that, as a matter of law, even if everything plaintiff has alleged is true, the City's conduct in selecting handcuffing procedures and squadrols as modes of transportation does not shock the conscience.
Moreover, taking as true plaintiff's allegations of serious injury, where defendants' conduct does not shock the conscience, that it results in serious injuries does not serve to raise the conduct to a "shock the conscience" level. To hold otherwise would reduce to mere negligence, which may cause serious injuries and even death, the acceptable grounds for a constitutional violation. Archie, 847 F.2d at 1219 (even grossly negligent conduct is not actionable under the due process clause of the fourteenth amendment).
Finally, there is plaintiff's claim that defendants "failed to acknowledge and respond to the empathetic (sic) complaints of pain and injury of the plaintiff," "failed to administer medical assistance" and "failed to contact emergency medical personnel."
Although plaintiff had yet to be charged, his status is analagous to that of a pretrial detainee. A pretrial detainee's § 1983 claim for denial of medical treatment arises from the due process clause of the fourteenth amendment, rather than the eighth amendment's prohibition against cruel and unusual punishment. Anderson, 836 F.2d at 348-49; Van Cleave v. United States, 854 F.2d 82, 83 (5th Cir. 1988); Martin v. Gentile, 849 F.2d 863, 871 (4th Cir. 1988); Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985). However, because a pre-trial detainee's rights are at least as great as the eighth amendment rights of a convicted prisoner, eighth amendment protections are used as a minimum standard for determining the due process rights of a pretrial detainee. See Anderson, 836 F.2d at 349; Jones, 781 F.2d at 771. A prisoner's eighth amendment rights are violated where there is deliberate indifference to the prisoner's serious medical need. Estelle v. Gamble, 429 U.S. 97, 104-05, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). The same standard will be applied to plaintiff's claim. See Anderson, 836 F.2d at 349 (applying "deliberate indifference" standard to pre-trial detainees claim based on failure to protect from assault, but indicating that "deliberate indifference" standard applies to all fourteenth amendment claims by pre-trial detainees); Danese v. Asman, 875 F.2d 1239, 1243 (6th Cir. 1989).
Plaintiff's allegations do not complain of a deliberate indifference to his serious medical need. Reduced to its base, plaintiff's claim is that he sustained serious injuries from "jostling" during a rough ride. There is no allegation that the vehicle plaintiff was riding in was involved in an accident. The complaint alleges neither that plaintiff complained of a serious medical need nor that a serious medical need was evident. That plaintiff complained of an injury is not sufficient. In the alternative, even if he had complained of a serious medical need and a serious medical need not been evident, the defendants could not have reasonably believed that plaintiff suffered such serious injuries from "jostling" and thus were not deliberately indifferent when they refused to obtain immediate medical attention for the plaintiff. See Walmsley v. City of Philadelphia, 872 F.2d 546, 552 (3d Cir. 1989) (officer not deliberately indifferent where there is no indication that he had any inkling that plaintiff may have suffered serious injuries from a mere fist fight); Rasmussen v. Larson, 863 F.2d 603, 606 (8th Cir. 1988) (defendants acted in objectively reasonable manner); Martin, 849 F.2d at 870-71.
The police officer defendants have not filed a motion to dismiss the Counts directed at them. However, Count IV, a § 1983 claim, contains allegations of fifth, eighth and fourteenth amendment violations which suffer from the same deficiences as discussed above. Therefore, the court, sua sponte, dismisses Count IV.
STATE LAW CLAIMS
The federal claims having been dismissed, the remaining state law claims, Counts I, II, and III, are dismissed, as to all defendants, without prejudice, for lack of subject matter jurisdiction. Argento v. Village of Melrose Park, 838 F.2d 1483, 1491 (7th Cir. 1988).
The complaint is dismised in its entirety. Plaintiff is given leave to amend, provided he does so within 21 days of the date of this order. If he fails to do so, the dismissal of the federal claims, Counts IV and V, will be with prejudice.
IT IS SO ORDERED.
DATED: July 28, 1989