          United States Court of Appeals
                       For the First Circuit
No. 00-2369

                          JOSÉ O. GARCÍA,

                       Plaintiff, Appellant,

                                 v.

            CITY OF BOSTON, JOHN DOE, JOHN DOE, II,
               BOSTON EMERGENCY SERVICE TEAM, AND
          NEW ENGLAND MEDICAL CENTER HOSPITALS, INC.,

                      Defendants, Appellees.



          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Morris E. Lasker, U.S. District Judge]



                               Before

                      Torruella, Chief Judge,

                 Campbell, Senior Circuit Judge,

                and Bownes, Senior Circuit Judge.



     William E. Gately, Jr., on brief, for appellant.
     William J. Donahue, Assistant Corporation Counsel, with whom
Merita A. Hopkins, Corporation Counsel, were on brief, for appellee
City of Boston.
     Alan B. Rindler, with whom Rindler Morgar, P.C. and Nadine Nasser
Donovan, were on brief, for appellees Boston Emergency Services Team
and New England Medical Center Hospitals, Inc.
June 12, 2001




     -2-
          Per Curiam. Appellant José O. García appeals a decision

granting summary judgment in favor of appellees City of Boston

("City"), Boston Emergency Services Team ("BEST"), and New England

Medical Center Hospitals, Inc. ("NEMC").       We affirm.

          On August 19, 1994, García was arrested by the Boston Police

Department ("BPD") after he was involved in a domestic disturbance. He

was charged with violating Mass. Gen. Laws ch. 209A (threats of

violence under Massachusetts Domestic Violence Law) and Mass. Gen. Laws

ch. 265, § 13D (assault and battery upon police officers).1 The BPD

took him to the station, where he was booked and placed in a cell.

Because García was arrested on a Friday night, he would not be

arraigned until Monday morning.

          That evening, García, in an apparent suicide attempt, made

some superficial cuts to his wrist with the aluminum top of a juice

container. An ambulance was called, but it was determined that García

did not want nor need further medical treatment. He was then placed on

the suicide list and handcuffed to the "suicide wall,"2 located in the

booking area.




1 In addition to the new charges, García had an outstanding default
warrant issued against him.
2 The "suicide wall" was a bar in the booking area to which prisoners
who were identified as suicide risks were handcuffed in order to more
closely monitor them.

                                 -3-
          On Saturday evening, still handcuffed to the suicide wall,

García somehow obtained matches and lit himself on fire. He was taken

to Boston City Hospital ("BCH") where he received treatment for first

and second degree burns.     While at BCH, a resident psychiatrist

evaluated García, and concluded that he was a suicide risk. Steps were

taken to facilitate an inpatient admission to an area hospital.

Because BCH did not have inpatient facilities, BEST3 was contacted in

order to locate an appropriate facility for García.        García was

uninsured, and therefore ineligible for admission into a private

facility. His only option, then, was a Department of Mental Health

("DMH") center.

          Accordingly, DMH Adjudicator Jim Galvin was contacted about

admitting García to a facility. Galvin took the position that because

García was under arrest and not yet arraigned, it would violate a DMH

policy to admit him.   In order to obtain admission, García had to

either be arraigned or have the charges against him dropped. There was

no judge available to arraign García. In addition, the BPD refused to

drop the charges against García because of their severity. After an

unsuccessful attempt by the BPD to persuade BCH to allow García to




3 BEST is a program of the NEMC's Department of Psychiatry. Its stated
function is to "provide timely, quantitative assessment and disposition
for individuals in the Boston Area who require emergency psychiatric
services."

                                 -4-
stay, under police guard, until his Monday morning arraignment, García

was returned to the station and handcuffed to the suicide wall.

          Upon his return to the station, García again obtained some

matches and lit his shirt on fire. The fire was quickly extinguished

without injury.    Shortly thereafter, Officer William Cullinane

distributed lunches to the prisoners locked to the suicide wall.

Somehow, García was able to remove Officer Cullinane's gun from his

holster and began firing the weapon. Officer Cullinane and another

prisoner on the suicide wall were shot by García before Officer Stephen

Fahey shot García in the arm, causing García to drop Officer

Cullinane's weapon.

