Mary Sallenger, as the Administrator of the Estate of ANDREW B. SALLENGER, deceased v. City of Springfield, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3769
MARY SALLENGER, as the
Administrator of the Estate of
ANDREW B. SALLENGER, deceased,
Plaintiff-Appellant,
v.
CITY OF SPRINGFIELD, ILLINOIS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 3:03-cv-03093—Jeanne E. Scott, Judge.
ARGUED FEBRUARY 9, 2010—DECIDED DECEMBER 17, 2010
Before POSNER, ROVNER, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Andrew Sallenger, 35, suffered
from bipolar disorder and schizophrenia, and in the
early-morning hours on April 30, 2002, he experienced
a psychotic episode while staying at his mother’s house
in Springfield, Illinois. A family member called 911 and
reported that he was screaming and “running around the

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2 No. 08-3769
house naked” in an agitated and uncontrollable
state. Three Springfield police officers responded to
the scene, and a violent struggle ensued. The officers
eventually subdued Sallenger and restrained him in a
“hobble”—essentially a cord that is looped around a
suspect’s lower legs and then connected to a strap that
is attached to handcuffs. A few minutes after he was
hobbled, Sallenger stopped breathing. The officers re-
moved the hobble, attempted CPR, and called for an
ambulance, but Sallenger never regained consciousness.
He was later pronounced dead at the hospital.
Sallenger’s estate brought several state and federal
claims against the three officers and the City of Spring-
field, but only two are relevant on this appeal: (1) a
claim against the officers for inadequately responding
to Sallenger’s medical needs during the course of the
arrest, in violation of the Fourth Amendment and made
actionable under 42 U.S.C. § 1983; and (2) a claim against
the City under Monell v. Department of Social Services,
436 U.S. 658 (1978), for failure to train the officers in
how to use hobbles. The district court entered summary
judgment for the defendants on both claims. The
Estate contends this was error. It was not. The record
is clear that the officers began CPR and called
paramedics as soon as they realized Sallenger was not
breathing, and this satisfies the Fourth Amendment’s
reasonableness standard. As for the Monell claim
against the City, it is linked to the Estate’s excessive-
force claim against the officers for improper use of the
hobble. That claim was tried to a jury after qualified
immunity was denied, and a no-liability verdict was

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No. 08-3769 3
rendered for the officers. Because the officers did not
violate Sallenger’s Fourth Amendment rights by the way
in which they used the hobble, the City itself cannot be
liable under Monell for failure to properly train them in
the use of the device.
I. Background
This case is before this court for a second time. Our
first decision, Sallenger v. Oakes, 473 F.3d 731 (7th Cir.
2007), affirmed the district court’s denial of the officers’
motion for summary judgment based on qualified immu-
nity. That decision contains a full factual account of the
case; we will review here only those facts pertinent to
this appeal. On April 30, 2002, Andrew Sallenger was
staying with his mother, Mary Sallenger, at her home
in Springfield. Kim Nolan, Sallenger’s sister, was also
staying at the home, together with her four children.
Sallenger was a schizophrenic and also suffered
from bipolar manic depression, and he experienced a
psychotic episode in the early-morning hours on April 30.
Nolan called 911 at 1:49 a.m. and told the dispatcher
that her brother had woken everyone up screaming and
“breaking all kinds of stuff.” She said he was “very psy-
chotic” and was “running around the house naked in
front of the kids and everything.” She also told the dis-
patcher that responding officers would “need a lot of
backup because he is out there bad and he’s very strong.”
Three Springfield police officers were dispatched to
the scene.
Sergeant James Zimmerman, Officer Brian Oakes, and
Officer Jason Oliver arrived shortly after 2 a.m., and

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4 No. 08-3769
Nolan quickly informed them of Sallenger’s condition.
The officers entered the house and found Sallenger in a
bedroom, in the physical and mental state Nolan had
described. The officers approached to try to subdue
and arrest him, and a violent struggle took place.
Sallenger was, as Nolan had suggested, very strong; at
6 feet tall and 262 pounds, he was also a very large man.
The officers used pepper spray, physical blows, and
pressure-point techniques in response to Sallenger’s
strenuous resistance. They eventually managed
to handcuff Sallenger, and then restrained him in the
hobble. After Sallenger was hobbled, Sergeant Zim-
merman emerged from the bedroom to wash pepper-
spray residue from his eyes. According to Nolan’s
version of events, a few minutes later she heard her
brother scream three times. She went into the bedroom,
saw that he was not breathing, and yelled, “you killed
my brother.” The officers’ version is a little different,
but all parties agree that within minutes of being
hobbled, Sallenger stopped breathing. When the officers
realized this, they removed the hobble, started CPR, and
called for paramedics.
At the time of the incident, the City permitted officers
to use hobbles in cases in which a suspect in custody
is displaying or has indicated signs of a hostile and com-
bative nature. But the City did not specifically train its
officers in how to use them. The hobble used on
Sallenger was not issued by the City; rather, Officer
Oakes purchased it from a retail website. Oakes had
read the instructions that came with the hobble and had
seen other officers use them. Zimmerman testified that

