submit to a BAC test.
At the Hospital’s emergency department, Kartorie refused to provide any medical
3
history and refused all medical attention. Dr. David Eitel (“Dr. Eitel”), an emergency
room doctor, observed that Kartorie appeared intoxicated, swayed while seated, had
bloodshot eyes, slurred speech, and had alcohol odor in his breath. Kartorie also
exhibited signs of irritability and uncontrollable anger that are indicative of hypoglycemia
and/or intoxication. Dr. Eitel, in an attempt to rule out the possibility of hypoglycemia,
ordered nurse Deborah E. Barnes to perform an Accu-Chek, a test requiring a pin prick on
a patient’s finger to draw a single drop of blood for testing the patient’s blood sugar level.
Dr. John W. Patterson, an expert for York, stated that Dr. Eitel’s conduct in ordering the
Accu-Chek test to rule out hypoglycemia was proper and within the medical standard of
care. Tucker did not ask that the Accu-Chek test be performed on Kartorie and did not
participate in deciding whether or not to administer the test.
When Kartorie verbally refused and then physically resisted the Accu-Chek test, he
was wrestled to the ground and blood was taken from him to perform the blood sugar test.
There was conflicting testimony as to who restrained Kartorie when the blood was
extracted. Tucker and several members of the York Hospital staff testified at trial that
Tucker did not participate in wrestling Kartorie to the ground. Kartorie testified that
hospital security guards wrestled him to the ground and Tucker put a knee in his neck.
After the blood test was administered, Kartorie was helped up from the floor. The test
determined that Kartorie was not suffering from hypoglycemia and Kartorie was
discharged from the York Hospital emergency department. Tucker testified that Kartorie
4
was in his custody at all times while at the hospital.
In his complaint, Kartorie alleged that York, Eitel, and Tucker violated his rights
under the Fourth Amendment to be free of excessive force, unlawful searches and
seizures, and invasions of privacy. After discovery, the District Court granted all of the
defendants’ motions for summary judgment. As to York, the court held that “the law
provides no cause of action for vicarious liability for constitutional violations under the
theory of respondeat superior.” App. at 32-33. The court held that Dr. Eitel had a
“legitimate and independent motivation” – that is, a purely medical evaluation – for
directing that a nurse draw blood from Kartorie. App. at 38-39.
Finally, the court held that Tucker was entitled to qualified immunity with respect
to Kartorie’s claim that Tucker violated his civil rights by allowing private parties to take
his blood against his will while he was in Tucker’s custody. The court, however, denied
Tucker’s motion for summary judgment with respect to Kartorie’s excessive force claim,
ruling that there was an issue of genuine material fact as to whether or not Tucker
restrained Kartorie at the hospital, placed his knee on Kartorie’s neck, and whether
Tucker’s use of force, if true, was reasonable. The jury returned a verdict in favor of
Tucker on Kartorie’s use of force claims. The District Court denied Kartorie’s post-trial
motions.
B. Kartorie’s M alicious Prosecution Claim
Kartorie was taken from the York Hospital emergency department to the
5
Pennsylvania State Police Barracks. While using the public restroom, he dropped a paper
towel on the floor. Both Tucker and State Trooper Dunham told Kartorie to pick up the
paper towel, but Kartorie responded with obscenities and refused. He turned away from
the lavatory, approached Dunham and Tucker and, with his penis exposed, threatened to
urinate on them.
Dunham and Tucker escorted Kartorie back to his holding cell. Dunham then
filled out a summary citation for Kartorie’s disorderly conduct. A state district justice
found him not guilty of disorderly conduct.
Kartorie’s § 1983 complaint included a claim against Dunham for malicious
prosecution for filing misdemeanor level charges arising from the restroom incident. The
District Court granted Dunham’s motion for summary judgment holding that no claim for
malicious prosecution can be had for a summary citation.
III.
We exercise plenary review over a District Court’s decision to grant summary
judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002). We review a District
Court’s order denying a motion for a new trial for abuse of discretion unless the Court’s
denial is based on the application of a legal precept, in which case our review is plenary.
See Smith v. Holtz,
210 F.3d 186, 200 (3d Cir. 2000).
6
IV.
A. The Accu-Chek Test
Kartorie contends that the District Court erred in granting summary judgment in
favor of the defendants for the Accu-Chek test being performed against his will.
However, his brief makes no arguments specifically directed to the grant of summary
judgment in favor of York Hospital. A mere passing reference to an issue is insufficient
to bring that issue before us on appeal. See Skretvedt v. E.I. DuPont De Nemours, 2004
WL 1336274, at *6 (3d Cir. June 16, 2004). Even if Kartorie’s challenge has not been
waived, this claim against York cannot succeed because there is no vicarious, respondeat
superior liability under § 1983. C.H. ex rel. Z.H. v. Oliva,
226 F.3d 198, 202 (3d Cir.
2000).
Kartorie’s § 1983 claim against Dr. Eitel is similarly defective. A § 1983 plaintiff
must establish that the deprivation of a right secured by the constitution or laws of the
United States was caused by a person acting under color of state law. Angelico v. Lehigh
Valley Hosp., Inc., 184 F.3d 268, 277 (3d Cir. 1999). Such an act by a private person can
be fairly attributable to the state only if the deprivation is caused by the exercise of some
right or privilege created by the state or by a rule of conduct imposed by the state or by a
person for whom the state is responsible, and the party charged with the deprivation may
fairly be said to be a state actor. Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 n.15
(1982).
