United States District Court, N.D. Ohio, Western Division
JOHN W. GOLD, Plaintiff,
CITY OF SANDUSKY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. Knepp II United States Magistrate Judge
September 25, 2015, John W. Gold (“Plaintiff”)
filed a Complaint against: (1) the City of Sandusky, John
Orzech, Phil Frost, Officer Lester A. Peters, Officer Kyle
Dumond, and Officer Mark Gilliam; (2) Firelands Regional
Medical Center (“FRMC”) and Thomas Manuguerra,
R.N. (“Nurse Manuguerra”); and 3) ER DOC, Inc.
and Patrick Tupa, D.O. (“Dr. Tupa”). (Doc.
In the Complaint, Plaintiff alleged violations of 42 U.S.C.
§ 1983, the Ohio Constitution, and Ohio statutes.
Id. Currently pending before the Court are Motions
for Summary Judgment filed by all Defendants (Docs. 40,
54-55, 58), to which Plaintiff has filed a combined
Opposition (Doc. 69), and Defendants have filed Replies
(Docs. 71, 74, 75). Plaintiff also filed a Sur-Reply to the
ER Doc Defendants Reply. (Doc. 77). For the reasons discussed
below, the undersigned GRANTS Defendants motions for summary
judgment as to Plaintiff's federal claims, and DISMISSES
without prejudice Plaintiff's remaining state-law claims.
case arises from an interaction between Plaintiff and
Defendants on the night of September 26, 2014 and the early
morning of September 27, 2014. Viewing the facts in the light
most favorable to Plaintiff, the background of this case is
as follows: The Accident On the evening of September
26, 2014, Plaintiff crashed his car into a utility pole after
consuming two or three Angry Orchards, each with a shot of
Fireball whiskey. (Plaintiff Depo., Doc. 44, at
13-21). Plaintiff was distracted by his phone
before the accident. Id. at 17, 21. The car was
totaled. Id. at 25-26. After the accident, Plaintiff
got out of his car, called his girlfriend, and began walking
home. Id. at 26. He got a couple of blocks before
the police arrived, in at least two cars. Id. at 30.
Plaintiff recognized one of the officers as Mark Gilliam.
Id. The other officer was Lester Peters. (Peters
Depo., Doc. 46, at 8).
officers handcuffed Plaintiff and took his wallet out of his
back pocket. (Plaintiff Depo., Doc. 44, at 31). Officer
Peters testified Plaintiff smelled of alcohol. (Peters Depo.,
Doc. 46, at 46). Plaintiff was not initially told why he was
being arrested, but was later told he was being placed under
arrest for operating a vehicle while impaired. (Plaintiff
Depo., Doc. 44, at 32). The officers asked him to identify
himself, but Plaintiff decided not to speak to them.
Id. at 31, 38.
Gillam and Peters transported Plaintiff to the scene of the
crash in the back of a police car. Id. at 37; Peters
Depo., Doc. 46, at 14. Officer Peters asked Plaintiff if he
needed medical attention, but Plaintiff did not respond.
(Peters Depo., Doc. 46, at 14). Officer Peters then called
the Sandusky Fire Department paramedics to evaluate
Plaintiff. Id. Officer Peters told the paramedics
that Plaintiff had been involved in an accident, was not
talking, and that Peters did not know if Plaintiff was
injured. Id. at 20. The paramedics removed Plaintiff
from the police car, placed him on a backboard, and loaded
him in an ambulance. Id. Plaintiff resisted; he did
not want to get into the ambulance, but his “priority
was really just keeping [his] mouth shut” because he
did not want to communicate with the police. (Plaintiff
Depo., Doc. 44, at 38-39). While Plaintiff was in the back of
the ambulance, Officer Peters read him a Form 2245, which
explains the police want OVI suspects to submit to tests.
(Peters Depo., Doc. 46, at 23). Plaintiff did not respond, so
the form was marked as a refusal. Id. at 27, 43.
Officer Dumond arrived when Plaintiff was in the ambulance.
(Dumond Depo., Doc. 47, at 11).
transported Plaintiff to the hospital in the ambulance.
