Alexander, Darrick A v. Perrenoud, James , 134 F. App'x 938 ( 2005 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 26, 2005*
Decided April 29, 2005
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 04-3846
DARRICK A. ALEXANDER, Appeal from the United States
Plaintiff-Appellant, District Court for the Western
District of Wisconsin
v.
No. 03-C-0578-C
JAMES PERRENOUD,
Defendant-Appellee. Barbara B. Crabb,
Chief Judge.
ORDER
State prisoner Darrick Alexander brought suit under 42 U.S.C. §1983claiming that James Perrenoud, a correctional officer at the Stanley Correctional
Institution, acted with deliberate indifference when he backed a state van in which
Alexander was a passenger into another vehicle. The district court granted
summary judgment to Perrenoud on the ground that an accidental collision cannot
support a substantive due process claim. We affirm.
______________________
*After examining the briefs and record, we conclude that oral argument is
unnecessary. Accordingly, this appeal is submitted on the briefs and record. See
Fed.R.App.P. 34(a)(2)
No. 04-3846 Page 2
The facts in this case are undisputed. In August 2003 Perrenoud drove
Alexander to the hospital in Madison, Wisconsin. On the way back to Stanley,
Perrenoud was caught in an intersection while attempting to make a left turn.
Instead of completing the turn on a red light, Perrenoud backed up and in so doing,
collided with the car behind him. Perrenoud spoke to that car’s driver, who agreed
that exchanging insurance information was unnecessary since no damage or injury
was evident. When they returned, Alexander complained that his back was injured
in the accident, and Perrenoud completed an incident report.
Alexander complained about Perrenoud’s “negligent” driving to the
department of corrections. According to the internal report prepared in response to
his complaint, Alexander had a long history of back problems, and the physician
who evaluated him two weeks later reported “no change” in Alexander’s condition.
His complaint was ultimately dismissed on the ground that personal injury claims
for money damages could not be redressed by the inmate complaint system, and his
request for review was also denied.
Alexander then filed suit in the district court claiming that the impact from
this collision caused him to suffer severe back pain, numbness in his neck, and
migraine headaches due to the “negligent operation of a vehicle.” The court
initially screened the complaint under 28 U.S.C. §1915A, dismissing claims that it
construed as arising under the fourth and eighth amendment (these rulings are not
challenged on appeal), but allowing Alexander to proceed on his substantive due
process claim—that Perrenoud deliberately backed the van into another car with
the intent to injure him. The court also exercised supplemental jurisdiction over
Alexander’s state law tort claim. Subsequently the court granted Perrenoud’s
motion for summary judgment, finding that Alexander lacked evidence that
Perrenoud acted with the intent to cause harm that is required to support a
constitutional claim. The district court also dismissed his tort claim for lack of
jurisdiction because he failed to file a notice of claim as required by Wis. Stat. §
893.82(3) for suits against state agents.
On appeal Alexander contends that the district court erred in dismissing his
complaint on the ground that he failed to submit evidence that Perrenoud acted
deliberately. According to Alexander, the court went beyond its duty to determine
whether there was a genuine issue for trial, and invaded the province of the jury in
ruling on Perrenoud’s intent, an issue traditionally reserved for trial.
Conduct that violates the fourteenth amendment’s guarantee of substantive
due process must be so arbitrary that it “shocks the conscience.” County of
Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998). Substantive due process is a
No. 04-3846 Page 3
“most amorphous” doctrine that is a “difficult concept to pin down,” Tun v.
Whitticker, 398 F.3d 899, 901 (7th Cir. 2005), and requires a context- specific
analysis. Lewis, 523 U.S. at 834. Where unforseen circumstances demand instant
judgments—where police pursue an offender in a high-speed chase, for
example—even deliberate indifference does not shock the conscience since decisions
made in such circumstances are not deliberate. Lewis, 523 U.S. at 851-53; see also
Bublitz v. Cottey, 327 F.3d 485, 491 (7th Cir. 2003). Where instant judgment is
required, only deliberate actions intended to harm another shock the conscience.
Lewis, 523 U.S. at 836; Bublitz, 327 F.3d at 491; Hill v. Shobe, 93 F.3d 418, 421
(7th Cir. 1996).
Perrenoud’s actions here were not conscience-shocking because they were not
deliberate. He faced unforseen circumstances that required a quick judgment about
the best way to move the van away from oncoming traffic. He may have been
negligent in backing into the other car, but there is no evidence he deliberately
caused the accident. On appeal Alexander fails to show how the district court
overlooked evidence that Perrenoud acted deliberately or otherwise erred in finding
that he failed to present evidence of a substantive due process violation. We
therefore agree with the district court that summary judgment was appropriate.
Alexander also contends on appeal that he was not required to give notice of
his intent to sue a state agent because he sued Perrenoud in his personal capacity.
But a claimant in any civil action against a state officer, employee, or agent “on
account of any act growing out of or committed in the course of the discharge of the
officer’s . . . duties” is required to file written notice of suit within 120 days of the
alleged injury. Wis. Stat. § 893.82(3); see Riccitelli v. Broekhuizen, 227 Wis. 2d
100, 116, (Wis. 1999); Salvidar v. Cadena, 622 F.Supp. 949, 959 (W.D. Wis. 1985).
Perrenoud failed to comply with the statute by not providing the attorney general
with notice of his suit, thus ignoring a requirement that is strictly enforced
regardless of whether suit is brought against a defendant in his personal capacity.
The district court therefore was also correct in dismissing Alexander’s state law tort
claim.
AFFIRMED.