Adrian King, Jr. v. Jim Rubenstein

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6382

ADRIAN F. KING, JR.,

Plaintiff - Appellant,

v.

JIM RUBENSTEIN, Commissioner; MARVIN C. PLUMLEY, Warden;
DIANNE R. MILLER, Associate Warden Programs/Housing;
SERGEANT GROVER ROSENCRANCE, Deputy Warden; LESTER THOMPSON,
Unit Manager E-1 Segregation; SHERRI DAVIS, Unit Manager
E-2 Segregation; STACY SCOTT, Supervised Psychologist/Ad
Seg Board; MIKE SMITH, SR., Unit Manager Ad Seg Board;
SAMANTHA GSELL, Case Manager Ad Seg Board; ADAM SMITH, Unit
Manager/Ad Seg Board Chairman; CLIFF GOODIN, Head
Psychologist, in their official and personal capacities,

Defendants - Appellees.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cv-00042-GMG-JSK)

Argued: January 27, 2016 Decided: June 7, 2016

Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.

Affirmed in part, reversed, vacated, and remanded in part by
published opinion. Judge Gregory wrote the opinion, in which
Judge Duncan and Judge Floyd joined.

ARGUED: Tennille Jo Checkovich, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant. Natalie C. Schaefer, SHUMAN, MCCUSKEY
& SLICER, PLLC, Charleston, West Virginia, for Appellees. ON
BRIEF: Michael W. Stark, MCGUIREWOODS LLP, Richmond, Virginia,
for Appellant. Kimberly M. Bandy, SHUMAN, MCCUSKEY & SLICER,
PLLC, Charleston, West Virginia, for Appellees Jim Rubenstein,
Marvin C. Plumley, Dianne R. Miller, Grover Rosencrance,
Lester Thompson, Sherri Davis, Mike Smith, Sr., Samantha Gsell,
and Adam Smith.

2
GREGORY, Circuit Judge:

Adrian F. King, Jr. appeals the district court’s dismissal

of his complaint for failure to state a claim. King filed suit

under 42 U.S.C. § 1983 against several correctional officers,

medical personnel, and prison administrators for alleged

violations of his constitutional rights after he underwent

surgery to remove penile implants while incarcerated. We

conclude that King’s complaint properly stated his Fourth,

Eighth, and Fourteenth Amendment Equal Protection and Due

Process claims. We also hold that King stated a claim against

Marvin Plumley. We reverse the district court’s decision on

those bases, vacate the dismissal, and remand the case for

further proceedings. We affirm the dismissal as to Stacy Scott,

Cliff Goodin, and Jim Rubenstein, but modify the dismissal of

the latter two to be without prejudice.

I.

In reviewing a dismissal for failure to state a claim, we

accept as true all of the factual allegations contained in the

complaint and draw all reasonable inferences in favor of the

plaintiff. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,

637 F.3d 435, 440 (4th Cir. 2011). We may consider additional

documents attached to the complaint or the motion to dismiss “so

long as they are integral to the complaint and authentic.”

3
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.

2009). Here, we look to King’s complaint, including his

attached statement of claims, and his notice of claim, including

the grievance attachment, all filed pro se, in laying out the

following factual allegations.

a.

King is an inmate at Huttonsville Correctional Center

(“HCC”) and has been incarcerated since March 23, 2012. In fall

2008, prior to his incarceration, King had marbles implanted in

and tattoos drawn on his penis. He and his then fiancée, who is

now deceased, decided to have the implants done during the “body

modification” craze, as they had heard about the

“intensification of sensitivity and euphoric climaxes” resulting

from the procedure. J.A. 16.

On January 8, 2013, King was called to the control booth in

his unit, where a corrections officer told him to report to

“medical” to be examined. Id. at 25. King was to be examined

because an inmate reported seeing King and another inmate

implanting marbles into their penises. The nurse who examined

King verified that the marbles were not recently implanted and

that there was no sign of infection.

King was escorted to the segregation unit, where an officer

told him that the implants were not noted in his file. King

responded that when he was being processed at Mt. Olive, he

4
informed the processing officer of the marbles and tattoo. The

officer told him, “This isn’t a pornographic camera, put [your]

clothes back on.” Id.