(Peters Depo., Doc. 46, at 20). Officer Dumond walked to the
hospital. (Dumond Depo., Doc. 47, at 12). Officer Peters
followed the ambulance to FRMC. (Peters Depo., Doc. 46, at
37). He spoke to the charge nurse and reported Plaintiff had
been involved in a car accident and was not answering
questions. Id. at 29. Officer Peters never asked
anyone at FRMC to obtain blood or urine testing for alcohol
content. Id. at 37-38, 49. Officer Peters stayed at
the hospital for five to ten minutes. Id.at 28.
Officer Dumond stayed after the other officers left. (Dumond
Depo. Doc. 47, at 26-27). Dumond also testified he did not
ask anyone at FRMC to obtain Plaintiff's blood alcohol
level. Id. at 33-34.
medical record reflects that Plaintiff arrived at the FRMC
emergency department at 12:22 a.m. on September 27, 2014.
(Manuguerra Depo., Doc. 45, at 31). The chief complaint
recorded by Nurse Manuguerra was “trauma major”,
which he defined as “any trauma that is potential[ly]
life threatening.” Id. at 32; see
also Ex. A, Doc. 55-1, at 4 (emergency room report). Mr.
Manuguerra made this assessment based on the report from the
paramedics that Plaintiff's car had moved the telephone
pole, and that he had a positive seat belt sign. (Manuguerra
Depo., Doc. 45, at 32). A positive seatbelt sign is
“redness from the shoulder that goes across down to the
chest and the abdomen where your seat belt comes from.”
Id.; see also id.at 100. Mr. Manuguerra
explained that a seat belt sign can be concerning for
internal injuries. Id. at 100-01. He could not
recall whether such a mark extended over Plaintiff's
abdomen. Id. at 32-33. Dr. Tupa testified he would
expect a nurse to document if such a mark extended over the
abdomen. (Tupa Depo., Doc. 43, at 98-99).
hospital notes indicate “Pt not refusing to answer any
questions”. (Plaintiff's Ex. 1 to Manuguerra Depo.,
Doc. 45, at 50). Plaintiff answered questions about his date
of birth, social security number, and insurance. (Plaintiff
Depo., Doc. 44, at 49). Plaintiff cooperated with Mr.
Manuguerra to some degree, in terms of obtaining his vital
signs. (Manuguerra Depo., Doc. 45, at 48-49). Hospital notes
thereafter indicate Plaintiff refused to answer questions,
and repeatedly stated he would not consent to medical care.
(Plaintiff's Ex. 1 to Manuguerra Depo., Doc. 45, at
50-51). Notations of “in SPD custody” and
“Police custody” appear in the hospital notes.
(Exs. 2 & 4 to Tupa Depo., Doc. 43, at 46, 57.; Ex. 2 to
Manuguerra Depo., Doc. 45, at 57). Mr. Manuguerra testified
that he discussed with the police officers whether Plaintiff
was “in custody”, which he explained was relevant
because: “If they want to leave, if the police can be
there.” (Manuguerra Depo., Doc. 45, at 38). He also
testified that police custody does not bear on whether a
patient can decline to be treated. Id.
minutes after his arrival in the emergency room, Dr. Tupa
assessed Plaintiff. (Plaintiff's Ex. 1 to Manuguerra
Depo., Doc. 45, at 50). Three minutes later, Dr. Tupa called
a “Trauma Standby”. Id.; see
also Doc. 55-1, at 1 (Dr. Tupa Affidavit). He did so due
to the fact that Plaintiff had been in a motor vehicle
accident. (Tupa Affidavit, Doc. 55-1, at 1). A trauma standby
includes a series of tests including urinalysis, blood work,
and radiology studies. Id. Plaintiff denied any
symptoms of head, neck, or back pain to Dr. Tupa. (Plaintiff
Depo., Doc. 44, at 40-41). Plaintiff testified he refused all
treatment because he “felt it was invasive and [he]
wasn't hurt”. Id. at 41. Dr. Tupa ordered
these tests to rule out “internal injuries to the head,
traumatic brain injury, again the cervical spine, chest,
abdomen, pelvis, the solid organs, the viscous organs,
splenic laceration, kidney laceration, liver laceration and
fractures.” (Tupa Depo., Doc. 43, at 20).
notes from Mr. Manuguerra show at some point Plaintiff became
uncooperative and belligerent, yelling and swearing at
hospital staff. Ex. 1 to Manuguerra Depo., Doc. 44, at 50-51;
see also Manuguerra Depo., Doc. 45, at 47-50.
