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Gold v. City of Sandusky

United States District Court, N.D. Ohio, Western Division

March 26, 2018

JOHN W. GOLD, Plaintiff,
CITY OF SANDUSKY, et al., Defendants.


          James R. Knepp II United States Magistrate Judge


         On 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. 1).[1] 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.


         This 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)[2]. 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).

         The 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.

         Officers 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).

         At the Hospital

         Paramedics 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. 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.

         The 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 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).

         Initial 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.

         Five 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).

         Hospital 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.

         At some 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).

         Dr. 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.

         Dr. 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.

         Ultimately, 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.

         The 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.

         Officer 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).

         Plaintiff was ultimately discharged into police custody at 3:46 a.m. (Ex. 1 to Manuguerra Depo., Doc. 45, at 55).

         Request for Records

         On 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.

         On 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).

         There 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.

         FRMC responded to both subpoenas. (Doc. 46, at 35, 37).

         Standard of Review

         Pursuant 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 ...

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