#### José O. GARCÍA, Plaintiff, Appellant, v. CITY OF BOSTON, John Doe, John Doe, II, Boston Emergency Service Team, and New England Medical Center Hospitals, Inc., Defendants, Appellees.

No. 00-2369.

United States Court of Appeals, First Circuit.

Heard May 2, 2001.

Decided June 12, 2001.

*148William E. Gately, Jr., on brief, for appellant.

William J. Donahue, Assistant Corporation Counsel, with whom Merita A. Hopkins, Corporation Counsel, were on brief, for appellee City of Boston.

Alan B. Rindler, with whom Rindler Morgar, P.C. and Nadine Nasser Donovan, were on brief, for appellees Boston Emergency Services Team and New England Medical Center Hospitals, Inc.

Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge, and BOWNES, Senior Circuit Judge.

PER CURIAM.

Appellant José O. García appeals a decision granting summary judgment in favor of appellees City of Boston (“City”), Boston Emergency Services Team (“BEST”), and New England Medical Center Hospitals, Inc. (“NEMC”). We affirm.

On August 19, 1994, Garcia was arrested by the Boston Police Department (“BPD”) after he was involved in a domestic disturbance. He was charged with violating Mass. Gen. Laws ch. 209A (threats of violence under Massachusetts Domestic Violence Law) and Mass. Gen. Laws ch. 265, § 13D (assault and battery upon police officers).1 The BPD took him to the station, where he was booked and placed in a cell. Because Garcia was arrested on a Friday night, he would not be arraigned until Monday morning.

That evening, Garcia, in an apparent suicide attempt, made some superficial cuts to his wrist with the aluminum top of a juice container. An ambulance was called, but it was determined that Garcia did not want nor need further medical treatment. He was then placed on the suicide list and handcuffed to the “suicide wall,”2 located in the booking area.

On Saturday evening, still handcuffed to the suicide wall, Garcia somehow obtained matches and lit himself on fire. He was taken to Boston City Hospital (“BCH”) *149where he received treatment for first and second degree burns. While at BCH, a resident psychiatrist evaluated García, and concluded that he was a suicide risk. Steps were taken to facilitate an inpatient admission to an area hospital. Because BCH did not have inpatient facilities, BEST3 was contacted in order to locate an appropriate facility for García. Garcia was uninsured, and therefore ineligible for admission into a private facility. His only option, then, was a Department of Mental Health (“DMH”) center.

Accordingly, DMH Adjudicator Jim Gal-vin was contacted about admitting Garcia to a facility. Galvin took the position that because Garcia was under arrest and not yet arraigned, it would violate a DMH policy to admit him. In order to obtain admission, Garcia had to either be arraigned or have the charges against him dropped. There was no judge available to arraign Garcia. In addition, the BPD refused to drop the charges against Garcia because of their severity. After an unsuccessful attempt by the BPD to persuade BCH to allow Garcia to stay, under police guard, until his Monday morning arraignment, Garcia was returned to the station and handcuffed to the suicide wall.

Upon his return to the station, Garcia again obtained some matches and lit his shirt on fire. The fire was quickly extinguished without injury. Shortly thereafter, Officer William Cullinane distributed lunches to the prisoners locked to the suicide wall. Somehow, Garcia was able to remove Officer Cullinane’s gun from his holster and began filing the weapon. Officer Cullinane and another prisoner on the suicide wall were shot by Garcia before Officer Stephen Fahey shot Garcia in the arm, causing Garcia to drop Officer Culli-nane’s weapon.

Garcia subsequently brought this suit against the City, alleging violations of his constitutional rights under 42 U.S.C. § 1983 and the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 111. He later amended his complaint to include claims of negligence and breach of contract against BEST and the NEMC. The City, and BEST and NEMC collectively, moved for summary judgment, which the district court granted as to all claims. *Garcia v. City of Boston,*115 F.Supp.2d 74 (D.Mass.2000) (Mem. and Order).