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No. 08-3769 5
he was aware that restraining a suspect in a hobble
could cause positional asphyxiation if the suspect
was not turned on his side.
The main point of contention in this appeal is not
the officers’ use of the hobble (more on that in a mo-
ment) but whether the officers responded appropriately
once they realized that Sallenger was not breathing.
Springfield Police Lieutenant Mark Bridges arrived on
the scene within minutes of the hobbling, and the
three officers testified that it was at this point—just after
Bridges arrived—that they realized Sallenger was not
breathing. All four officers— Zimmerman, Oakes, Oliver,
and Bridges—testified that they immediately removed
the hobble, began CPR, and summoned an ambulance.
Nolan’s testimony also supports this account.
The Estate contends, however, that there was a seven-
minute lag between the time the officers realized
Sallenger was unconscious and the time they began to
administer medical aid. As support for this contention,
the Estate relies on a transcript from the recording of
the calls made on the police radio during the course of
this incident. The transcript reflects that at 2:15 a.m.
a radio call was made from an unidentified officer
who said, “white male, late 30’s [sic], unconscious, unre-
sponsive.” It also reflects a radio call from Lieutenant
Bridges reporting, “I’m out at the scene.” This call is
logged at 2:22 a.m. The Estate infers from the timing of
these radio calls that the officers on the scene realized
Sallenger was unconscious at 2:15 a.m.—seven minutes
before Lieutenant Bridges arrived—but did nothing.

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6 No. 08-3769
Lieutenant Bridges testified, however, that it would be
wrong to equate the logged time of his radio call to the
actual moment he arrived at the scene. Events were
chaotic and moving rapidly, and when he arrived, his
attention was focused on assisting the officers at the
scene; the time of his radio call reflects only the point in
time at which he paused to call in his arrival to the dis-
patcher. The call log also reflects that an ambulance was
summoned at 2:23 a.m. Paramedics arrived at 2:29 a.m., but
were unable to resuscitate Sallenger. He was transported
to the hospital, where he spent 24 hours on life support
and was pronounced dead the next day, May 1, 2002.
The Estate filed this action against the City of
Springfield and the officers alleging federal constitu-
tional violations and several state-law claims. As is rele-
vant here, the district court entered summary judgment
on two of the federal claims: (1) a § 1983 claim against
the officers for failing to adequately respond to the
medical needs of a prisoner, in violation of the Fourth
Amendment; and (2) a Monell claim against the City for
failure to train its officers in the use of the hobble. Not
directly at issue on this appeal but relevant nonetheless
is the Estate’s excessive-force claim against the
officers, which focused primarily on their use of the
hobble. The district court denied the officers’ motion for
summary judgment on that claim, finding they were
not entitled to qualified immunity. The officers appealed
from this interlocutory order denying qualified immunity,
and we upheld the district court’s decision. See Sallenger,
473 F.3d at 742. That claim (among others) was then tried
to a jury, and Sergeant Zimmerman and Officer Oakes

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No. 08-3769 7
were found not liable. The jury was unable to reach a
verdict on the claim against Officer Oliver. But after a
retrial, he too was found not liable. The Estate does not
contest the jury verdicts on appeal; instead, it chal-
lenges only the district court’s entry of summary
judgment on the medical-care claim against the officers
and the Monell claim against the City.
II. Discussion
We review a district court’s grant of summary
judgment de novo and view all facts and reasonable
inferences in favor of the nonmoving party. King v. E. St.
Louis Sch. Dist. 189, 496 F.3d 812, 816 (7th Cir. 2007).
Summary judgment is appropriate “if the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(c)(2). In reviewing
the district court’s decision to grant summary judgment,
we “consider only those matters that were before the
district court when it entered the judgment,” not the
evidence offered later at trial. Hildebrandt v. Ill. Dep’t
of Natural Res., 347 F.3d 1014, 1024 (7th Cir. 2003) (quota-
tion marks omitted).
A. The Officers’ Alleged Failure to Provide Medical Care
The Estate claimed that Officers Zimmerman, Oakes,
and Oliver failed to adequately respond when Sallenger
stopped breathing after being hobbled. The Fourth Amend-

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8 No. 08-3769
ment’s objective reasonableness standard applies; the
Estate’s claim pertains to the medical needs of a person
under arrest who has not yet had a judicial determina-
tion of probable cause. Williams v. Rodriguez, 509 F.3d
392, 403 (7th Cir. 2007); see also Sides v. City of Champaign,
496 F.3d 820, 828 (7th Cir. 2007) (“The governing
standard at the time of arrest [for medical-care
claims] is the Fourth Amendment’s ban on unreasonable
seizures.”); Lopez v. City of Chicago, 464 F.3d 711, 718-19
(7th Cir. 2006). Generally speaking, four criteria are
examined to determine whether officers responded rea-
sonably to a detainee’s need for medical care: (1) the
officer’s notice of the detainee’s need for medical atten-
tion; (2) the seriousness of the need; (3) the nature or
scope of the required treatment; and (4) any counter-
vailing police interests, e.g., the need to prevent the
destruction of evidence, or other similar law-enforce-
ment interest. Williams, 509 F.3d at 403.
It is undisputed that Sallenger stopped breathing
within a few minutes of being hobbled; the focus here is
on the reasonableness of the officers’ response once they
realized he was unconscious. The Estate argues that the
record supports an inference of a seven-minute gap
between the time the officers realized Sallenger was
unconscious and the time they began to administer
CPR and summon paramedics. This seven-minute lag, the
Estate contends, was unreasonably long given the life-
threatening nature of Sallenger’s medical need. At sum-
mary judgment we draw all inferences from the evidence
in the Estate’s favor, but those inferences must be both
reasonable and find support in the record. See Singer v.
Raemisch, 593 F.3d 529, 533 (7th Cir. 2010). The record

