Dubbs Ex Rel. Dubbs v. Head Start, Inc.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUL 21 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

JACK DUBBS, individually, and as
father and next friend of Tiffani
Dubbs, a minor; FRANCISCO
AGUIRRE, individually, and as father
and next friend of Jessica Aguirre, a
minor; JOY BROWN, individually,
and as mother and next friend of Marii
Brown, a minor; KEENYA COWANS,
individually, and as mother and next
friend of Keymiya Cowans, a minor;
SHANIKA CROWLEY, individually,
and as mother and next friend of
Kwanita M. Crowley, a minor;
RAICHELLE LOFTIN, individually,
and as mother and next friend of
Quenten Loftin, a minor; ELISHA
PORTERFIELD, individually, and as
mother and next friend of LaQuante
Porterfield, a minor; DAPHINE
SUDDARTH, individually, and as
mother and next friend of Ronisha
Suddarth, a minor,

Plaintiff-Appellants,

v. Nos. 01-5098 & 01-5177

HEAD START, INC., an Oklahoma
corporation; INDEPENDENT
SCHOOL DISTRICT, NO. 1 OF
TULSA COUNTY, OKLAHOMA;
JOHN DOE, Sued as Doe Government
Agents 1 through 5, and John Does 1
through 10; JOHN DOES 1
 THROUGH 10; PEGGY DOE,

Defendants,
and

COMMUNITY ACTION PROJECT
OF TULSA COUNTY, OKLAHOMA,
an Oklahoma not-for-profit
corporation; TULSA CITY-COUNTY
HEALTH DEPARTMENT; KD
ENTERPRISES, INC., an Oklahoma
corporation; JACKIE STRAYHORN,
ARNP; KIM BAKER, sued as: K.
Baker, RN,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
(D.C. NO. 99-CV-732-K(E))

Steven H. Aden, The Rutherford Institute, Charlottesville, Virginia (John W.
Whitehead, The Ruthersford Institute, Charlottesville, Virginia, Jack Y. Goree
and Christopher Goree, Goree & Goree, P.C., Tulsa, Oklahoma, and Leah Farish,
Tulsa, Oklahoma, with him on the briefs), for Plaintiffs - Appellants.

Kevin D. Jewell, Magenheim, Bateman & Helfand, P.L.L.C., Houston, Texas,
Roni S. Rierson, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham &
Gladd, Tulsa, Oklahoma, Scott B. Wood, Whitten, Nelson, McGuire, Wood,
Terry, Roeslius & Dittrich, Tulsa, Oklahoma, (William S. Helfand and Barbara E.
Roberts, Magenheim, Bateman & Helfand, P.L.L.C., Houston, Texas; Galen L.
Brittingham, Atkinson, Haskins, Nellis, Holeman, Phipps, Brittingham & Gladd,
Tulsa, Oklahoma; Elizabeth A. Hart, Whitten, Nelson, McGuire, Wood, Terry,
Roeslius & Dittrich, Tulsa, Oklahoma; John E. Dowdell and Christine D. Little,
Norman, Wohlgemuth, Chandler, & Dowdell, Tulsa, Oklahoma, with them on the
briefs) for Defendants - Appellees.

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Before SEYMOUR and McCONNELL , Circuit Judges, and KRIEGER , District
Judge. *

McCONNELL , Circuit Judge.

In this civil rights action, parents of eight pre-school children enrolled in

the Head Start program in Tulsa, Oklahoma, complain that their children were

subjected to intrusive physical examinations, including genital examinations and

blood tests, on school premises without parental notice or consent. They claim

that the Head Start agency, defendant Tulsa Community Action Project, falsely

represented to medical personnel that consent forms had been obtained for each of

the children and insisted on examinations even for children with up-to-date

physicals supplied by their own doctors. They claim that these examinations

violated their rights under the Fourth and Fourteenth Amendments to the United

States Constitution and under state law.

In a series of orders, the district court disposed of all claims against all

defendants, either on dismissal for failure to state a claim on which relief may be

granted or on summary judgment. The district court then ordered the plaintiffs to

pay the costs of the litigation.

*
The Honorable Marcia S. Krieger, United States District Judge for the
District of Colorado, sitting by designation.

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 For the reasons set forth below, we reverse the judgment of the district

court insofar as it granted summary judgment on the claims against the Tulsa

Community Action Project under the Fourth Amendment, technical battery, and

invasion of privacy under Oklahoma law, also reverse the dismissal of the

parents’ claim under the Fourteenth Amendment, but affirm as to all other claims,

and remand for further proceedings, including reconsideration of the assessment

of costs against the parents.

Factual and Procedural Background

Head Start is a program designed to provide qualified low-income children

with pre-elementary instruction to enable them to succeed when they enter school.

Recognizing the connection between health care and educational readiness, Head

Start program regulations require Head Start agencies, within 90 days of

enrollment of a child in the program, in “collaboration with the parents,” to

“make a determination as to whether or not each child has an ongoing source of

continuous, accessible health care.” 45 C.F.R. 1304.20(a)(1)(i). If not, the

agency must “assist the parents” in “accessing a source of care.” Id. In addition,

the agency must “[o]btain from a health care professional” a “determination as to

whether the child is up-to-date on a schedule of age appropriate preventive and

primary health care,” in accordance with professional standards. Id.,

§1304.20(a)(1)(ii). Again, if children are not “up-to-date” on this schedule of

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care, the agency is instructed to “assist parents in making the necessary

arrangements to bring the child up-to-date.” Id., §1304.20(a)(1)(ii)(A). The

regulations do not authorize, nor do they permit, Head Start agencies to provide

medical examinations or health care to enrolled children without parental

knowledge or consent.

Defendant-Appellee Tulsa Community Action Project (“CAP”) is a not-

for-profit organization that oversees the Head Start program in Tulsa, Oklahoma.

It is a “Head Start Agency” or “grantee” as defined by the applicable regulations,

45 C.F.R. § 1301.2. It receives both state and federal funds. Other defendants

(and appellees) are the Tulsa City-County Health Department (the “County Health

Department”), K.D. Enterprises (“KD”), and two individual nurses, Jacqueline

Strayhorn, ARNP, and Kimberly Baker, RN. CAP contracted with the County

Health Department to perform the examinations at issue. The Health Department

employed nurses Strayhorn and Baker, who performed the examinations. CAP

contracted with KD to perform the educational component of the Head Start

program in Tulsa. CAP leased space at the Roosevelt Elementary School, in

Tulsa, to administer the Head Start program.

On November 5, 1998, Peggy Terry, a registered nurse and a CAP

employee, entered a classroom of pre-school children participating in the Head

Start program at Roosevelt Elementary in Tulsa. She announced that the children

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were to be taken to a another classroom in the building for physical examinations.

One parent, Misti Dubbs, who was employed as an aide in the Head Start

program, protested that CAP had not obtained consent for the examinations and

that many of the families had already turned in physical examination reports from

their own doctors. When nurse Terry insisted on examinations for all the

children, Mrs. Dubbs approached a KD supervisor who in turn consulted the

supervisor of employees at KD’s Roosevelt site. Neither of these supervisors

intervened.

CAP had previously told the County Health Department that CAP would

obtain the requisite consent from parents prior to the medical examinations.

Relying on that representation, the Health Department conveyed this information

to nurses Strayhorn and Baker. On November 5, Strayhorn and Baker arrived at

Roosevelt before the appointed time for the exams and queried the CAP Head

Start representative, Peggy Terry, about whether the children’s parents had

completed consent forms. Strayhorn and Baker looked for consent forms in the

students’ file folders and found none. The nurses raised concerns about the

absence of consent forms with nurse Terry, but Terry assured them that CAP had

previously obtained consent and that the proper forms were on file. Strayhorn and

Baker relied on that information and proceeded with the exams.

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 The central question in this case is whether CAP and the other defendants

had a reasonable basis for believing that the parents had consented to the

examinations 1. At the time of enrollment in the Head Start program, CAP gave

parents of the enrolled children three forms. It is undisputed that these are the

only consent forms for medical procedures used by CAP, and that no other form

of consent, oral or written, was requested or provided. Two of the forms were to

be signed by the parent and returned to CAP. One of these was entitled “Parent

Consent Form,” and solicited parental permission for eight specified tests “if

needed”: tuberculosis, speech/language, dental, developmental screening, hearing,

hemoglobin/HCT, vision screening, and hearing screening. The form also

solicited permission for the child to appear in CAP advertising, for name and

phone number to appear on a classroom roster, and for CAP to maintain, use, and

release “my child’s complete history” for use in “health and educational

planning.” The second form was entitled “Authorization For Treatment to

Minors.” It solicited parental consent for “diagnosis or treatment” by a

“physician or dentist,” as well as transportation to a medical facility “for

emergency care.” At the bottom of the form, parents were given the option to

1
Under some circumstances, child welfare authorities are permitted to
override parental refusal of consent to medical or other examinations of their
children, upon judicial authorization or in emergency situations. No one contends
that this was such a case.

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refuse permission to transport their child “for emergency medical/dental care,”

and to indicate what should be done “[i]n the event of illness or injury which

require emergency medical/dental treatment.” Neither of the forms to be signed

by parents or guardians authorized a general physical examination or a genital

examination.

The third form, provided to at least some of the parents, was entitled “Child

Health Record: Form 3, Screenings, Physical Examination/Assessment.” This was

a physical examination form to be filled in and signed by a “health care provider,”

with a checklist of tests and procedures to be performed. Among the items on this

checklist were a blood test (hematocrit or hemoglobin) and a genital examination.

Nowhere on Form 3 was there any place for parental signature, acknowledgment,

or consent.

Prior to the examinations at issue, at least four of the eight plaintiff parents

had arranged for physical examinations by their own physicians. These

physicians filled out “Form 3,” which was then submitted to CAP. Even though it

received these examination forms, CAP arranged to have these children examined

along with the others on November 5.