          García subsequently brought this suit against the City,

alleging violations of his constitutional rights under 42 U.S.C. § 1983

and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I.

He later amended his complaint to include claims of negligence and

breach of contract against BEST and the NEMC. The City, and BEST and

NEMC collectively, moved for summary judgment, which the district court

granted as to all claims. García v. City of Boston, 115 F. Supp. 2d 72

(D. Mass. 2000) (Mem. and Order).

          Ruling on the City's motion, the district court held the

following. As to García's excessive and unreasonable force claim,

García failed to fulfill any of the requirements of the four-part test

that the district court applied. See Johnson v. Glick, 481 F.2d 1028,


                                 -5-
1033 (2d Cir. 1973), rejected on other grounds, Graham v. Connor, 490

U.S. 386 (1989). Specifically, the district court held that there was

"a clear need for the use of force" when Officer Fahey shot García in

the arm, namely because García was firing a gun and had already shot an

officer and a fellow prisoner. García, 115 F. Supp. 2d at 81. In

addition, that force was proportionate to the need, and, considering

the circumstances, García's injury was relatively minor. Id. Finally,

"there [wa]s absolutely no evidence" of bad faith on the part of

Officer Fahey or that his actions were taken "maliciously or

sadistically for the very purpose of inflicting harm."         Id.

          Even construing the material facts in the light most

favorable to García, Campbell v. Wash. County Technical Coll., 219 F.3d

3, 5 (1st Cir. 2000), we can perceive no construction of the evidence

that could sustain this claim. Without commenting on the appropriate

test to be employed when evaluating an excessive and unreasonable force

claim in these circumstances,4 we affirm the holding of the district

court on this issue.

          As to García's denial of medical and psychological care

charge, the district court first identified a "duty to attend to a



4 In declining to comment, we note only that neither the Supreme Court
nor this circuit have established a test for this factual scenario.
Compare Johnson, 481 F.2d at 1033 (test used above), with Bell v.
Wolfish, 441 U.S. 520, 535-37 (1979) (evaluating conditions of pre-
trial detention), and Evans v. Avery, 100 F.3d 1033, 1038 (1st Cir.
1996) (high speed police pursuits).

                                 -6-
prisoner's 'serious medical needs.'" García, 115 F. Supp. 2d at 82

(quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The court found

that García's psychological problems constituted serious medical needs.

Id. García, however, did not demonstrate that his failure to receive

inpatient treatment was the result of "an unconstitutional custom or

policy." Id. at 83. The BPD did have a policy for handling suicidal

prisoners like García. It was García's unusual situation, of being

uninsured and pre-arraignment, coupled with the DMH's policy of

refusing to admit psychiatric patients who had not been arraigned, that

resulted in García not being placed in a facility.         "Deliberate

indifference" to García's medical needs played no role in this

incident. Id. at 82-83 (quoting Estelle, 429 U.S. at 104). Thus,

García's § 1983 claim necessarily failed.         Id. at 84.

             We agree with the district court's reasoning and conclusion

and affirm on that basis. We also affirm the district court's holding

that García's failure to establish a § 1983 claim essentially equates

to a failure to establish a claim under the Massachusetts Civil Rights

Act.   Id.

             The district court also held that García's negligence and

contract claims against BEST and NEMC could not be sustained. Id. at

77. García alleged two theories under negligence: medical malpractice

and administrative negligence. The district court found that a medical

malpractice claim was not viable, because García could not demonstrate,


                                   -7-
as required by Massachusetts medical malpractice law, that a physician-

patient relationship between García and either BEST or NEMC existed.

Id. at 78. We agree. The administrative negligence claim is even

weaker, and we affirm the district court's conclusion that neither BEST

nor NEMC was negligent.     Id. at 79.

          Citing its prior holding that the DMH policy was the cause

of García not being admitted to an inpatient facility, the district

court concluded that BEST and NEMC fulfilled the terms of their

services contract. As such, García's contract claim failed. Id. at

80.   Again, we agree with the district court in this regard.

          Having upheld the holdings of the district court in all

respects, we affirm the granting of summary judgment and dismissal of

this complaint.




                                 -8-