7
Dr. Eitel was not a state official and was under no contract with the state. He also
did not act in a manner chargeable to the state. Tucker, the only state official present
when the Accu-Chek test was administered, did not participate in making the decision to
perform the test on Kartorie, which was a medical decision made to rule out the
possibility of hypoglycemia in accordance with the accepted medical standard of care.
Kartorie testified in his deposition that he heard a conversation between Tucker
and Dr. Eitel, but he could not recall whether it took place before or after he was subdued
and blood was taken against his will and, more important, he could not hear the content of
the alleged conversation. This vague testimony cannot create a genuine issue of fact with
the testimony of Tucker, Dr. Eitel, and other members of the York Hospital staff who
testified that no such conversation transpired. Dr. Eitel’s decision to perform the Accu-
Chek test, therefore, was motivated by his own medical judgment and not as the result of
any state action.
Nor did Dr. Eitel violate Kartorie’s Fourth Amendment rights by performing the
Accu-Chek test against his will. Dr. Eitel testified that the decision to perform that test
was motivated solely by his professional medical judgment that the possibility of
hypoglycemia needed to be eliminated. A search or seizure conducted by a private party
does not violate the Fourth Amendment when the private individual has a “legitimate
independent motivation” for conducting the search. United States v. Walther, 652 F.2d
788 (9th Cir. 1981). Because Dr. Eitel had a legitimate independent motivation for
8
ordering the Accu-Chek test, his conduct did not violate Kartorie’s Fourth Amendment
rights and summary judgment was appropriate.
Finally, Kartorie contends that the District Court erred in granting Tucker qualified
immunity on Kartorie’s claim alleging that Tucker violated his Fourth Amendment rights
by allowing York Hospital personnel to draw blood against his will while he was in
Tucker’s custody. Kartorie seeks to rely on the decision in Cruzan v. Director, Missouri
Dept. of Health, 497 U.S. 261, 278 (1990), where the Supreme Court stated, “The
principle that a competent person has a constitutionally protected liberty interest in
refusing unwanted medical treatment may be inferred from our prior decisions.” Because
hypoglycemia can affect a person’s judgment and render that person incompetent to make
an informed medical decision, it was necessary for York Hospital personnel to make sure
that Kartorie was competent to make a decision refusing to receive medical treatment.
His wish was honored after it was determined that he was not suffering from
hypoglycemia. The Pennsylvania statute, 75 Pa. Cons. Stat. § 1547, that provides a right
to refuse to have blood drawn for chemical testing is not implicated because Kartorie’s
blood was not tested for the presence of any chemicals. We therefore conclude that
Tucker did not violate Kartorie’s Fourth Amendment rights in allowing the Accu-Chek
test to take place.
B. The Malicious Prosecution Claim
In order to state a claim for malicious prosecution, the plaintiff must be seized and
9
suffer a deprivation of liberty. Gallo v. City of Phila., 161 F.3d 217, 222 (3d Cir. 1998).
In Gallo, for example, the plaintiff’s liberty was restricted in the following ways: he had
to post a $10,000 bond, attend all court hearings including his trial and arraignment,
contact Pretrial Services on a weekly basis, and he was prohibited from traveling outside
New Jersey and Pennsylvania.
Id. In contrast, Kartorie was already in police custody
when he was given the summary citation for disorderly conduct. There was a summary
trial, scheduled at his request, at which he was found not guilty. He was also not forced
to attend any hearings because of the citation. Therefore, he was not seized, nor was his
liberty restricted in any way as a direct consequence of the summary citation. It follows
that there was no seizure as a result of Dunham filing the summary citation, Kartorie’s
Fourth Amendment rights were not violated, and the District Court did not err in granting
Dunham summary judgment on Kartorie’s claim for malicious prosecution.
C. Post-Trial Motions
Kartorie contends that the District Court erred when, in denying his post-trial
motions, it rejected his contention that he was entitled to argue at closing argument that
Tucker’s mere presence during the administration of the Accu-Chek test, without more,
was sufficient to support a claim for excessive force.
The Supreme Court has held that a seizure for the purposes the Fourth Amendment
can occur when by means of physical force or show of authority a police officer in some
way restrains the liberty of a citizen. Graham v. Connor, 490 U.S. 386, 395 n.10 (1989).
10
Some Court of Appeals cases recognize excessive force claims where the force is
expressed by means other than physical contact, and there was some show of authority or
threat directed towards the victim. See, e.g., McDonald v. Haskins, 966 F.2d 292, 294
(7th Cir. 1992) (pointing a gun to the head of plaintiff and threatening to shoot could
amount to a consitutional violation); Holland v. Harrington,
268 F.3d 1179, 1190 (10th
Cir. 2001) (suggesting that using a SWAT team may constitute excessive force). Here,
Tucker was present in the emergency department when Kartorie’s blood was drawn for
medical testing but there was no evidence that Tucker threatened Kartorie or used any
force in an attempt to make him submit to the test. Kartorie’s argument with respect to
excessive force was a misstatement of the law and the District Court did not err in
sustaining Tucker’s objection.
V.
For the reasons set forth, we will affirm the District Court’s order granting
summary judgment and denying Kartorie’s post-trial motions.
11