The examinations challenged in this case were conducted in an ordinary

classroom, with desks used as examination tables. The examining areas were

separated only by partitions, so that it was possible for other children to see or

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hear portions of the examinations performed on their classmates. According to

the plaintiffs, no doctor was present and the nurses were not in uniform, and the

children were given no explanation regarding what was happening. The children

were required to lower or remove their underclothes and were given a medical

examination that included, among other things, a genital exam and blood test.

The nurses used “Form 3” to record the results of the examinations. During the

examinations, all of the children were subjected to genital inspections. The girls

were asked to lay spread-legged on a table where the nurses inspected the girls’

labia; in some cases the nurses would “palpate,” or touch, the genital area when a

visual inspection was not adequate. Similarly, the nurses would palpate the boys’

genitals to test for the presence of testes. Blood samples were taken by the finger

stick (or “hematocrit”) method, which can be frightening to small children.

According to the plaintiffs, some of the children were upset and confused about

the event, though testimony regarding their exact words was the subject of a

motion in limine pending as of the grant of summary judgement. With the

exception of Misti Dubbs, who was present in her capacity as a Head Start aide,

no parents or guardians were with their children during the examinations. Parents

were not given prior notice, and were not informed by telephone that day

regarding the examinations. According to CAP, notification letters were prepared

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and available at the project site, but “[u]nfortunately” were “not distributed to the

children to take home to their parents.”

The nurses who administered the examinations, Strayhorn and Baker,

testified that the exams were in conformity with standards for well-child

examinations and were not performed for the purpose of detecting child abuse.

The plaintiffs’ expert similarly testified that – aside from the lack of consent and

the “improper setting” – the examinations were conducted in conformity to

standards for well-child examinations. Thus, there is no remaining issue in the

case regarding the manner in which the examinations were conducted.

Subsequent to the examinations, eight parents, Jack Dubbs, Francisco

Aguirre, Joy Brown, Keenya Cowans, Shanika Crowley, Raichelle Loftin, Elisha

Porterfield, and Daphine Suddarth , filed suit in the United States District Court

for the Northern District of Oklahoma, on their own behalf and on behalf of their

minor children. They asserted multiple causes of action pursuant to 42 U.S.C. §

1983: unreasonable search and seizure in violation of the Fourth and Fourteenth

Amendments; lack of substantive due process by interfering with the right of

privacy in violation of U.S. Constitution article IV, § 2, clause 1, and amendments

I, IV, IX and XIV; and interference with the parents’ liberty rights in violation of

U.S. Constitution article IV, § 2, clause 1, and amendments I, IX, and XIV.

Under 42 U.S.C. §§ 1985 and 1986, the parents alleged a conspiracy to deprive

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them of equal protection under the law. They also asserted various state common

law and constitutional claims, including: unreasonable search and seizure in

violation of Oklahoma Constitution, article 2, § 30; interference with parental

liberty rights under Oklahoma Constitution, article 1, §§ 1 and 2, and article 2, §§

2 and 30; assault; battery; invasion of privacy/intrusion upon seclusion;

intentional infliction of emotional distress; negligent infliction of emotional

distress; negligence; gross negligence; and medical malpractice.

CAP, the nurses, the County Health Department, and KD first moved to

dismiss, arguing failure to state a claim upon which relief could be granted and,

for the individual nurses, qualified immunity. The district court granted the

motions to dismiss on the substantive due process claims under 42 U.S.C. § 1983

and conspiracy claims under 42 U.S.C. §§ 1985 and 1986 as to all defendants. As

to the motions of individual defendants Baker and Strayhorn, the district court

granted the motions to dismiss based on the nurses’ assertion of qualified

immunity to the § 1983 claim alleging unreasonable search and seizure.

Subsequently, all defendants sought summary judgment on the remaining

constitutional and state claims. The district court granted these motions in a

series of orders dated May 16, 2001.

In substance, the district court concluded (1) that the defendants’ conduct

did not rise to the “shocks the conscience” level necessary to state a claim under

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substantive due process; (2) that the examinations were a “search” for purposes of

the Fourth Amendment; (3) that the search was “reasonable” under the Fourth

Amendment both because it was objectively reasonable for the defendants to

believe they had consent and because the examinations fell within the “special

needs” exception to the Fourth Amendment; (4) that for various reasons,

including consent, plaintiffs failed to make out a claim under their various state

law causes of action; and (5) that the individual defendants, Strayhorn and Baker,

were entitled to qualified immunity.

Standard of Review

The district court granted motions to dismiss pursuant to Federal Rule of

Civil Procedure 12(b)(6) as to all defendants on the substantive due process

claims under 42 U.S.C. § 1983 and conspiracy claims under 42 U.S.C. §§ 1985

and 1986. It also granted motions by the individual defendants Strayhorn and

Baker to dismiss under Rule 12(b)(6) for alleged Fourth Amendment violations on

grounds of qualified immunity. We will uphold a dismissal under Rule 12(b)(6)

"only when it appears that the plaintiff can prove no set of facts in support of the

claims that would entitle him to relief, accepting the well-pleaded allegations of

the complaint as true and construing them in the light most favorable to the

plaintiff." Yoder v. Honeywell, Inc., 104 F.3d 1215, 1224 (10th Cir. 1997)

(internal citations omitted), cert. denied, 522 U.S. 812 (1997). The legal

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sufficiency of a complaint is a question of law; therefore, a Rule 12(b)(6)

dismissal is reviewed de novo. Sutton v. Utah State Sch. for the Deaf & Blind,

173 F.3d 1226, 1236 (10th Cir. 1999). “The court’s function on a Rule 12(b)(6)

motion is not to weigh potential evidence that the parties might present at trial,

but to assess whether the plaintiff’s complaint alone is legally sufficient to state a

claim for which relief may be granted.” Id., quoting Miller v. Glanz, 948 F.2d

1562, 1565 (10th Cir. 1991).

The district court granted summary judgment in favor of the defendants on

all remaining claims. We review de novo the district court’s grant of summary

judgment. Phelan v. Laramie County Cmty. Coll. Bd. of Trs., 235 F.3d 1243,

1246 (10th Cir. 2000), cert. denied, 532 U.S. 1020 (2001). Accordingly, summary

judgment is appropriate “if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). When we apply this

standard, we examine the record and any reasonable inferences drawn therefrom

in the light most favorable to the non-moving party. 19 Solid Waste Dept. Mechs.

v. City of Albuquerque, 156 F.3d 1068, 1071 (10th Cir. 1998).

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 Discussion

I. Constitutional Claims

The parents contend that the physical examinations conducted on November

5, 1998, violated their constitutional rights, and those of their children, to be free

from unreasonable searches under the Fourth and Fourteenth Amendments. 2 They

also assert that the physical examinations violated their children’s privacy rights,

which are protected as a matter of “substantive due process” 3 under the

Fourteenth Amendment, as well as their own substantive due process rights.

2
In addition to claims brought under 42 U.S.C. § 1983 for violation of the
Fourth and Fourteenth Amendments, the parents pressed claims of conspiracy to
deprive them and their children of equal protection of the law and of privileges
and immunities guaranteed by the Constitution. 42 U.S.C. §§ 1985, 1986. The
district court dismissed for failure to state a claim, and the parents have not
appealed this dismissal or briefed these issues in this Court. We therefore do not
consider these claims on appeal. See, e.g., Murrell v. Shalala, 43 F.3d 1388, 1389
n.2 (10th Cir. 1994) (noting failure to develop argument results in denial of
appellate review).
3
Substantive due process is the rubric under which the Supreme Court has
addressed unenumerated rights under the Fourteenth Amendment. See, e.g.,
Washington v. Glucksberg, 521 U.S. 702 (1997). There is some debate about
whether the Privileges or Immunities Clause of that amendment is the more
historically accurate ground for such rights. See John Hart Ely, Democracy and
Distrust 18 (1980); Akhil R. Amar, The Bill of Rights and the Fourteenth
Amendment, 101 Yale L.J. 1193, 1257-59 (1992); John Harrison, Reconstructing
the Privileges or Immunities Clause, 101 Y ALE L.J. 1385, 1466-69 (1992);
Michael W. McConnell, The Right to Die and the Jurisprudence of Tradition,
1997 Utah L. Rev. 665, 691-98 (1997). But see Robert Bork, The Tempting of
America: The Political Seduction of the Law 36-39 (1990). As discussed below,
because the Fourth Amendment provides the explicit textual source for the rights
at issue in this case, this debate does not effect the resolution of the present case.

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 A. Due Process

The parents maintain that the physical examinations compromised: 1) their

children’s fundamental right to privacy by interfering with individual bodily

integrity, medical decisions related to reproduction, and the right to refuse

medical treatment; and 2) their own fundamental liberty interest in the care,

custody and management of their children. They claim that these rights are

protected under the doctrine of “substantive due process” under the Fourteenth

Amendment. 4 The district court dismissed on the ground that a substantive due

process claim must be more than an ordinary tort and must shock the conscience

of the court. See, e.g., Tonkovich v. Kansas Bd. of Regents, 159 F.3d 504, 528

(10th Cir. 1998); Abeyta By and Through Martinez v. Chama Valley Indep. Sch.

Dist. No. 19, 77 F.3d 1253, 1257-58 (10th Cir. 1996). Applying that standard, the

district court dismissed each substantive due process claim, finding that, as

alleged, the conduct here did not rise to conscience shocking level.

4
In district court, the parents also asserted a violation of their procedural
due process rights, which was dismissed on motion for summary judgment. Order
Granting CAP’s Motion for Summary Judgment dated May 16, 2001, at 14, App.
205-06. In their briefs as Appellants in this court, the parents do not develop this
procedural due process claim. It is therefore waived. See Utahns for Better
Transp. v. United States Dept. of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002),
citing Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992) (“even issues
designated for review are lost if they are not actually argued in the party’s brief”).

