UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JORGE MELENDEZ, as personal

representative of the estate of Jose

Ines Melendez; MARIA MARTINEZ,

individually and as parent and next

friend of Christian Martinez

Melendez, Steffany Melendez and

Brian Melendez,

Plaintiffs-Appellants,

v.

HOWARD COUNTY GOVERNMENT;

DANIEL G. MERSON; ALPHONSO F.

CONNER,

Defendants-Appellees,

and

No. 96-2709

JERRY PRICE, Police Officer, in both

his official and individual

capacities; VICTOR RIEMER, Howard

County Police Officer, in both his

official and individual capacities;

DAVID SHAMAKER, Howard County

Police Officer, in both his official

and individual capacities; MICHAEL

VICHICH, Howard County Police

Officer, in both his official and

individual capacities; UNKNOWN

HOWARD COUNTY EMERGENCY

MEDICAL PERSONNEL; AIMEE C.

GREENBERG,

Defendants.
JORGE MELENDEZ, as personal

representative of the estate of Jose

Ines Melendez; MARIA MARTINEZ,

individually and as parent and next

friend of Christian Martinez

Melendez, Steffany Melendez and

Brian Melendez,

Plaintiffs-Appellants,

v.

HOWARD COUNTY GOVERNMENT;

DANIEL G. MERSON; ALPHONSO F.

CONNER,

Defendants-Appellees,

and

No. 97-1062

JERRY PRICE, Police Officer, in both

his official and individual

capacities; VICTOR RIEMER, Howard

County Police Officer, in both his

official and individual capacities;

DAVID SHAMAKER, Howard County

Police Officer, in both his official

and individual capacities; MICHAEL

VICHICH, Howard County Police

Officer, in both his official and

individual capacities; UNKNOWN

HOWARD COUNTY EMERGENCY

MEDICAL PERSONNEL; AIMEE C.

GREENBERG,

Defendants.

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-94-3550-MJG)

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Argued: June 6, 1997

Decided: August 18, 1997

Before HALL and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Thomas Bennett Morrison, TRAPENI, ROMERO &

MORRISON, P.C., Fairfax, Virginia, for Appellants. Rebecca A.

Laws, Senior Assistant County Solicitor, Ellicott City, Maryland, for

Appellees. ON BRIEF: Barbara M. Cook, Howard County Solicitor,

Ellicott City, Maryland, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The Melendez family sued Howard County, Maryland, and several

of its emergency response personnel for the wrongful death of Jose

Melendez, who died while in the County's custody during transport

to a hospital. The family brought their action under 42 U.S.C. § 1983

for deliberate indifference to Jose Melendez's medical needs and

under Maryland common law for gross negligence, in accordance

with the partial immunity Maryland law affords to emergency medical care providers. See Md. Code Ann., Cts. & Jud. Proc. § 5-309.

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The district court entered summary judgment in favor of the defendants, and we affirm.

I

On Christmas Eve of 1993, Jose Melendez, who was attending a

family gathering at the house of relatives in Elkridge, Maryland,

drank a large quantity of alcohol and became intoxicated. When he

indicated an intent to drive home in his state of intoxication, a dispute

erupted between Melendez and his relatives, in the course of which

Melendez tossed aside his 18-month old son Brian, injuring him.

Because of Melendez's violent behavior, a relative called the police,

who arrived shortly thereafter.

Melendez yelled profanities at the police and resisted their attempts

to arrest him. Four officers eventually subdued Melendez, but in the

course of the struggle, they heard his elbow pop. Although Melendez

denied any need for medical attention, the officers decided to have

him evaluated at a nearby hospital. Believing that Melendez was too

violent to be transported to the hospital in an ordinary police car, the

police decided that their options included obtaining the police "prisoner van" or transporting Melendez by ambulance with the use of

restraints. An ambulance had already been called for the injuries to

Brian, and police asked the ambulance staff whether they had a canvas full-body restraint device known locally as the"blue monster." A

second ambulance arrived which had such a restraint.

By the time that the second ambulance arrived, personnel on the

scene included Sgt. Daniel Merson of Howard County Fire and Rescue, a certified EMT-P (advanced life support skills), who arrived

independent of the ambulances; Elkridge Volunteer Fire Department

ambulance driver Aimee Greenberg; and Alphonso Conner, EMT-A,

the emergency technician staffing the ambulance. Greenberg produced the blue monster, a large canvas tarp to which several straps

were affixed, and several police officers as well as EMT Conner

secured Melendez for transportation to the hospital.

Melendez was placed face down on a standard stretcher with his

arms outstretched above his head. The canvas restraint was then

placed over him and the straps affixed so that Melendez was sand-

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wiched between the canvas and the stretcher. The tarp extended over

the greater part of Melendez's body, reaching from his feet to the base

of his neck. The ambulance then departed for Howard County General Hospital with EMT Conner attending and police officer Victor

Riemer riding in the ambulance.

In the course of the ride, EMT Conner noticed that Melendez

ceased to struggle against the restraints, although Conner did not perceive this as a sign of distress. Because of the position of Melendez's

body, Conner could not see Melendez's face, nor could he easily

access normal locations for taking a pulse. He did, however, perform

a capillary refill test during the transport, pushing on Melendez's finger nail bed and watching as blood returned. He also felt the back of

Melendez's neck, which was warm and sweaty. Upon arrival at the

hospital 14 minutes later, however, it was discovered that Melendez

had stopped breathing during the transport, and attempts to revive him

were unsuccessful. The medical examiner determined the cause of

death to be positional and compression asphyxia complicating alcohol

intoxication.

