United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 95-3870

___________ Thomas E. Freeman, * * Appellant, * * v. * * Appeal from the United States Fred Jackson, Warden; John * District Court for the Roccaforte, Lt.; Robert Bryant, * District of Nebraska. Lt.; John Hubbard; Charles Kelly,* Capt.; Doug Squires, Sgt.; Jeff * [UNPUBLISHED] Lickci; Ronnie Welch; Charles * Herdon; Michael Hoch; John * Swanson, * * Appellees. *

___________ Submitted: February 6, 1997 Filed: February 14, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.
Thomas F. Freeman, a Nebraska inmate, filed a 42 U.S.C. § 19 83 act ion against two police officers and numerous employees of th e Douglas County Correctional Center, claiming that they viola ted his
con stitutional rights by executing a state court order to obtai n blood and saliva samples which was not supported by probable cause; subjecting him to excessive fo rce; and refusing to show him a copy of the order, or allow him to speak with his attorney. Freema n cl aimed that instead of forcibly drawing his blood, defendant s should have pursued the explicit contempt penalty provided in theThe Honorable Thomas D. Thalken, United States Magistrate

Judge for the District of Nebraska, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C. § 636(c). 

## -3- order. The district court granted defendants' motions for summary 1 judgment based on qualified immunity. After de novo review, w e affirm. See Demming v. Housin g and Redev. Auth. , 66 F.3d 950, 953 (8th Cir. 1995) (standard of review).
Freeman did not have a right t o consult with counsel prior to giving the sample, see Schmerb er v. California , 384 U.S. 757, 765- 66 (1966) (blood test, which entails virtually no risks, tra uma, or pain for most people, does not involve right to counsel); Sout h Dakota v. Neville , 459 U.S. 553, 559 n.8 (1983) ( Schmerber r ejected arg uments that coerced blood tests violated right to counsel an d th e prohibition against unreasonable searches and seizures), an d did not rebut defendants' evidence that he had access to hi s attorney during the subsequent five days he spent in lockdown.

We agree with the district court that defendants ' inter pretation of the order--as allowing them to physicall y rest rain Freeman to obtain a blood sample--was reasonable, thu s ent itling them to qualified immunity. The order authorized "an y detention which may be necessa ry." Cf. McCurry v. Tesch , 824 F.2d 638, 642 (8th Cir. 1987) (offi cers protected by qualified immunity for carrying praying church go ers out of church on Monday morning; acti on was result of reasonable interpretation of two cour t orders). Freeman's argument that defendants' only recourse for his failure to voluntarily comply with the order was criminal contempt is meritless.

As a pretrial detainee, Freeman's excessive-force claim i s pro perlyanalyzed under the due process clause of the Fourteent h Amendment. See Graham v. Conner , 490 U.S. 386, 395 & n.10 (1989) (due process clause protects pretrial detainee from force am ounting

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to punishment). We agree with the district court's determination that Freeman's due process rights were not violated: defendant s acted in good faith reliance on a court order, and the force used
was reasonable and did not exceed the force necessary give n defe ndants' unrebutted evidence that Freeman poured soap on hi s cell floor to make it slippery, put up a struggle, previousl y thwarted an attempt to take blood by slitting his wrists, an d refused to cooperate. Cf. Burton v. Livingston , 791 F.2d 97, 100 (8th Cir. 1986) (due process clause inquiry includes determi nations of whether officers acted in good faith or maliciously an d sadistically, and whether force used exceeded force needed).
Finally, we conclude the police officers reasonably believed the order authorizing them to obtain the sample was supported b y probable cause: the supporting affidavit indicated that Free man fit the description of a man suspected in fourteen sexual and at tempted sexual assaults, that Freeman owned a car matching the description of the suspect's car, that he had been identified in a lineup a s the perpetrator of one of the assaults, that his fingerprints had been discovered at the scene of one of the attempted assault s, that all of the attempts and assaults shared a common modus operandi , and that, as part of his job, he had prior contact with one of the vi ctims. See Thompson v. Reuting , 968 F.2d 756, 760 (8th Cir

. 1992) (police officers entitled to qualified immunity in § 198 3
case if they had objectively reasonable belief affidavi t established probable cause); cf. United States v. Martin , 28 F.3d 742, 744 (8th Cir. 1994) (probable cause found for arrest warrant whe re suspect matched description given by victim, and owned va n seen near crime scene).
Accordingly, we affirm.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.