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 We question the district court’s rationale for dismissing these claims, for

two reasons. First, the district court’s evaluation of the seriousness of the

defendants’ challenged actions was evidently affected by the court’s conclusion

that the parents consented to the examinations or, in the alternative, that the

examinations were necessary to conform to Head Start regulations. Order

Granting CAP’s Motion for Summary Judgment, dated May 16, 2001, at 7-12,

App. 198-203. For reasons explained below, those conclusions were erroneous as

a matter of law. Second, the district court misapprehended the legal standard

applicable to purported substantive due process rights that – like the right to

consent to medical treatment for oneself and one’s minor children – may be

“objectively, deeply rooted in this Nation’s history and tradition.” Washington v.

Glucksberg, 117 S.Ct. 2258, 2268 (1997); Collins v. City of Harker Heights, 503

U.S. 115 (1992); Moore v. City of East Cleveland, 431 U.S. 494, 503 (1977). It is

not implausible to think that the rights invoked here – the right to refuse a

medical exam and the parent’s right to control the upbringing, including the

medical care, of a child – fall within this sphere of protected liberty. See Cruzan

v. Director, Missouri Department of Health, 497 U.S. 261, 278 (1990) (the

“principle that a competent person has a constitutionally protected liberty interest

in refusing unwanted medical treatment may be inferred from our prior

decisions”); Troxel v. Granville, 120 S. Ct. 2054, 2060 (2000) (“the interest of

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parents in the care, custody, and control of their children – is perhaps the oldest

of the fundamental liberty interests recognized by this Court”). While the “shocks

the conscience” standard applies to tortious conduct challenged under the

Fourteenth Amendment, County of Sacramento v. Lewis, 523 U.S. 833, 848-51

(1998), it does not exhaust the category of protections under the Supreme Court’s

substantive due process jurisprudence, or eliminate more categorical protection

for “fundamental rights” as defined by the tradition and experience of the nation.

With respect to the children’s claims, however, we decline to resolve these

questions because the children’s interests advanced under the rubric of

substantive due process are more precisely addressed under the Fourth

Amendment. The Supreme Court has explained:

Because we have always been reluctant to expand the concept of
substantive due process, . . . we [have] held . . . that where a
particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government
behavior, that Amendment, not the more generalized notion of
substantive due process, must be the guide for analyzing these
claims.

Lewis, 523 U.S. at 842 (citations and internal quotations omitted); cf. Bateman v.

City of West Bountiful, 89 F.3d 704, 709 (10th Cir. 1996) (analyzing a claim

under the Takings Clause rather than the Due Process or Equal Protection

Clauses). The Fourth Amendment recognizes the “right of the people to be secure

in their persons . . . against unreasonable searches. . . .” U.S. Const. amend. IV.

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As we explain below, the physical examinations challenged here were searches

for purposes of the Fourth Amendment, and the privacy interests of the children

can fully be vindicated under that “explicit textual source of constitutional

protection.” Graham v. Connor, 490 U.S. 386, 395 (1989); see also Darryl H. v.

Coler, 801 F.2d 893, 901 n.7 (7th Cir. 1986) (noting that the Fourth Amendment

claim in that case involves “the same basic analysis” as a privacy claim under the

Due Process Clause). Accordingly, the Fourth Amendment, and “not the more

generalized notion of substantive due process, must be the guide for analyzing

these claims.” Lewis, 523 U.S. at 842.

The same cannot, however, be said of the parents’ Fourteenth Amendment

claim regarding their right to direct and control the medical treatment of their

children. While the parents have standing to assert a Fourth Amendment claim on

their children’s behalf, they can assert no independent Fourth Amendment claim

of their own under these facts. Hollingsworth v. Hill, 110 F.3d 733, 738 (10th Cir.

1997). Yet their substantive due process claim, based on alleged violation of

their parental rights, is independent of their children’s claim based on unlawful

search.

Given the particular posture of this case, we decline to resolve the difficult

questions regarding the standard to be applied to this claim because the district

court gave only cursory treatment to the parents’ substantive due process claims,

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possibly due to its conclusions regarding consent. Moreover, the parent plaintiffs

have not further developed their substantive due process claims on appeal. For

these reasons, and because we determine below that a remand is necessary

regarding the issue of parental consent, we reverse the district court’s disposition

of the parents’ substantive due process claim and remand to the district court for

further consideration.

We turn, then, to the Fourth Amendment claim and the issue of consent.

B. Search and Seizure

Plaintiffs argue that the medical examinations violated the children’s right

to be free from unreasonable searches under the Fourth Amendment, as applicable

to the states through the Fourteenth. 5 This claim raises three subsidiary questions:

(1) Were the physical examinations in this case “searches” for purposes of the

Fourth Amendment? (2) Did CAP and the other defendants have a reasonable

basis for belief that the parents consented to the examinations? (3) Did the

5
Plaintiffs asserted similar claims under Okla. Const. Art. 2, § 30, which is
the state constitutional parallel to the Fourth Amendment. See Sloan v. Sprouse,
968 P.2d 1254, 1258 (Okla. Crim. App. 1998). The district court granted
summary judgment on these state constitutional claims on the ground that the
plaintiffs had not adequately briefed the issue. Nor have they done so in this
Court. The claims are accordingly waived. See Utahns for Better Transp., 305
F.3d at 1175, citing Phillips v. Calhoun, 956 F.2d 949, 954 (10th Cir. 1992)
(deeming claims “waived under the general rule that even issues designated for
review are lost if they are not actually argued in the party’s brief”).

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examinations fall within the “special needs” exception to the requirement of

consent or a warrant?

1. Were the physical examinations in this case “searches” for Fourth
Amendment purposes?

The Fourth Amendment to the United States Constitution provides that the

Government shall not violate “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and

seizures....” U.S. Const. amend IV. Under our jurisprudence, “[s]earches

conducted without a warrant are per se unreasonable under the Fourth

Amendment–subject only to a few ‘specifically established and well-delineated

exceptions.’” Roska v. Peterson, 328 F.3d 1230, 1248 (10th Cir. 2003), quoting

Katz v. United States, 389 U.S. 347, 357 (1967).

The defendants contend that because the exams were not conducted upon

suspicion of criminal activity and the data collected were not to be used for law

enforcement purposes, the examinations were not “searches” subject to Fourth

Amendment requirements. Relying on United States v. Attson, 900 F.2d 1427,

1429-30 (9th Cir. 1990), cert. denied, 498 U.S. 961 (1990), they argue that where

the alleged search is “noncriminal” and “noninvestigatory,” the “application of

the Fourth Amendment is limited.” CAP Br. 5.

The district court concluded that the defendants were not entitled to

summary judgment on this issue, because there was evidence in the record

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(controverted, to be sure) that discovery of child abuse was one purpose of the

exams. Indeed, the district court noted, citing 10 O.S. §§ 7103, 7104, that under

Oklahoma law medical professionals would be required to report any evidence of

abuse encountered during such routine exams. We agree.

More fundamentally, however, the defendants’ contention that the Fourth

Amendment does not apply in the “noncriminal” and “noninvestigatory” context is

without foundation. The Fourth Amendment protects the right of the people to be

“secure in their persons” from government intrusion, whether the threat to privacy

arises from a policeman or a Head Start administrator. There is no “social

worker” exception to the Fourth Amendment. See Ferguson v. City of Charleston,

532 U.S. 67, 76 n.9 (2001) (“we have routinely treated urine screens taken by

state agents as searches within the meaning of the Fourth Amendment even

though the results were not reported to the police.”); Doe v. Heck, 327 F.3d 492,

509 (7th Cir. 2003) (“the strictures of the Fourth Amendment apply to child

welfare workers, as well as all other governmental employees”). 6

6
To be sure, searches that have noninvestigatory, noncriminal purposes
often fit within the category of “special needs,” which are subject to a balancing
test rather than to the more rigorous requirement of warrant or consent. The
district court held that this is such a “special needs” case, a conclusion we will
address below. In this section, we discuss the defendants’ more far-reaching
contention, that noncriminal, noninvestigatory examinations are not “searches”
for Fourth Amendment purposes at all.

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 The defendants rely on United States v. Attson, 900 F.2d 1427, 1429 (9th

Cir. 1990), cert. denied, 498 U.S. 961 (1990), for the proposition that because the

intent in collecting the data was not for law enforcement purposes the exams were

not “searches” subject to Fourth Amendment protections. In Attson, a man

injured in an automobile accident was taken to a public hospital for emergency

treatment. He gave express consent for the taking of blood for medical purposes

and blood was drawn for medical purposes, after which information regarding his

blood alcohol level was supplied to the police for law enforcement purposes. The

Ninth Circuit ruled that the doctor had not performed a search in violation of the

Fourth Amendment because the record reflected that the doctor acted solely for

health purposes of the patient and acted entirely independently of a governmental

intent to collect evidence for use in the defendant’s prosecution. Id. at 1433. The

case is thus distinguishable. In Attson, the medical procedure was consensual; the

real issue was the legality of providing the results to police. Here, the plaintiffs

contend that the medical examination itself was performed without consent.

Moreover, contrary to the defendants’ argument, the Attson decision did not

suggest that all “noncriminal, noninvestigatory” examinations fall outside the

protection of the Fourth Amendment. The court held: “for the conduct of a

governmental party to be subject to the fourth amendment, the governmental party

engaging in that conduct must have acted with the intent to assist the government

-22-
in its investigatory or administrative purposes and not for an independent

purpose.” 900 F.2d at 1433 (emphasis added). Thus, even under the Ninth

Circuit’s interpretation, Fourth Amendment protections extend to searches

conducted for “administrative” purposes. In its brief, CAP itself asserts that the

exams in this case were “mandated by federal regulation” and that its policy of

conducting these exams within ninety days of enrollment was to ensure that it

followed these regulations. CAP Br. at 5. The nurses and the County Health

Department also characterize the exams as “solely for medical evaluation required

by the government.” County Health Department and Nurses Br. at 14. Thus, even

under the standard of Attson, the examinations were searches for Fourth

Amendment purposes because they were to determine whether the children were

in compliance with federal Head Start regulations.

