USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 94-1835
RICHARD MAHAN and FELICIA MAHAN,
Plaintiffs, Appellants,
v.
PLYMOUTH COUNTY HOUSE OF CORRECTIONS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Matthew Cobb, with whom Law Firm of Matthew Cobb was on brief for
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appellants.
James B. Lampke for appellee Town of Hull.
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Matthew J. Buckley, with whom Law Office of Matthew J. Buckley
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was on brief for appellee Walter Bouchie.
Steven M. Walsh for appellee Plymouth County Sheriff's
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Department.
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September 7, 1995
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CYR, Circuit Judge. On November 14, 1989, Walter
CYR, Circuit Judge.
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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).
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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
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1The evidence and inferences are related in the light most
favorable to Mahan, the party opposing judgment. See Favorito v.
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Pannell, 27 F.3d 716, 719 (1st Cir. 1994); Fed. R. Civ. P. 50(a);
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Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874 (1st Cir.
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1993); Fed. R. Civ. P. 56.
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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
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days the detainee is scheduled to appear in court. Medical
officers are corrections officers with some medical training.
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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.
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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.
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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
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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
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novo, Velez-Gomez v. SMA Life Assur. Co., 8 F.3d 873, 874 (1st
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Cir. 1993), as is a judgment entered as a matter of law, Favorito
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v. Pannell, 27 F.3d 716, 719 (1st Cir. 1994).
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A. The Arrest
A. The Arrest
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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,
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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
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F.2d 1151, 1157 (1st Cir.) (single incident may provide some
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proof of municipal policy where, inter alia, large contingent of
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municipal police officers engaged in concerted assaultive con-
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duct), cert. denied, 493 U.S. 820 (1989). Bordanaro held,
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however, that evidence of a single incident is insufficient, in
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and of itself, to establish a municipal "custom or usage" within
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the meaning of Monell. Id. at 1156-57.
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Mahan has not brought his case near the Bordanaro
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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
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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
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v. Doward, 41 F.3d 789, 791 (1st Cir. 1994) (police entitled to
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search hatch-area of automobile incident to lawful arrest of
driver), cert. denied, 115 S. Ct. 1716 (1995). The damage to the
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hatchback cord and the tape recorder, see supra p. 2, do not
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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
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Mahan claims that Bouchie violated his Miranda rights
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by refusing to read the required Miranda warnings and threatening
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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
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give the required Miranda warnings, it is undisputed that Mahan
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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
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(2d Cir. 1994); Wiley v. Doory, 14 F.3d 993, 996 (4th Cir. 1994)
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(Powell, J., sitting by designation); Mahoney v. Kesery, 976 F.2d
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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
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v. City of Lincoln, Neb., 864 F.2d 1436, 1442 (8th Cir.), cert.
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denied, 490 U.S. 1091 (1989); Bennett v. Passic, 545 F.2d 1260,
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1263 (10th Cir. 1976). We now join their ranks. There was no
actionable section 1983 claim relating to the alleged Miranda
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violation.4
D. The Eighth Amendment Claim
D. The Eighth Amendment Claim
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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
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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,
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793-94 (1st Cir. 1995); Bowen v. City of Manchester, 966 F.2d 13,
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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.
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Cooper, 963 F.2d at 1240-50 (police who engaged in conduct that
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"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).
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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-
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pality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990), cert.
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denied, 500 U.S. 956 (1991). The prescription indicated, and the
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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
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order to be found "deliberately indifferent," prison officials
must be shown to have been subjectively aware of a condition
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requiring their intervention. Id. at 1980-82. The evidence in
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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
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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.
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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
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v. Munoz, 770 F.2d 255, 257-59 (1st Cir. 1985) (acknowledging
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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-
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ment claim failed as a matter of law. See United States v. John
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Doe, a/k/a Pizarro-Calderon, No. 94-1096, slip op. at 11-12 (1st
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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
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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
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Miranda, 770 F.2d at 259 (detainee died after epileptic seizure).
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shall bear their own costs.
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