                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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"Kartorie v. Dunham" (2004). 2004 Decisions. Paper 465.
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                                                NOT PRECEDENTIAL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