Nothing in the language of the Fourth Amendment or the precedents of the

Supreme Court supports the defendants’ restrictive interpretation. The

Amendment is expressed in passive voice (“the right of the people to be secure in

their persons ... shall not be violated”) without specifying or limiting the

governmental actors who are to be constrained. The focus of the Amendment is

thus on the security of the person, not the identity of the searcher or the purpose

of the search. The Supreme Court has posed the Fourth Amendment inquiry in

terms of whether the governmental conduct at issue compromises “an expectation

-23-
of privacy that society is prepared to consider reasonable.” O’Connor v. Ortega,

480 U.S. 709, 715 (1987) (internal quotation omitted); see also Camara v.

Municipal Court, 387 U.S. 523, 528 (1967) (“The basic purpose of this

Amendment . . . is to safeguard the privacy and security of individuals against

arbitrary invasions by governmental officials.”). As the Court has explained:

Because the individual’s interest in privacy and personal security
suffers whether the government’s motivation is to investigate
violations of criminal laws or breaches of other statutory or
regulatory standards, . . . it would be anomalous to say that the
individual . . . [is] fully protected by the Fourth Amendment only
when the individual is suspected of criminal behavior.

O’Connor, 480 U.S. at 715 (internal quotations and citations omitted).

In accordance with this understanding of the purposes of the Amendment,

the Supreme Court has held that medical examinations including a blood or urine

test trigger, at a minimum, the Fourth Amendment balancing test. See, e.g.,

Schmerber v. State of California, 384 U.S. 757, 767-68 (1966) (“compelled”

blood test an intrusion constituting search); Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 616-17 (1989) (breathalyzer exam for chemical analysis

constitutes search); Board of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie,

County v. Earls, 122 S.Ct. 2559, 2568-69 (2002) (urine test search triggering

Fourth Amendment inquiry under special needs balancing test); Vernonia Sch.

Dist. 47J v. Acton, 515 U.S. 646, 656-58 (1995) (same); see Yin v. State of

California, 95 F.3d 864, 874 (9th Cir. 1996), cert. denied, 519 U.S. 1114 (1997)

-24-
(O’Scannlain, J., concurring) (“certain aspects of the routine physical examination

at issue here would implicate the requisite ‘concerns about bodily integrity,’” and

thus trigger protection under the Fourth Amendment). Indeed, in the Court’s

“special needs” cases involving medical examination procedures, the Court did

not hold that the practices at issue were or were not constitutional because they

were or were not searches; rather, their permissibility under the Fourth

Amendment depended upon the “reasonableness” of the procedure. See, e.g.,

Earls, 122 S.Ct. at 2564 (finding school policy of urine testing a “governmental

search” but “reasonable”).

The defendants’ argument seems to be based, at bottom, on the view that in

the absence of a criminal or other investigatory purpose, medical examinations

such as those conducted at CAP’s Head Start program at Roosevelt Elementary

are for the good of the children and should not be hamstrung by legalistic

requirements like warrants or consent. We do not doubt that CAP was acting in

the interest of the children, as it understood them. But the requirement of patient

consent, or of parental consent in the case of minor children, serves important

practical as well as dignitary concerns, even when a social welfare agency, like

CAP, believes it is acting for the good of the child.

It should go without saying that adequate consent is elemental to proper

medical treatment. In medical procedures involving children, ensuring the

-25-
existence of parental consent is critical, because children rely on parents or other

surrogates to provide informed permission for medical procedures that are

essential for their care. American Academy of Pediatrics, Informed Consent,

Parental Permission, and Assent in Pediatric Practice, 95 Pediatrics 314-17

(February, 1995).

Even beyond constitutional values of privacy, dignity, and autonomy,

parental notice and consent for childhood physical examinations are of significant

practical value. Because of CAP’s failure to notify parents in advance of the

examinations, no parents were present to provide medical histories, discuss

potential issues with the health care professionals, help to explain the procedures

to the children, and reassure them about the disturbing and unfamiliar aspects of

the exam – which included blood-letting, which is painful, as well as visual and

sometimes tactile inspection of genitals by strangers. At least half of the plaintiff

children were subjected to a duplicative exam by unfamiliar health care

professionals in a makeshift setting, even though they had already obtained exams

from their own doctors. These practical consequences might well have been

averted by more careful attention to the children’s Fourth Amendment rights.

Accordingly, we agree with the district court’s conclusion that the physical

examinations performed by the defendants in this case constituted “searches”

within the meaning of the Fourth Amendment, and thus were unconstitutional

-26-
unless they were performed with warrant or parental consent, or fall within the

“special needs” exception to the warrant requirement.

2. Did CAP have a reasonable basis for believing that the parents gave
consent for the physical examinations?

As already noted, the central disputed issue in this case is consent. It is

well established that a search conducted pursuant to a valid consent is

constitutionally permissible. Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973). Thus, if the trier of fact concluded that the parents in this case, on behalf

of their minor children, actually consented to the examinations, there would be no

Fourth Amendment violation. United States v. Rith, 164 F.3d 1323, 1330 (10th

Cir. 1999). Moreover, because the Fourth Amendment prohibits only

“unreasonable” searches and seizures, the Supreme Court has held that the

Amendment is satisfied when, under the circumstances, it is objectively

reasonable for the official to believe that the scope of a person’s consent

permitted him to conduct the search. Florida v. Jimeno, 500 U.S. 248, 251

(1991); Illinois v. Rodriguez, 497 U.S. 177, 186 (1990); United States v. Osage,

235 F.3d 518, 519-21 (10th Cir. 2000).

CAP maintains that “the evidence unequivocally established, and the

district court correctly held, that the parents consented to the medical

examinations of their children.” CAP Br. 9. That is a misstatement of the district

court’s holding. The district court analyzed the consent forms used by CAP in

-27-
this case and found sufficient ambiguities and inconsistencies to permit a jury to

conclude that the parents had not given their consent:

[T]he consent forms are not models of draftsmanship. At one point in their
supplemental brief, defendants assert the “Authorization for Treatment to
Minors” form must be read in bifurcated fashion, the bottom half limited to
emergency care and the top half not so limited. The language of the forms
is ambiguous at times. For example, plaintiffs’ expert Dr. Nelson testified
that the “Authorization for Treatment to Minors” form is limited to
treatment, as the title suggests. However, defendants point out that, in
smaller print within the body of the form, it authorizes “diagnosis or
treatment” (emphasis added), which more clearly suggests a routine
physical examination. The forms utilized, as this litigation has brought
home to CAP, could have been crafted more precisely. In other words, if
the dispositive issue were whether Parent Plaintiffs gave a fully-informed
consent to the specific procedures of genital examination and blood test,
the Court would deny summary judgment based upon a genuine issue of
material fact.

Order Granting CAP’s Motion for Summary Judgment, dated May 16, 2001 at 11,

App. 202 (citations omitted; emphasis added). The district court granted

summary judgment on the theory that CAP had an “objectively reasonable, good-

faith belief in the fact of consent and the scope of that consent.” Id. See also id.

at 203 (“the examinations of all of the Minor Plaintiffs in this case were

conducted with a reasonable belief that parental consent had been properly

obtained and the scope included genital examination and blood tests”). In other

words, the record did not show that the parents actually consented, but CAP had a

reasonable belief that they did.

-28-
 As the Supreme Court’s decisions illustrate, there can be cases of

ambiguous consent; there is a difference between an individual’s actual consent to

a search and the reasonableness of a government official’s belief that consent was

given. Rodriguez, 497 U.S. at 183-84. But this is not one of them. In this case,

consent – if it existed – took the form of signatures on forms prepared by CAP

and distributed to the parents. The forms themselves indicate precisely what the

parents consented to. It is a common-law rule to construe ambiguous language

against the interest of the party that drafted it. Cf. Mastrobuono v. Shearson

Lehman Hutton, Inc., 514 U.S. 52, 62-63 (stating this principle in the context of

contract interpretation). If there are any ambiguities here, the drafter of the forms

– CAP – is responsible. A trier of fact might well conclude that it is not

reasonable to allow the drafter of a defective consent form to claim latitude to go

beyond the express terms of the consent on the basis of ambiguities that are its

own handiwork.

In the context of a criminal investigation, the Supreme Court has held that

the “standard for measuring the scope of a suspect’s consent under the Fourth

Amendment is that of ‘objective’ reasonableness – what would the typical

reasonable person have understood by the exchange between the officer and the

suspect?” Jimeno, 500 U.S. at 251. In the context of this case, the parallel

standard of “objective reasonableness” is: what would the “typical reasonable

-29-
person” have understood by the exchange between the Head Start agency and the

parents? Because it is undisputed that the only relevant “exchange” between CAP

and the parents was the distribution of the “consent forms” by CAP to the parents

and the return of those forms to CAP, the issue here is what the typical reasonable

person would have understood by the forms. We must bear in mind that the

persons for whom the forms were prepared were not sophisticated professionals,

but ordinary parents of low-income children, who had no reason to suppose that

they had to parse the small print for hidden meanings.

The record contains three forms distributed and used by CAP: (1) a “Form

3” provided to at least some of the parents at the time of enrollment, but not

signed by the parent, to be completed by a medical professional; (2) a form

entitled “Parent Consent Form” that contains consent to certain procedures such

as hemoglobin/HCT tests and ear exams; and (3) a form entitled “Authorization

for Treatment of Minors” that pertains to emergency procedures. CAP contends

that “[o]nce CAP received these consent forms, it believed it had parental consent

to perform physical examinations on its enrollees.” In addition to the forms, CAP

points to Head Start program regulations that, it says, require each Head Start

enrollee “to receive a physical examination within ninety days of enrollment.” It

contends that, in light of these regulatory requirements, a Head Start grantee is

reasonably entitled to interpret the consent forms signed by the parents as

-30-
encompassing consent to a general physical examination, including genital

examination. 7

None of these forms proves that the parents consented to the examinations

performed here. Only Form 3 appears on its face to have anything to do with

general physical examinations, and only Form 3 contains any reference to genital

examinations. Form 3, however, is not an instrument for parental consent to an

examination. It is a checklist for health care professionals to record medical

histories and examination results. Its top portion, the medical history section,

specifically says that it is to be filled out by “Head Start Staff or Health Care

Provider before Physical Examination/Assessment[,]” while the bottom portion is

to be completed by the “Health Care Provider During and After Physical

Examination/Assessment.” Nowhere on the form is there any place for parental

signature.