Plaintiff disagreed with a security guard's statement
that he was “immediately belligerent”, stating he
later became hostile but “that was not the first thing
that happened.” (Plaintiff Depo., Doc. 44, at 49). Mr.
Manuguerra testified that he made such notations in the
record to document that Plaintiff was delaying care,
something he believed could be dangerous to Plaintiff.
(Manuguerra Depo., Doc. 45, at 44-45). These notations
reflect Plaintiff repeatedly stated he did not consent to
medical care. (Plaintiff's Ex. 1 to Manuguerra Depo.,
Doc. 45, at 50-51.
point, Plaintiff was told he could not refuse treatment
because he was in police custody.
Q Who told you that, by the way, if you remember today?
A They were in scrubs, and the police officers also - there
was at least one police officer that said that. And they said
that multiple times. They said, “You're in police
custody, you can't refuse.”
(Plaintiff's Deposition, Doc. 44, at 50).
Tupa ultimately determined Plaintiff was not competent to
refuse medical treatment. (Tupa Affidavit, Doc. 55-1, at 2).
Therefore, he believed he had implied consent to treat
Plaintiff for potentially life threatening injuries.
Id.; Tupa Depo. Doc. 43, at 67.
Tupa testified that he ordered the testing he did to rule out
life threatening injuries. (Tupa Depo., Doc. 43, at 20).
Based on Plaintiff's behavior, Dr. Tupa was partially
concerned about a traumatic brain injury. (Tupa Affidavit,
Doc. 55-1, at 2). Dr. Tupa observed Plaintiff was visibly
intoxicated, not behaving rationally, and was belligerent
with medical staff. Id.
at Dr. Tupa's direction, Plaintiff was sedated so that
medical tests could be performed. (Tupa Depo., Doc. 43, at
26); see also Manuguerra Depo., Doc. 45, at 54-55.
This was done “with the assistance of security and
Sandusky PD.” (Ex. 1 to Manuguerra Depo., Doc. 45, at
51). Before the CT scan was performed, Plaintiff became
agitated again and was re-medicated. Id. Plaintiff
was accompanied by Sandusky police and security to the
radiology department for his CT. Id.
abdominal CT scan showed Plaintiff had a “big distended
bladder”. (Manuguerra Depo., Doc. 45, at 60). According
to Mr. Manuguerra, Dr. Tupa was concerned about blood in the
bladder. Id.; Tupa Affidavit, Doc. 55-1, at 2.
Plaintiff testified he was never asked to provide a voluntary
urine sample at the hospital. (Plaintiff Depo., Doc. 44, at
58). Dr. Tupa originally ordered a urinalysis at 12:33 a.m.,
the catheterization was not performed until 2:30 a.m.
See Manuguerra Depo., Doc. 45, at 63. Mr. Manuguerra
testified that “[s]ometimes the doctors don't like
to put in a Foley cath if it isn't necessary at first
just because there's all this risk for infection.”
Id. at 53. Mr. Manuguerra also testified he
“remember[ed] Dr. Tupa being more adamant on the Foley
after he saw the CT scan of his distended bladder.”
Id. at 88. Plaintiff also testified Dr. Tupa
informed him he intended to catheterize Plaintiff and he told
Dr. Tupa he did not have permission to do so. Id. at
43-44. Dr. Tupa gave the order that a catheterization be
performed to obtain a urine specimen. (Tupa Affidavit, Doc.