Ruling on the City’s motion, the district court held the following. As to Garcia’s excessive and unreasonable force claim, Garcia failed to fulfill any of the requirements of the four-part test that the district court applied. *See Johnson v. Glick,*481 F.2d 1028, 1033 (2d Cir.1973), *rejected on other grounds, Graham v. Connor,*490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, the district court held that there was “a clear need for the use of force” when Officer Fahey shot Garcia in the arm, namely because Garcia was firing a gun and had already shot an officer and a fellow prisoner. *Garcia,*115 F.Supp.2d at 81. In addition, that force was proportionate to the need, and, considering the circumstances, Garcia’s injury was relatively minor. *Id.*Finally, “there [wa]s absolutely no evidence” of bad faith on the part of Officer Fahey or that his actions were taken “maliciously or sadistically for the very purpose of inflicting harm.” *Id.*

Even construing the material facts in the light most favorable to García, *Campbell v. Wash. County Technical Coll.,*219 *150F.3d 3, 5 (1st Cir.2000), we can perceive no construction of the evidence that could sustain this claim. Without commenting on the appropriate test to be employed when evaluating an excessive and unreasonable force claim in these circumstances,4 we affirm the holding of the district court on this issue.

As to Garcia’s denial of medical and psychological care charge, the district court first identified a “duty to attend to a prisoner’s ‘serious medical needs.’ ” *Garcia,*115 F.Supp.2d at 82 (quoting *Estelle v. Gamble,*429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). The court found that Garcia’s psychological problems constituted serious medical needs. *Id.*Garcia, however, did not demonstrate that his failure to receive inpatient treatment was the result of “an unconstitutional custom or policy.” *Id.*at 83. The BPD did have a policy for handling suicidal prisoners like Garcia. It was Garcia’s unusual situation, of being uninsured and pre-arraignment, coupled with the DMH’s policy of refusing to admit psychiatric patients who had not been arraigned, that resulted in Garcia not being placed in a facility. “Deliberate indifference” to Garcia’s medical needs played no role in this incident. *Id.*at 82-83 (quoting *Estelle,*429 U.S. at 104, 97 S.Ct. 285). Thus, Garcia’s § 1983 claim necessarily failed. *Id.*at 84.

We agree with the district court’s reasoning and conclusion and affirm on that basis. We also affirm the district court’s holding that Garcia’s failure to establish a § 1983 claim essentially equates to a failure to establish a claim under the Massachusetts Civil Rights Act. *Id.*

The district court also held that Garcia’s negligence and contract claims against BEST and NEMC could not be sustained. *Id.*at 77. Garcia alleged two theories under negligence: medical malpractice and administrative negligence. The district court found that a medical malpractice claim was not viable, because Garcia could not demonstrate, as required by Massachusetts medical malpractice law, that a physician-patient relationship between García and either BEST or NEMC existed. *Id.*at 78. We agree. The administrative negligence claim is even weaker, and we affirm the district court’s conclusion that neither BEST nor NEMC was negligent. *Id.*at 79.

Citing its prior holding that the DMH policy was the cause of Garcia not being admitted to an inpatient facility, the district court concluded that BEST and NEMC fulfilled the terms of their services contract. As such, Garcia’s contract claim failed. *Id.*at 80. Again, we agree with the district court in this regard.

Having upheld the holdings of the district court in all respects, we affirm the granting of summary judgment and dismissal of this complaint.

1

. In addition to the new charges, Garcia had an outstanding default warrant issued against him.

2

. The "suicide wall" was a bar in the booking area to which prisoners who were identified as suicide risks were handcuffed in order to more closely monitor them.

3

. BEST is a program of the NEMC’s Department of Psychiatry. Its stated function is to "provide timely, quantitative assessment and disposition for individuals in the Boston Area who require emergency psychiatric services.”

4

. In declining to comment, we note only that neither the Supreme Court nor this circuit have established a test for this factual scenario. *Compare Johnson,*481 F.2d at 1033 (test used above), *with Bell v. Wolfish,*441 U.S. 520, 535-37, 99 S.Ct 1861, 60 L.Ed.2d 447 (1979) (evaluating conditions of pre-trial detention), *and Evans v. Avery,*100 F.3d 1033, 1038 (1st Cir.1996) (high speed police pursuits).