King was subsequently found in violation of Policy

Directive 325.00-1.26, which prohibits exposing body fluids,

tattoos, and piercings. The policy states:

1.26—Exposing Body Fluids/Tattooing/Piercing: No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give
him/her a tattoo/piercing. No inmate shall possess
any tattooing/piercing equipment, to include,
tattooing ink, tattooing patterns, tattooing needles,
etc.
King Br. 24. Due to this violation, King was sentenced to sixty

days of punitive segregation, sixty days loss of privileges, and

ninety days of loss of good time.

While King was in segregation, Sherri Davis, the unit

manager of segregation unit E-2, brought King to her office.

There, she had King sign a piece of paper without giving him the

opportunity to read it. Davis told him that he was signing

consent papers to go to Ruby Memorial Medical Center to have a

doctor examine his implants and, if necessary, remove them.

King was taken to Ruby Memorial, where he was examined by Dr.

Henry Fooks, Jr. Fooks determined that the implants were not

recently inserted and that there was no medical need to remove

them. When King was transported back to HCC, Deputy Warden

5
Grover Rosencrance told him, “Get comfortable you stupid Son of

a Bitch, you’ll be placed in Administrative Segregation until

you do as I say and have those marbles removed.” J.A. 26. King

responded that Rosencrance could not punish him twice for the

same violation. Rosencrance said, “I can do what the Fuck I

want.” Id. King was then returned to administrative

segregation. King alleges that HCC officials threatened him

with segregation for the remainder of his sentence and loss of

parole eligibility if he did not consent to surgery.

On June 19, 2013, King “gave in” and let them remove the

marbles at Ruby Memorial. Id. The surgery was done

“practically against [his] will as [he] was coerced by the

administration because of the threats they made” about continued

segregation and loss of parole eligibility. Id. at 31.

As a result of the surgery, King now experiences physical

symptoms. He has tingling and numbness in his penis; pain in

the area where the marbles were removed; an “uncomfortable,

stretching feeling where the cut was made”; pain in his penis

when it rains, snows, or gets cold; and “stabbing pain [that]

shoots into [his] stomach” if he bumps into something or the

scar on his penis is touched. Id. at 15, 27. King never

experienced these symptoms until after his implants were

removed.

6
 King also experiences mental and emotional anguish as a

result of the surgery. He gets “very depressed every time [he]

shower[s] or urinate[s]” because he sees the scarring and is

reminded of his deceased fiancée. Id. at 15. He worries about

“the possibilities that [his] penis will still be numb when [he]

. . . is with another woman” and about how he will explain what

happened if in the future someone is “sickened by the scarring.”

Id. at 16. Additionally, King is unable to urinate when any of

his five roommates are in the cell with him, a problem he did

not previously experience. He is also frightened every time he

sees any of the defendants. He is ridiculed by the staff: they

refer to him as “Marble Man” and when they search him, they ask

where his marbles are. Id. at 15. Correctional officers make

“[h]omosexual remarks” when they see him. Id. He also now has

gay inmates approach him, because of the way the staff have

gossiped about him. These inmates ask him questions that make

him feel uncomfortable and “place [him] in a compromising

situation, where it is a strong possibility that a physical

confrontation” might occur. Id. at 17.

b.

King originally filed suit under 42 U.S.C. § 1983 in the

Circuit Court of Kanawha County, West Virginia. His complaint

named as defendants Jim Rubenstein (Commissioner), Warden Marvin

Plumley, Dianne R. Miller (Associate Warden Programs/Housing),

7
Deputy Warden Rosencrance, Lester Thompson (Unit Manager E-1

Segregation), Sherri Davis, Stacy Scott (Supervised

Psychologist/Ad Seg Board), Mike Smith, Sr. (Unit Manager, Ad

Seg Board), Samantha Gsell (Case Manager Ad Seg Board), Adam

Smith (Unit Manager Ad Sec Board Chairman), and Cliff Goodin

(Head Psychologist). A circuit court judge in the Circuit Court

of Kanawha County, West Virginia, reviewed the initial pleadings

and found that the complaint was not “frivolous, malicious or

fails to state a claim,” and accordingly had the clerk issue

process against the defendants. Id. at 33. The defendants

removed the case to the U.S. District Court for the Southern

District of West Virginia and moved to dismiss under Federal

Rule of Civil Procedure 12(b)(6). The case was transferred to

the Northern District of West Virginia, where a magistrate judge

entered his report and recommendation on the motion to dismiss.