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No. 08-3769 9
does not reasonably support the inference that the
officers waited seven minutes before rendering aid.
As we have noted, the Estate’s argument rests on the
timing of two calls from the scene that appear in the
transcript of the police-radio tape recording. As these
events were rapidly unfolding, an unidentified officer
radioed the following information to the dispatcher at
2:15 a.m.: “[w]hite male, late 30’s [sic], unconscious,
unresponsive.” At 2:22 a.m. Lieutenant Bridges radioed
that he was “out at the scene.” The Estate suggest that
these two calls permits an inference that the officers
waited seven minutes before beginning to administer
medical care. We disagree.
Without something more, these two calls do not
support a reasonable inference that the officers did abso-
lutely nothing for seven minutes after realizing Sal-
lenger was not breathing. And there is nothing in the
record to supply the “something more” that is necessary
to make such an inference reasonable. To the contrary,
all three officers and Sallenger’s sister, Kim Nolan—the
primary witness for the Estate—testified consistently
that as soon as the officers realized Sallenger was uncon-
scious, they removed the hobble, began CPR, and sum-
moned an ambulance. This took place immediately
after Lieutenant Bridges arrived at the scene. Lieutenant
Bridges corroborated this account. He also testified that
it would be incorrect to interpret the call log as pin-
pointing the precise time of his arrival; it established
only that at 2:22 a.m. he radioed the dispatcher to
report that he had arrived. The log also reflects that
paramedics were summoned just one minute later, at

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10 No. 08-3769
2:23 a.m. Accordingly, all the witnesses agree that the
officers administered medical care very soon, if not im-
mediately, after realizing that Sallenger was not
breathing; the call log is insufficient to undermine this
testimonial unanimity.
The Fourth Amendment requires reasonableness, not
immediacy. Everyone agrees that the officers endured a
tense and dangerous physical ordeal to subdue and
restrain Sallenger, a very large man who was actively
psychotic. Events unfolded rapidly: The officers ar-
rived at the home just after 2 a.m., a violent struggle
ensued, Sallenger was brought under control and
stopped breathing some minutes later, and at 2:23 a.m.
paramedics were summoned. On this record, the district
court was right to conclude that the evidence does not
support the Estate’s claim that the officers’ response to
Sallenger’s medical needs was unreasonable. Accordingly,
summary judgment was properly entered in favor of
the officers on the Fourth Amendment medical-care claim.
B. Monell Claim Based on Failure to Train
In City of Canton v. Harris, 489 U.S. 378, 387 (1989), the
Supreme Court held that in limited circumstances a
municipality may be held liable under § 1983 for con-
stitutional violations resulting from a failure to properly
train police officers. The Estate’s failure-to-train claim
is premised mainly on the fact that the City permitted
its officers to use hobbles but did not train them in the
proper use of this device. But a municipality cannot be
liable under Monell when there is no underlying con-
stitutional violation by a municipal employee. See, e.g.,

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No. 08-3769 11
King, 496 F.3d at 817; Jenkins v. Bartlett, 487 F.3d 482,
492 (7th Cir. 2007).
Two alleged constitutional violations might have
formed the basis for Monell liability: (1) the claim that the
officers used excessive force against Sallenger, resulting
primarily from their alleged misuse of the hobble; and
(2) the claim that the officers inadequately responded to
his medical needs during the arrest. But all three officers
were cleared of any constitutional wrongdoing on the
excessive-force claim following jury trials; the Estate
does not challenge these verdicts on appeal. It is true as
a general matter that we review the district court’s entry
of summary judgment on the Monell claim by reference
to the evidentiary record made on summary judgment,
not at trial. Hildebrandt, 347 F.3d at 1024. But the jury
verdicts are now the law of this case, and they con-
clusively establish that no excessive force occurred.
See Teague v. Mayo, 553 F.3d 1068, 1072-73 (7th Cir.
2009). Nor can the medical-care claim against the officers
provide an alternative basis for Monell municipal lia-
bility. For reasons we have already explained, the offi-
cers’ conduct did not violate the Fourth Amendment. Ac-
cordingly, because there is no underlying constitu-
tional violation, the City cannot be liable under Monell.
See Jenkins, 487 F.3d at 492 (“The jury found that Mr.
Jenkins’ constitutional rights were not violated . . . , thus
the City cannot be held liable for any failure to train.”).
AFFIRMED.
12-17-10

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