CAP appears to acknowledge that this form was not itself a consent form,

but it argues, and the district court agreed, that the form gave notice to the parents

that general physical examinations would include blood tests and genital

examinations. See Order Granting CAP’s Motion for Summary Judgment, dated

7
In its brief in this Court, CAP asserts (without citation to the record or
briefs) that “the parents concede that they consented to the physical
examinations.” CAP Br. 12. We can discover no such concession. The parents
“concede” that they consented to the procedures specified by the consent forms
they signed, and nothing more.

-31-
May 16, 2001 at 13, App. 204 (referring to the defendants’ “objectively

reasonable belief that the Form 3 gave Parent Plaintiffs at least constructive

notice that the medical examinations would involve the genitalia and a blood

test”). The problem with this argument is that the parents did not consent to

administration of general physical examinations by CAP-supplied health care

professionals. “Form 3” is the form that the parents are asked to supply to their

own physicians to record the results of the physical exam and to report the results

to the Head Start authorities. At least four of the eight plaintiffs took this form to

their own doctors, and supplied the completed form to CAP. Nothing in the

language of Form 3 provides any reason to suspect that CAP would conduct

physical examinations on its own authority, without further notice or consent by

parents.

This understanding is confirmed by the very regulations CAP relies upon.

The regulations require the Head Start agency “[i]n collaboration with the parents

and as quickly as possible, but no later than 90 calendar days” after enrollment to

“[m]ake a determination as to whether or not each child has an ongoing source of

continuous, accessible health care,” and to “[o]btain from a health care

professional a determination as to whether the child is up-to-date on a schedule of

age appropriate preventive and primary health care . . . .” 45 C.F.R. § 1304.20(a).

As to both determinations, if the child does not have a source of ongoing health

-32-
care or is not up-to-date on an age appropriate schedule of well child care, the

regulations require the Head Start agency to “assist the parents” in satisfying the

requirement. Id. In no circumstances do the regulations authorize the Head Start

agency to subject enrolled children to physical examinations without parental

notice or consent. The regulations contain a section entitled “Involving parents,”

which explicitly requires Head Start agencies to “[c]onsult with parents

immediately when child health or developmental problems are suspected or

identified,” to “[f]amiliarize parents with the use of and rationale for all health

and developmental procedures administered through the program,” and to “obtain

advance parent or guardian authorization for such procedures.” Id., § 1304.20 (e)

(1), (e)(2).

According to these regulations, the parents of Head Start children are

responsible in the first instance for obtaining a physical examination and medical

history and for providing a report of this to the Head Start agency. This would

appear to be the function of “Form 3.” If such a form is not provided, the Head

Start agency must “assist the parents” in complying. It may well be reasonable

for the Head Start agency to make arrangements with the County Health

Department to provide free physicals on the premises of the Head Start project,

but it is not reasonable to do so without notifying the parents and obtaining their

-33-
consent, nor is it reasonable to subject children who have already filed an up-to-

date “Form 3” to a second examination.

Nor do the other two forms evince consent to the examinations. The

“Parent Consent Form” contained in the record provides permission for the

following “if needed:” “TB Test,” “Speech/Language Services,” “Dental

Examination/Treatment,” “Developmental Screenings,” “Hearing Screening,”

“Hemoglobin/HCT,” “Vision Screening,” “Hearing Screening,” and “Permission .

. . to Collect, Maintain, Use and Release . . . Child’s Complete History.”

Nowhere on this form is consent given to the procedures complained of here, such

as genital examination. 8 While some of these procedures are typically performed

as part of a well-child examination, as the record shows, most or all of them can

also be performed outside the context of a physical exam. A form granting

consent to certain specified procedures does not constitute consent to other

procedures, or to a general physical examination.

Similarly, the form entitled “Authorization for Treatment to Minors” does

not evince consent to the examination at issue here. In bold print at the top of the

document, the form is entitled “Authorization for Treatment To Minors.”

“Treatment” is obviously not the same thing as a routine physical examination,

and a parent is unlikely to understand it as such. In the middle section, the form

8
The form does, however, authorize a blood test.

-34-
authorizes CAP to transport the child “for emergency care” or “emergency dental

care,” allowing the parents to designate the hospital or dentist of their choice.

The bottom of the form is entitled “Refusal to Grant Permission.” It allows the

parent to sign a statement that “I do not give permission to Tulsa County Head

Start to transport my child [space for name] for emergency medical/dental care.” 9

The plaintiffs’ expert, an experienced pediatrician, testified that a physician

would understand this form as “a form for emergency treatment,” having “nothing

to do with specific on-site consent for a physical examination.”

As the district court noted, CAP argued that the “Authorization for

Treatment to Minors” form “must be read in a bifurcated fashion, the bottom half

limited to emergency care and the top half not so limited.” Order of Granting

CAP’s Motion for Summary Judgment, dated May 16, 2001 at 11, App. 202.

Focusing solely on the top half, CAP argued that although the title of the form is

limited to “Treatment,” “in smaller print within the body of the form, it

authorized ‘diagnosis or treatment’ (emphasis added).” “Diagnosis,” CAP says,

includes examination. But consent forms for parents of children in Head Start

programs should not be an exercise in obfuscation and misdirection. The question

9
One parent, Joy Brown, signed in refusal to transport her child for
treatment in order that she be the person to transport in such instances. This
belies CAP’s assertion that “none of the parents ever withdraw [sic] their consent
or to limited [sic] their consent in any manner.” CAP Br. 10.

-35-
is what a “typical reasonable person” would understand from the form. A three-

part form, whose top part is entitled “treatment,” and whose middle and bottom

parts are explicitly confined to “emergency” treatment, falls considerably short of

the evidence that would be needed to establish conclusively the consensual

character of these examinations. At the very least, we cannot agree with the

district court’s conclusion that there was no issue of material fact regarding the

objective reasonableness of CAP’s belief that it had consent based on these forms.

Indeed, even if we were to accept CAP’s invitation to “read [the form] in a

bifurcated fashion,” and to focus on the “smaller print within the body of the

form” instead of the bold print title at the top, we still would come to the same

conclusion: the “Authorization for Treatment To Minors Form” does not grant

consent for well-child physical examinations. The top portion of the form reads

as follows, in full:

Authorization For Treatment to Minors
We, the undersigned parent(s) or legal guardian of the minor listed
below:
_______________________ Birth date: ________________

Do hereby authorize any x-ray examination, anesthetic, dental,
medical or surgical diagnosis or treatment by any physician or dentist
licensed by the State of Oklahoma and hospital service that may be
rendered to said minor under the general, specific or special consent
of the TULSA COUNTY HEAD START PROGRAM, the temporary
custodian of the minor, whether such diagnosis or treatment is
rendered at the office of the physician or dentist to call in any
necessary consultants, in his/their discretion.

-36-
 It is understood that this consent is given in advance of any specific
diagnosis or treatment being required, but is given to encourage those
persons who have temporary custody of the minor, and said physician
or dentist to exercise his/their best judgment as to the requirements
of such diagnosis or medical or dental or surgical treatment.

This consent shall remain effective during the 1998/99 school year, unless
sooner revoked in writing to the Tulsa County Head Start Program.

Parent’s Legal Signature _____________________ Date ____________

Putting aside the fact that the first paragraph contains garbled syntax and

evidently is missing some words, it does not grant consent for the type of

examination at issue here. To begin with, the form does not mention well-child

examinations or any other form of general physical exam. It refers, instead, to

“diagnosis or treatment.” Contrary to CAP’s argument in district court,

“diagnosis” does not “suggest[] a routine physical examination.” The term

“diagnosis” is defined as “the art or act of identifying a disease from its signs and

symptoms.” Webster’s Third New International Dictionary 622 (1976). While a

general physical examination might disclose a disease or condition that warrants a

“diagnosis,” the well-child examination itself is not a “diagnosis.” Moreover, the

form is limited to treatment or diagnosis by a “physician or dentist licensed by the

State of Oklahoma.” Nurses Baker and Strayhorn are neither physicians nor

dentists.

In summary, because no form signed by the parents gave CAP explicit

authorization to conduct general well-child examinations, including genitalia

-37-
examinations, the district court should not have held, as a matter of law, that it

was objectively reasonable for CAP to believe that it had been given consent to

authorize and arrange for the children to be examined. It bears emphasis that this

case comes to this Court on appeal of an order granting summary judgment in

favor of the defendants. The parents did not move for summary judgment and

there is no need for this Court to consider whether, on this record, they would be

entitled to it. We hold only that the district court correctly held that the

examinations at issue were a “search” for Fourth Amendment purposes, and that

the evidence in the record is at least sufficient to permit a trier of fact to conclude

that the examinations were not consensual and that it was not objectively

reasonable to believe that they were. Accordingly, it is necessary to consider

whether these examinations were otherwise “reasonable” or fell within an

exception to the warrant requirement.

3. Did the examinations fall within the “special needs” exception to the
requirement of consent or a warrant?

Not all searches lacking warrants or consent are unconstitutional under the

Fourth Amendment. The “touchstone of the Fourth Amendment is

reasonableness.” Jimeno, 500 U.S. at 250; Vernonia, 515 U.S. at 652; see also

California v. Acevedo, 500 U.S. 565, 581-83 (1991) (Scalia, J., concurring);

Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 7-

19 (1997); Telford Taylor, Two Studies in Constitutional Interpretation 24-29

-38-
(1969). The general rule is that a warrantless search conducted without consent is

“presumptively” unconstitutional unless it fits within certain narrow exceptions to

the general rule. Roska, 328 F.3d at 1040. One of those exceptions is the so-

called “special needs” doctrine. Id. at 1241.