Both sides filed objections; only the defendants filed

responses. The district court rejected in part and adopted in

part the magistrate’s recommendation and granted the defendants’

motion to dismiss in full. King timely appeals.

II.

This Court reviews de novo the grant of a motion to

dismiss. Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d

754, 768 (4th Cir. 2011). A Rule 12(b)(6) motion tests the

8
sufficiency of a complaint; it does not, however, “resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Edwards v. City of Goldsboro, 178

F.3d 231, 243 (4th Cir. 1999) (quoting Republican Party v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992)). To survive a motion

to dismiss, the complaint’s “[f]actual allegations must be

enough to raise a right to relief above the speculative level”—

that is, the complaint must contain “enough facts to state a

claim for relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Bare legal

conclusions “are not entitled to the assumption of truth” and

are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009). Nevertheless, pro se pleadings are “to be

liberally construed,” and “a pro se complaint, however

inartfully pleaded, must be held to less stringent standards

than formal pleadings drafted by lawyers.” Erickson v. Pardus,

551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,

106 (1976)).

III.

King appeals the dismissal of his substantive claims, as

well as the dismissal of Scott, Plumley, Rubenstein, and Goodin.

9
 a.

King first claims that the district court improperly

dismissed his Fourth Amendment claim. The Fourth Amendment

protects “[t]he right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S.

Const. amend. IV. The applicability of the Fourth Amendment

turns on whether “the person invoking its protection can claim a

‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of

privacy’ that has been invaded by government action.” Hudson v.

Palmer, 468 U.S. 517, 525 (1984) (quoting Smith v. Maryland, 442

U.S. 735, 740 (1979)).

In Hudson, the Supreme Court held that an inmate has no

reasonable expectation of privacy, and thus no Fourth Amendment

protection, in his prison cell, given “the paramount interest in

institutional security.” Id. at 528. While “imprisonment

carries with it the circumscription or loss of many significant

rights,” the Supreme Court nevertheless cautioned that “prisons

are not beyond the reach of the Constitution.” Id. at 523-24.

Indeed, five years earlier in Bell v. Wolfish, 441 U.S. 520

(1979), the Supreme Court “developed a flexible test to

determine the reasonableness of a broad range of sexually

invasive searches . . . .” United States v. Edwards, 666 F.3d

877, 883 (4th Cir. 2011) (citation and internal quotation marks

omitted). Under Wolfish, a court is to consider the following

10
factors to determine the reasonableness of the search: “the

scope of the particular intrusion, the manner in which it is

conducted, the justification for initiating it, and the place in

which it is conducted.” 441 U.S. at 559.

This Court has previously “assum[ed] that the Fourth

Amendment continues to apply to lawfully confined prisoners”

before weighing the competing interests to determine the

reasonableness of a search. E.g., Jones v. Murray, 962 F.2d

302, 307 (4th Cir. 1992). As the district court noted, “nothing

in Hudson indicates the Supreme Court intended to abrogate a

prisoner’s expectation of privacy beyond his cell.” J.A. 171.

And we agree with our sister circuits that, under Wolfish,

prisoners retain an interest in some degree of bodily privacy

and integrity after Hudson. See King v. McCarty, 781 F.3d 889,

900 (7th Cir. 2015) (per curiam) (“Even in prison, case law

indicates that the Fourth Amendment protects, to some degree,

prisoners’ bodily integrity against unreasonable intrusions into

their bodies.”); Sanchez v. Pereira-Castillo, 590 F.3d 31, 42 &

n.5 (1st Cir. 2009) (“We have recognized that a limited right to

bodily privacy against searches is not incompatible with

incarceration.”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.

