
USCA1 Opinion

	




                            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