“Special needs” is the label attached to certain cases where “special needs,

beyond the normal need for law enforcement, make the warrant and probable-

cause requirement impracticable.” Earls, 122 S.Ct. at 2565, quoting Griffin v.

Wisconsin, 483 U.S. 868, 873 (1987). In special needs cases, the Court replaces

the warrant and probable cause requirement with a balancing test that looks to the

nature of the privacy interest, the character of the intrusion, and the nature and

immediacy of the government’s interest. Id. at 2565-67. Justice Blackmun first

coined the term “special needs” in his concurrence in New Jersey v. T.L.O., 469

U.S. 325, 351 (1985). The Court thereafter adopted the terminology in O’Connor,

480 U.S. at 720, and Griffin, 483 U.S. at 873, concluding that “in limited

circumstances, a search unsupported by either warrant or probable cause can be

constitutional when ‘special needs’ other than the normal need for law

enforcement provide sufficient justification.” Ferguson, 532 U.S. at 76 n.7.

At this stage in development of the doctrine, the “special needs” category is

defined more by a list of examples than by a determinative set of criteria. Among

the cases said by the Court to involve “special needs” are: a principal’s search of

-39-
a student’s purse for drugs in school; a public employer’s search of an employee’s

desk; a probation officer’s warrantless search of a probationer’s home; a Federal

Railroad Administration regulation requiring employees to submit to blood and

urine tests after major train accidents; drug testing of United States Customs

Service employees applying for positions involving drug interdiction; schools’

random drug testing of athletes; and drug testing of public school students

participating in extracurricular activities. 10 The Supreme Court has not told us

10
See T.L.O., 469 U.S. at 341 (“[T]he accommodation of the privacy
interests of schoolchildren with the substantial need of teachers and
administration for freedom to maintain order in the schools does not require strict
adherence to the requirement that searches be based on probable cause....”);
O’Connor, 480 U.S. at 725-26 (“[P]ublic employer intrusions on the
constitutionally protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for investigation of work-
related misconduct, should be judged by the standard of reasonableness under all
the circumstances.”); Griffin, 483 U.S. at 873-74 (“A State’s operation of a
probation system, like its operation of a school, government office or prison, or
its supervision of a regulated industry, likewise presents ‘special needs’ beyond
normal law enforcement that may justify departures from the usual warrant and
probable cause requirements.”); Skinner, 489 U.S. at 620 (“The ... interest in
regulating the conduct of railroad employees to ensure safety, like its supervision
of probationers or regulated industries, or its operation of a government office,
school, or prison ... presents ‘special needs’ beyond normal law enforcement that
may justify departures from the usual warrant and probable cause requirements.”)
(citations and internal quotations omitted); Nat’l Treasury Employees Union v.
Von Raab, 489 U.S. 656, 666 (1989) (permitting drug testing by Customs Service
because of critical safety concerns and because results were not made available to
law enforcement); Vernonia, 515 U.S. at 657-58 (upholding uniform policy of
suspicionless searches of student athletes); Earls, 122 S.Ct. at 2264 (holding that
special needs “inhere in the public school context” thereby permitting drug testing
of participants in extracurricular activities).

-40-
what, precisely, this set of cases has in common, but the cases seem to share at

least these features: (1) an exercise of governmental authority distinct from that

of mere law enforcement – such as the authority as employer, the in loco parentis

authority of school officials, or the post-incarceration authority of probation

officers; (2) lack of individualized suspicion of wrongdoing, and concomitant

lack of individualized stigma based on such suspicion; and (3) an interest in

preventing future harm, generally involving the health or safety of the person

being searched or of other persons directly touched by that person’s conduct,

rather than of deterrence or punishment for past wrongdoing. It also appears

significant that each of these cases involved extraction of consent through a

threatened withholding of a benefit, rather than lack of consent. In Griffin, the

convicted felon agreed to the terms of probation as a condition to release from

incarceration; in Skinner and Von Raab, the employees agreed to drug testing as a

condition of employment; in Vernonia and Earls, the students were forced to

agree to the drug testing if they wished to participate in specified extracurricular

activities. 11 This latter factor suggests that the “special needs doctrine” is a

subspecies of the unconstitutional conditions doctrine. See Kathleen Sullivan,

11
T.L.O. may be an exception, though it might be argued that students
accept the locker searches as a condition of the benefits of a free public
education. Alternatively, T.L.O. might better be analyzed as a holding that public
school students do not have a reasonable expectation of privacy in their lockers,
vis-a-vis school officials.

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Unconstitutional Conditions, 102 Harv. L. Rev. 1413, 1433-42 (1989); Richard

Epstein, The Supreme Court, 1987 Term–Forward: Unconstitutional Conditions,

State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 92-94 (1988);

Kenneth W. Simmons, Offers, Threats, and Unconstitutional Conditions, 26 San

Diego L. Rev. 289, 291-92 (1989).

It is not clear, therefore, that the “special needs” doctrine has any place in

this case. To be sure, the Head Start agency may have been exercising a form of

in loco parentis authority; there was no individualized suspicion of wrongdoing

and hence no stigma from being singled out for a search; and the stated purpose

of the examinations was to promote the health and educational readiness of the

children. On the other hand, the claim in this case involves lack of consent rather

than compelled consent. According to the plaintiffs, CAP simply used its power

over the children to conduct the examinations. Had CAP instead required the

parents to consent to an unscheduled examination, on condition of not permitting

their children to enroll in the Head Start program, this case would more closely

resemble a classic “special needs” case.

We need not resolve whether the “special needs” doctrine applies, however,

because it is plain that, if performed without the necessary consent, the searches

were unconstitutional even if we employ the “special needs” balancing test. The

sole “special need” invoked by CAP, and accepted by the district court, was “the

-42-
‘special need’ that the physical examination of a child, ‘done in order to comply

with federal regulations, is an effective means of identifying physical and

developmental impediments in children prior to them starting school, a goal of

Head Start . . . .” Order of Granting CAP’s Motion for Summary Judgment, dated

May 16, 2001 at 7, App. 198 (ellipses in original). The district court found that

this qualified as a “special need” because “CAP is bound to follow the Head Start

regulations and those regulations require a health determination for each child. . .

. [I]t is clearly impracticable to demand adherence to the traditional warrant and

probable cause requirements considering the number of children dealt with by the

Head Start program.” Id.

We cannot agree with this logic. While it is certainly true that a properly

conducted physical examination is “an effective means of identifying physical and

developmental impediments in children,” this supplies no justification for

proceeding without parental notice and consent. The premise of the “special

needs” doctrine is that these are cases in which compliance with ordinary Fourth

Amendment requirements would be “impracticable.” Earls, 122 S.Ct. at 2564,

quoting Griffin, 483 U.S. at 873. There is no reason, however, to think that

parental notice and consent is “impracticable” in this context. On the contrary,

CAP claims to adhere to a policy of obtaining parental consent and providing

advance notice to the parents so that they can be present at the examination. The

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failure to do so in this case appears to be a product of sloppy draftsmanship (with

respect to consent forms) and carelessness (with respect to notice), rather than to

any inherent “impracticability” of compliance with ordinary Fourth Amendment

norms. 12

Nor does compliance with Head Start regulations excuse CAP’s failure to

obtain parental consent. On the contrary, the regulations expressly require Head

Start grantees to “obtain advance parent or guardian authorization” for “all health

and developmental procedures administered through the program.” 45 C.F.R. §

1304.20(e)(2). Contrary to CAP’s interpretation, the regulations do not require

them to obtain a physical examination within 90 days of enrollment. The

regulations require Head Start grantees, within 90 days of enrollment, to “make a

determination” as to whether enrolled children have an “ongoing source of

continuous, accessible health care” and whether they are “up-to-date on a

schedule of appropriate preventive and primary health care.” 45 C.F.R.

§ 1304.20(a)(1)(i), (ii). If the children are lacking in these respects, it is an

obligation of the Head Start grantee to “assist the parents in making the necessary

arrangements.” Id., § 1304.20(a)(1)(ii)(A). It is not the place of a Head Start

12
The other possible explanation is that, contrary to CAP’s protestations,
the examinations were for the purpose of detecting child abuse, and that CAP
deliberately obfuscated the consent forms and deliberately failed to provide notice
so that parents would not interfere. That possibility would raise Fourth
Amendment issues of a different order.

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agency to usurp the parental role. Indeed, to schedule medical examinations

without the knowledge of the parents would thwart the purpose of the regulations.

Examinations performed on the children without parental participation could not

reveal whether they had access to ongoing medical care or whether they were up

to date on a schedule of preventive and primary health care. To make those

“determinations,” the agency has to communicate with the parents and with the

children’s regular doctors.

For these reasons, we conclude that the “special needs doctrine” would not

excuse the failure to obtain parental consent for the examinations. We turn now

to the defenses put forward by each of the appellees.

C. Defenses

1. CAP Is Not Entitled As a Matter of Law To Immunity Under the
Monell Doctrine.

CAP argues that it is entitled to immunity from liability under the rule of

Monell v. New York City Dep’t of Social Services, 436 U.S. 658 (1978). In

Monell, the Supreme Court held that a municipality cannot be held liable under 42

U.S.C. § 1983 merely on account of the unauthorized acts of its agents. To be

liable, the municipality must have had an “official municipal policy of some

nature,” id. at 691, that was the “direct cause” or “moving force” behind the

constitutional violations. City of Oklahoma City v. Tuttle, 471 U.S. 808, 820

(1985); Pembaur v. City of Cincinnati, 475 U.S. 469, 480-85 (1986) (finding

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municipal liability even when the “policy” was evinced by a single incident). In

reliance on this line of cases, the district court held that CAP cannot be held

liable for the plaintiffs’ constitutional claims “assuming arguendo a violation

occurred.” The district court explained:

When the execution of a government’s policy or custom deprives or
violates the constitutional rights complained of by a plaintiff, the
governmental entity may be responsible for the injury under §1983 [citing
Monell]. . . . Isolated, unprecedented incidents are insufficient to create
municipal liability. No evidence has been presented of a pattern of conduct
by CAP. A municipal policy or practice must be the “direct cause” or
“moving force” behind the constitutional violation [citing Tuttle]. Jerome
Lee, Director of CAP’s Head Start program, states in his affidavit that “It is
CAP’s policy that all examinations be conducted with parental consent.”
No evidence has been presented raising a genuine issue of material fact on
this point. Again, the Court is persuaded summary judgment is appropriate
as to the constitutional claims.