55-1, at 2). Mr. Manuguerra performed the catheterization at
Dr. Tupa's order. (Tupa Affidavit, Doc. 55-1, at 2);
see also Manuguerra Depo., Doc. 45, at 61. Plaintiff
was heavily seDated: the time. (Manuguerra Depo., Doc. 45, at
86); see also Plaintiff's Depo., Doc. 44, at 42
(“I was out when I was catheterized, so I don't
have any recollection of . . . having the Foley catheter
inserted into my urethra.”). Dr. Tupa testified that
the purpose of the urinalysis is to ensure there is no blood
in the urine to rule out kidney or urethra laceration,
bladder or prostate injury, or pelvic fractures. (Tupa Depo.,
Doc. 43, at 29-30). He also explained “The urine drug
screen is important if it is completely negative and somebody
is acting strange or irrational. Then the concern would be
for a traumatic brain injury.” Id. at 30. Dr.
Tupa testified the catheterization was medically necessary to
evaluate his kidney, and the urine drug screen was important
to evaluate his mental status. Id. at 95.
Dumond testified he never instructed Dr. Tupa to catheterize
Plaintiff. (Dumond Depo., Doc. 47, at 35). Officer Peters
testified that he did not instruct medical staff to obtain
either blood or urine. (Peters Depo., Doc. 46, at 49).
Manuguerra testified that none of the officers ever
instructed him to obtain blood or urine from Plaintiff.
(Manuguerra Depo., Doc. 45, at 105). Dr. Tupa gave the order
for the blood draw. Id. at 106. Dr. Tupa also
asserts he ordered the catheterization and at no time did any
police officer direct such a procedure. (Tupa Affidavit, Doc.
55-1, at 2); see also Tupa Depo., Doc. 43, at 95-96.
Plaintiff testified he “believe[d] that there was a
communication between the police officer and Dr. Tupa just
prior to [his] being sedated the first time” . . . but
that he did not “know what was said, but [he] [knew]
that there was a communication between the two.”
(Plaintiff Depo., Doc. 44, at 9-10).
was ultimately discharged into police custody at 3:46 a.m.
(Ex. 1 to Manuguerra Depo., Doc. 45, at 55).
October 9, 2014, Officer Peters issued a subpoena to FRMC
requesting “[a]ny and all medical records for John Gold
. . . on September 27, 2014.” (Peters Depo., Doc. 46,
at 34). He testified that a subpoena was the standard method
by which Sandusky Police obtain medical records to be used in
a prosecution in OVI cases. Id. at 31. And, the use
of a subpoena was consistent with the training he had from
the Sandusky Police Department. Id. at 36.
October 17, 2014, Assistant Chief Frost issued a second
subpoena to FRMC requesting “[a]ny and all medical
records for John Gold . . . for September 26, including BA
results, and any attending physician or nurse's notes,
and pictures.” (Doc. 46, at 36). He did so at the
request of the city prosecutor, and did not know a prior
subpoena had been issued. (Frost Depo., Doc. 61-1, at 24).
is no official written policy in the Sandusky Police
Department regarding obtaining blood alcohol results or other
medical records via subpoena, but several officers testified
it was standard procedure. See Peters Depo. Doc. 46,
at 34; Asst. Chief Frost Depo. Doc. 61-1, at 27; Officer
Dumond Depo. Doc. 47, at 15-16; Chief Orzech Depo., Doc.
60-1, at 16, 21-23.
responded to both subpoenas. (Doc. 46, at 35, 37).
to Federal Civil Rule 56(c), summary judgment is appropriate
where there is “no genuine issue as to any material
fact” and “the moving party is entitled to
judgment as a matter of law.” When considering a motion
for summary judgment, the Court must draw all inferences from
the record in the light most favorable to the nonmoving
party. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). The Court is not
permitted to weigh the evidence or determine the truth of any
matter in dispute; rather, the Court determines only whether
the case contains sufficient evidence from which a jury could
reasonably find for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). The
moving party bears the burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). This burden
“may be discharged by ‘showing'-that is,
pointing out to the district court-that there is an absence
of evidence to support the nonmoving party's case.”
Id. Further, the nonmoving party ...