The Melendez family sued Howard County and the various personnel involved, alleging that the blue monster was a dangerous device

and that the defendants should have known that it was dangerous and

could lead to injury. On their constitutional theory, they alleged that

the defendants' use of the blue monster was a policy and practice that

they knew or should have known could lead to serious injury or death.

Couching their claim under Estelle v. Gamble, 429 U.S. 97, 105

(1976), they contended that the defendants showed deliberate indifference to serious medical needs of Melendez. And relying on common

law they alleged that the use of the blue monster and failure to monitor Melendez's condition on the way to the hospital constituted gross

negligence.

On the defendants' motion for summary judgment, the district

court dismissed the case. It concluded that the affidavit of the expert

filed by the Melendez family to oppose summary judgment should not

be considered by the court because the plaintiffs failed to establish

that the affiant was an expert on pre-hospital emergency care. But

even considering the affidavit, the court ruled that the affidavit was

wholly conclusory, particularly as to the foreseeability of harm, and

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that the plaintiffs therefore failed as a matter of law to show gross

negligence. Similarly, on the § 1983 claims, the court observed that

the plaintiffs failed to present evidence that the defendants acted with

deliberate indifference to a serious medical need. On the contrary, the

court observed that the defendants were attempting to provide medical attention to Jose Melendez's arm, and no evidence was presented

to show that the defendants were aware that Melendez had any other

medical need.

The plaintiffs appealed the judgment only so far as it dismissed

Howard County, Sgt. Daniel Merson, and EMT Alphonso Conner.

II

The Melendez family contends on its § 1983 claims that the defendants were deliberately indifferent to the medical needs of Jose

Melendez in violation of the standard established in Estelle v.

Gamble, 429 U.S. 97, 105 (1976), an Eighth Amendment case. Without addressing the question of whether the Estelle standard is appropriate under a Fourteenth Amendment analysis and whether it extends

to the conduct of paramedics attending to an arrestee, we agree with

the district court that the record contains no evidence that the appellees were deliberately indifferent to a serious medical need. They

were, to the contrary, seeking to provide medical attention for

Melendez's arm when his death occurred. There is no evidence that

they were aware of any other medical need to which they were indifferent. And there is no contention that the medical condition of

Melendez's arm contributed to Melendez's death.

On the issue of gross negligence, we likewise find that the record

falls short of establishing a prima facie case. The plaintiffs' expert

failed to explain why harm to Melendez was or should have been

foreseeable to the Howard County personnel, and absent foreseeability, their actions cannot even have been negligent. Similarly, the

affidavit failed to establish that a failure to monitor Melendez during

transport was the proximate cause of his death. It was a respiratory

failure that caused Melendez's death, and the respiratory failure was

not caused by the failure to monitor. Absent the respiratory arrest, the

failure to monitor would have had no effect. At best, failure to monitor contributed to the failure to take action that might have saved

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Melendez's life. But considering the plaintiffs' affidavit on this point

we only have the statement that "[h]ad proper monitoring been done,

the EMTs would have known when the patient began to experience

difficulty breathing and when he suffered cardiac arrest." The record

contains no opinion that the defendants would have been able to save

Melendez's life. On the contrary, the only evidence in the record on

this question, supplied by the defendants, is the state medical examiner's opinion that under circumstances similar to those involving

Melendez, "resuscitation is not likely to be successful."

Under Maryland law, persons providing emergency medical care

enjoy immunity from negligence claims; a party must establish gross

negligence to recover. See Md. Code Ann., Cts. & Jud. Proc. § 5-309.

Gross negligence may be found where

there is no evidence of actual intent to injure or of actual

malice toward the injured person, but in which the defendant's conduct is of such an extraordinary (or outrageous)

character as possibly to be the legal equivalent of such

actual intent or actual malice, sometimes described as "wanton," "reckless disregard of the rights of others," and the

like.

Smith v. Gray Concrete Pipe Co., 297 A.2d 721, 730 (Md. 1972).

Stated otherwise, gross negligence requires "exacting proof of a wanton or reckless disregard for human life." United States v. Pardee, 368

F.2d 368, 374 (4th Cir. 1966). In proving gross negligence, the plaintiff must show that the defendant had "actual knowledge that his conduct was a threat to the lives of others, or to have knowledge of such

circumstances that could reasonably be said to have made foreseeable

to him the peril to which his acts might subject others." Id.

In the case before us there is no evidence that the defendants had

knowledge that their conduct would threaten the life of Jose

Melendez. There is also no evidence that their conduct was extraordinary or outrageous so as to be equivalent to intent or malice or reckless disregard of the rights of others. On the contrary, the defendants

were ignoring Melendez's protestations that he did not need medical

attention and were attempting to provide it to him by taking him to

the hospital. There is no evidence that any member of the Howard

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County emergency crew was aware of a danger in using the blue

monster or of Melendez's actual condition on the trip to the hospital.

For the foregoing reasons, we affirm the judgment of the district

court.

AFFIRMED

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