Order of Granting CAP’s Motion for Summary Judgment, dated May 16, 2001 at

14-15, App. 205-6 (some citations omitted). We do not agree.

Although the Supreme Court’s interpretation of § 1983 in Monell applied to

municipal governments and not to private entities acting under color of state

law, 13 caselaw from this and other circuits has extended the Monell doctrine to

13
As a state and federal grantee, acting for the government in carrying out
a government program in accordance with government regulatons, CAP does not
challenge its status as a person “acting under color of state law.” See Milo v.
Cushing Mun. Hosp., 861 F.2d 1194, 1196-97 (10th Cir. 1988) (finding private
corporation which managed hospital liable as a state actor because liability ran
with delegation of authority); DeVargas v. Mason & Hanger-Silas Mason Co.,
Inc., 844 F.2d 714, 720-23 (10th Cir. 1988) (holding that private party acting in
(continued...)

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private § 1983 defendants. Dickerson v. Leavitt Rentals, 995 F.Supp. 1242, 1247

(D. Kan. 1998), aff’d. 153 F.3d 726 (10th Cir. 1998), cert. denied, 525 U.S. 1110

(1999); DeVargas v. Mason & Hanger-Silas Mason Co., Inc., 844 F2d 714, 722-

23 (10th Cir. 1988); see also Jackson v Illinois Medi-car Inc., 300 F.3d 760, 766

(7th Cir. 2002); Burke v. North Dakota Dep’t of Corr. & Rehab., 294 F.3d 1043,

1044 (8th Cir. 2002); Austin v. Paramount Parks, Inc., 195 F.3d 715, 729 (4th

Cir. 1999); Harvey v. Harvey, 949 F.2d 1127, 1129-30 (11th Cir. 1992); Rojas v.

Alexander’s Dep’t Store, 924 F.2d 406, 408-09 (2d Cir. 1990). Therefore, a

private actor “cannot be held liable solely because it employs a tortfeasor–or, in

other words . . . cannot be held liable under § 1983 on a respondeat superior

theory.” Monell, 436 U.S. at 691.

That principle, however, does not entitle CAP to summary judgment in this

case, because CAP’s alleged liability is direct, not vicarious. The constitutional

violation alleged in this case is the performance of medical examinations on Head

Start children on the basis of forms that would not be understood by a typical

reasonable person as constituting parental consent. CAP drafted those forms and

has defended their use, claiming that the forms were sufficient to manifest

13
(...continued)
accordance with duties imposed by government contract, when sued solely on
basis of those acts dictated by government, is implicitly subject to liability but
able to raise qualified immunity defense).

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consent. That certainly constitutes evidence sufficient to demonstrate that the

conduct complained of was the policy and practice of CAP. 14 To be sure, as the

district court pointed out, CAP officials aver that they have a policy of obtaining

parental consent before arranging examinations, but the trier of fact could

conclude that by “parental consent,” CAP means something less than the knowing

and genuine consent required by the Fourth Amendment. The plaintiffs’ evidence

supports the conclusion that, by arranging the examinations without consent, CAP

directly violated the children’s Fourth Amendment rights. The district court’s

grant of summary judgment on this ground is therefore reversed as to CAP, and

the case is remanded for further proceedings.

2. Appellee KD Was Entitled to Summary Judgment Because It Did Not
Participate Directly in the Examinations

The trial court granted summary judgment to KD, the entity that CAP has

contracted with to provide the educational component of the Tulsa Head Start

program, on the grounds that the examinations did not violate the Fourth

Amendment and that KD was not a state actor. Order of Granting KD’s Motion

for Summary Judgment, dated May 16, 2001 at 1-2, App. 178-9. We affirm the

grant of summary judgement for KD on the alternative ground that there is no

We note, also, that evidence in the record points to similar examinations
14

performed pursuant to the same defective consent forms at CAP’s Head Start
program at Wiley Post Elementary School. This is further evidence that the
occurrence at Roosevelt Elementary was not an isolated incident.

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evidence that KD directly participated in the challenged conduct. See United

States v. Corral, 970 F.2d 719, 726 n. 5 (10th Cir.1992) (holding that appellate

court may affirm for any reason supported by the law and record). KD was

responsible for the educational component of the Head Start program. KD had no

role in performance of the examinations or in arranging for notice and consent.

To the extent that any KD personnel had an incidental role in facilitating the

examinations, KD was entitled to rely on CAP’s representations that parental

consent had been obtained. Accordingly, the district court’s grant of summary

judgment to KD is affirmed.

3. The County Health Department and the Nurses Were Entitled to
Summary Judgment Because They Reasonably Relied on CAP’s
Representation That Parental Consent Had Been Obtained

The district court also granted summary judgment to the County Health

Department and to nurses Baker and Strayhorn, on the ground that it was

objectively reasonable for them to believe that the parents had given consent to

the examinations. As discussed above, the standard for measuring “objective

reasonableness” in determining the scope of consent is what a “typical reasonable

person [would] have understood by the exchange.” Jimeno, 500 U.S. at 251

(citations omitted). Here, the record demonstrates that the County Health

Department and the nurses were objectively reasonable in believing that they had

been given consent to examine the children. CAP told the County Health

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Department that CAP would obtain consent for the examinations before the

County Health Department personnel conducted the exams. Nurses Baker and

Strayhorn relied on this information. In addition, when they questioned CAP

employee, Peggy Terry, about the consent forms, she told them that she had

consent forms on file. Given these exchanges, it was objectively reasonable for

the County Health Department and nurses Baker and Strayhorn to conclude that

CAP had obtained the requisite consent for the examinations. The district court’s

granting of summary judgment to the County Health Department, Baker, and

Strayhorn on this ground is therefore affirmed. 15

III. State Common Law Claims

A. Intentional Infliction of Emotional Distress

The district court granted summary judgment to all defendants on the claim

for intentional infliction of emotional distress, also known in Oklahoma as the

tort of outrage. See Breeden v. League Services Corp., 575 P.2d 1374, 1376-77

(Okla. 1978) (discussing intentional infliction of emotional distress/outrage and

The district court granted Baker and Strayhorn’s motions to dismiss based
15

on qualified immunity grounds. However, as explained in text, there is no need to
reach the issue of qualified immunity because the nurses were objectively
reasonable in believing that CAP had obtained consent. See, e.g., United States v.
Corral, 970 F.2d 719, 726 n. 5 (10th Cir.1992) (holding in case not affirming on
immunity grounds that appellate court may affirm for any reason supported by the
law and record). Nor is it necessary to decide whether the County Health
Department has immunity for the state law tort claims under 51 O.S. §152.1(A).

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adopting standard from Restatement (Second) of Torts § 46). Under Oklahoma

law, a claim for intentional infliction of emotional distress requires a showing of

conduct

so outrageous in character, and so extreme in degree, as to be beyond
all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized community. Generally, the case is
one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead
him to exclaim, “Outrageous!”

Frank v. Mayberry, 985 P.2d 733, 776 (Okla. 1999) (quoting Restatement

(Second) of Torts § 46, cmt. d).

The district court granted summary judgment on this claim because, among

other things, the plaintiffs’ own expert opined that the examinations did not go

beyond the reasonable bounds of standard well-child examinations. Although we

have reversed the district court’s grant of summary judgment with regard to

CAP’s actions under the Fourth Amendment, we agree with the district court that

there is nothing in the record to suggest that Appellees’ actions rise to the level of

extreme outrageousness required for liability on a claim of intentional infliction

of emotional distress or outrage. The district court’s disposition of this claim is

therefore affirmed.

B. Negligent Infliction of Emotional Distress/Negligence.

Under Oklahoma law, the negligent act of causing emotional distress is not

an independent tort but rather arises under the more general tort of negligence.

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Lockhart v. Loosen, 943 P.2d 1074, 1081 (Okla. 1997). Oklahoma does not allow

recovery for negligently inflicted mental distress alone. Richardson v. J.C.

Penney Co., Inc., 649 P.2d 565, 566 (Okla. Ct. App. 1982). In order to recover

on such a claim, the alleged mental distress must be “connected to some

manifestation of physical suffering to the plaintiff. . . .” McMeakin v. Roofing &

Sheet Metal Supply Co. of Tulsa, 807 P.2d 288, 290 (Okla. Ct. App. 1990). As

evidence of physical injury in this case, the plaintiffs noted the lance inflicted

upon the children to draw the blood and the removal of the children’s clothing.

No other ongoing trauma is alleged or argued. The district court found that

imposing liability on such alleged trauma would subject medical personnel to

excessive liability under the tort of negligent infliction of emotional

distress/negligence. We have found no case suggesting that such injuries are

sufficient to support a negligent infliction of emotional distress claim, and we

therefore agree with the district court, and affirm its decision.

C. Assault/Battery

The Amended Complaint alleged both assault and battery claims. All

defendants were granted summary judgment on these claims. While the plaintiffs

have pursued their battery claim to some extent, they have failed to brief the issue

of assault. This Court has held that “issues will be deemed waived if they are not

adequately briefed” on appeal. Utahns for Better Transp., 305 F.3d at 1175,

-52-
citing Phillips, 956 F.2d at 954 (deeming such claims “waived under the general

rule that even issues designated for review are lost if they are not actually argued

in the party’s brief”). Accordingly, there is no need to review the district court’s

decision on the assault claim on the merits. See Murrell, 43 F.3d at 1389 n.2.

Under Oklahoma law, in order to establish a claim of battery, a plaintiff

must prove that: 1) a defendant, without consent, acted either with the intent of

making a harmful or offensive contact with the plaintiff or with the intent of

putting the plaintiff in apprehension of such a contact; and 2) the defendant’s act

resulted in a harmful or offensive contact with the plaintiff. See OUJI Civ. Inst.

19.6. If medical treatment is unauthorized and performed without consent, the

result is a “technical battery.” Rosson v. Coburn, 876 P.2d 731, 734 (Okla. Ct.

App. 1994); see also Scott v. Bradford, 606 P.2d 554, 557 (Okla. 1980); Rolater v

Strain, 137 P. 96, 97 (Okla. 1913). “A ‘technical battery’ occurs when a

physician, in the course of treatment, exceeds the consent given by the patient.”

Rosson, 876 P.2d at 734 n.6 quoting Black’s Law Dictionary at 153 (6th ed.

1990).

“Consent,” for tort liability purposes, “is willingness in fact for conduct to

occur. It may be manifested by action or inaction and need not be communicated

to the actor.” Restatement (Second) of Torts § 892(1). “If words or conduct are

reasonably understood by another to be intended as consent, they constitute

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apparent consent and are as effective as consent in fact.” Id. at § 892(2).

Consent can also be either “apparent” or found to be implied by “custom.” Id. at

cmts. c, d. “Apparent consent” is present when “the words or acts or silence and

inaction [of the aggrieved party] would be understood by a reasonable person as

intended to indicate consent and they are in fact so understood by the other.” Id.,

cmt. c. “In determining whether conduct would be understood by a reasonable

person as indicating consent, the customs of the community are to be taken into

account.” Id., cmt. d.

The district court found no battery present in this case because it “found no

decision in which a recognized procedure performed in the standard manner in a

physical examination constitutes a harmful or offensive touching. . . .” Order

Granting CAP’s Motion for Summary Judgment, dated May 16, 2001 at 16, App.

207. It seems that the district court came to this conclusion after considering that

the plaintiffs’ expert said that the exam was in conformity to well-child exams.

The district court was correct in this conclusion. However, this analysis ignores

the fact that under Oklahoma law a technical battery occurs when medical

personnel treat patients without consent. Presumably, what makes such contact

“offensive” for purposes of liability for technical battery is the fact that the

procedure is performed without consent.

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 As discussed above, both County Health Department and nurses Strayhorn

and Baker were assured by CAP that proper consent had been obtained for the

examinations. Strayhorn and Baker were assured by Peggy Terry that the proper

consent forms were on file. “Consent” in the legal sense is present as to these

defendants because, according to undisputed evidence in this case, it is the

custom of the industry to rely on assurances from other health care professionals

that proper consent has been obtained. The testimony of the plaintiffs’ expert,

advanced as a specialist in customs of the industry, supports this conclusion. The

expert was asked “can you . . . agree that if you are informed that there are signed

consent forms of the parents, that under that scenario, it is reasonable to

proceed?”; he replied: “Yeah. I think there’s a bit of a problem when you, you

know, are an outside provider of services.” This testimony demonstrates that it is

customary to rely on such consent. Therefore, Baker and Strayhorn committed no

battery because they had legal consent by custom, thus negating a claim for

technical battery. The district court’s disposition of the battery claim against the

nurses is therefore affirmed.

The district court granted summary judgment to CAP on the battery claim

on the ground that CAP had consent to arrange the examinations and that the

examinations themselves did not deviate from the industry standard of care.

ORDER of Granting CAP’s Motion for Summary Judgment, dated May 16, 2001

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at 16-7, App. 207-8. As discussed above, however, the plaintiffs have submitted

sufficient evidence to withstand a motion for summary judgment regarding

whether CAP had objectively reasonable grounds to believe that it had consent to

authorize the examinations. For the same reason, summary judgment must be

reversed with respect to CAP’s alleged technical battery under Oklahoma law.

D. Invasion of Privacy

The plaintiffs’ invasion of privacy is based on a theory of intrusion upon

seclusion, one of the four branches of the tort of invasion of privacy. See

generally Restatement (Second) of Torts §§ 652A-E (describing four branches of

invasion of privacy tort); Warren & Brandeis, The Right of Privacy, 4 Harv. L.

Rev. 193 (1980) (describing common law foundation for invasion of privacy tort);

William L. Prosser, Privacy, 48 Cal. L. Rev. 383 (1960) (describing four branches

of privacy tort). The Oklahoma Supreme Court has held that there are two

necessary elements to an intrusion upon seclusion claim: 1) a nonconsensual

intrusion, 2) which is highly offensive to a reasonable person. Gilmore v.

Enogex, Inc., 878 P.2d 360, 366 (Okla. 1994).

As to the first of these elements, we have already determined that the

plaintiffs have presented evidence supporting lack of consent. As to the second,

basing its conclusion on the fact that the Plaintiffs’ own medical expert concluded

the examinations did not deviate from the standards for a well-child examination,

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the district court held that the “intrusion” in this case would not be highly

offensive to a reasonable person. Order Granting CAP’s motion for Summary

Judgment, dated May 16, 2001 at 17, App. 208. We have found no Oklahoma

precedent that leads us to conclude that what is “offensive to the reasonable

person” depends upon whether the examination complied with standards for a

well-child examination, rather than an evaluation of the time, place, manner, and

substance of the examination. Such a determination of reasonableness is

classically reserved for resolution by the trier of fact. Thus, on both of these

points, we must remand for determination of possible liability as to CAP.

Because the district court found that the intrusion was consensual and not

offensive as a matter of law, it did not address the further element set forth in the

language of the Restatement, which Oklahoma has adopted, regarding intent.

“One who intentionally intrudes, physically or otherwise, upon the solitude or

seclusion of another, or his private affairs or concerns, is subject to liability to the

other for invasion of his privacy, if the intrusion would be highly offensive to a

reasonable person.” Munley v. ISC Fin. House, Inc., 584 P.2d 1336, 1339-40

(Okla. 1978) (quoting Restatement (Second) of Torts § 652B and explicitly

adopting standard). Cases from other circuits that directly address the issue of

intent explain that “[a]n intrusion occurs when an actor ‘believes, or is

substantially certain, that he lacks the necessary legal or personal permission to

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commit the intrusive act.’” Fletcher v. Price Chopper Foods of Trumann, Inc.,

220 F.3d 871, 876 (8th Cir. 2000) (quoting O’Donnell v. United States, 891 F.2d

1079, 1083 (3d Cir. 1989)). This analysis originates in an interpretation of

Pennsylvania law, but we find its analysis of Restatement sections 652B and 8A

persuasive and we believe the Oklahoma Supreme Court would as well. Thus, on

remand, CAP’s intent under this standard will need to be addressed.

As discussed above, however, based on industry custom it was reasonable

for the nurses and the County Health Department to believe that they had consent

to perform the examinations. As a result, under the facts here, the nurses and the

County Health Department lacked the requisite intent as a matter of law for

liability under a theory of intrusion upon seclusion. The district court’s judgment

for nurses Baker and Strayhorn and the County Health Department on the invasion

of privacy claim is therefore affirmed. The district court’s disposition of this

claim as to CAP is reversed and remanded for a determination of whether the

intrusion was nonconsensual, whether CAP’s actions were highly offensive to a

reasonable person, and whether CAP acted with the requisite intent, such that it

should be liable for intrusion upon seclusion.

E. Medical Malpractice/Negligence

The trial court correctly determined that, as a general matter, medical

malpractice encompasses the breach of a duty which a physician, by virtue of his

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or her relationship to the patient, owes to exercise reasonable care in treatment.

Order Granting County Health Department’s Motion for Summary Judgment,

dated May 16, 2001, at 4, App. 190, citing Daniels v. Gilbreath, 668 F.2d 477,

488 (10th Cir. 1982). A physician-patient relationship is essential to a medical

malpractice action. See generally Greenberg v. Perkins, 845 P.2d 530, 534-36

(Colo. 1993) (en banc) (surveying and collecting state and federal cases so

holding); cf. Johnson v. Fine, 45 P.3d 441, 445 (Okla. Ct. App. 2002) (declining

to extend malpractice actions beyond the immediate doctor-patient relationship).

On appeal, the plaintiffs do not challenge the district court’s dismissal of this

claim as to CAP.

With regard to the conduct of the nurses in this case the existence of a

physician-patient relationship is immaterial because, as the plaintiffs’ own expert

points out, neither Strayhorn nor Baker deviated from the requisite standard of

care. The examinations conformed to standards for well-child examinations and,

as discussed above, they followed customary industry practices in relying on the

representations of CAP that consent for the examinations had been given. It is

true that the plaintiffs’ expert testified that the consent forms themselves were

insufficient, but this does not change the fact that Baker, Strayhorn, and the

County Health Department were acting reasonably and within the norms of

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industry practice when they relied upon CAP’s representations. The district

court’s decision regarding medical malpractice/negligence is therefore affirmed.

IV. Costs

In granting summary judgment in favor of the defendants below, the district

court ordered the plaintiffs to pay costs. While it may sometimes be appropriate

to award costs against low-income plaintiffs bringing a suit under the civil rights

laws, this should be done with caution. Since we now reverse the grant of

summary judgment in substantial part, that order must also be reversed and the

issue of costs remanded to the district court. See Delano v. Kitch, 663 F.2d 990,

1001 (10th Cir. 1981); Amarel v. Connell, 102 F.3d 1494, 1523 (9th Cir. 1997)

(citing Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964)).

Conclusion

For the reasons set forth above, we affirm the trial court’s dismissal or

grant of summary judgment on all claims with the following exceptions. First, we

reverse the trial court’s grant of summary judgment to CAP on the Fourth

Amendment, technical battery, and invasion of privacy claims. We also reverse

the trial court’s dismissal of the parents’ Fourteenth Amendment claim against

CAP regarding interference with their constitutional right to direct and control the

medical treatment of their children. We reverse the district court’s award of costs

-60-
as well, and remand the case to the district court for proceedings consistent with

this decision.

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