1997) (“Notwithstanding the language in Hudson, our circuit has

held that the Fourth Amendment right of people to be secure

against unreasonable searches and seizures extends to

11
incarcerated prisoners . . . .” (internal quotations omitted));

Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir. 1994) (same);

Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[A]

convicted prisoner maintains some reasonable expectations of

privacy while in prison . . . even though those privacy rights

may be less than those enjoyed by non-prisoners.”); Covino v.

Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite

Hudson, “inmates do retain a limited right to bodily privacy”);

Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same);

Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish

and applying traditional Fourth Amendment analysis to prisoner’s

claim). Accordingly, King maintains some legitimate expectation

of privacy in his person.

We hold that the Wolfish factors weigh against

reasonableness and thus reverse the district court’s dismissal

of King’s complaint. As to the first factor, the scope of the

intrusion, the surgery was beneath the skin into a sensitive,

private body part—it was certainly not “commonplace.” See

Sanchez, 590 F.3d at 45. Unlike the blood test in Schmerber v.

California, 384 U.S. 757 (1966), this surgery involved “risk,

trauma, [and] pain”: King alleged scarring and botched

incisions, pain and tingling, and emotional anguish. See 384

U.S. at 771; see also Winston v. Lee, 470 U.S. 753 (1985)

(holding, outside of the prison context, that Virginia could not

12
compel surgery to remove a bullet from a suspect’s chest, in

part because of the risk, trauma, and pain involved in the

procedure); Sanchez, 590 F.3d at 45 (finding scope egregious

where plaintiff alleged that he was “slashed and mutilated”

during surgery, that his “life and health were jeopardized,” and

that he experienced “severe physical and emotional pain” as a

result). The interest in bodily integrity involves the “most

personal and deep-rooted expectations of privacy,” Lee, 470 U.S.

at 760, and here, the nature of the surgery itself—surgery into

King’s penis—counsels against reasonableness.

The district court acknowledged the “unusual” nature of the

surgery but found that King “precipitated [it] by electing the

unusual insertion of marbles into his penis” in the first

instance. J.A. 177. That King decided to have marbles inserted

into his penis, however, is of no moment; the scope of the

intrusion is not a subjective inquiry. See, e.g., United States

v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015) (finding the scope

suggested unreasonability where officers physically extracted a

plastic bag containing contraband from defendant’s rectum,

making no mention that defendant had presumably inserted it

himself); Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir.

1991) (finding a warrant-authorized vaginal-cavity search

“extreme,” again not considering that plaintiff inserted the

13
contraband herself). We find the scope of the intrusion

objectively extreme.

The second factor, the manner in which the search was

conducted, also favors finding the search unreasonable. “[O]nce

contraband is discovered in the course of a sexually invasive

search, the contraband may not be seized in a manner that poses

an unnecessary risk of harm to the person being searched.”

Edwards, 666 F.3d at 885. Again, King alleged that the surgery

left him scarred, with pain and emotional anguish. We agree

with the district court that “the surgery posed a risk to King’s

health and caused him trauma and pain.” J.A. 176.

Turning to the third factor, the defendants correctly

contend that they have an interest in controlling contraband

within the prison for the health and security of the inmates.

The Supreme Court has long recognized the need to “guarantee the

safety” of the prison community, administrators, inmates, and

visitors alike. Hudson, 468 U.S. at 527. Indeed, “prison

administrators . . . , and not the courts, [are] to make the

difficult judgments concerning institutional operations.”

Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Jones v. N.C.

Prisoners’ Union, 433 U.S. 119, 128 (1977)) (alterations in

original). “In addressing this type of constitutional claim

courts must defer to the judgment of correctional officials

unless the record contains substantial evidence showing their

14
policies are an unnecessary or unjustified response to problems

of jail security.” Florence v. Bd. of Chosen Freeholders of

Cty. of Burlington, 132 S. Ct. 1510, 1513-14 (2012).

Nevertheless, searches conducted “in an abusive fashion

. . . cannot be condoned.” Wolfish, 441 U.S. at 560 (internal

citation omitted). Instead, the “‘deference’ that is afforded

to prison administrators ‘does not insulate from review actions

taken in bad faith and for no legitimate purpose.’” Williams v.

Benjamin, 77 F.3d 756, 765 (4th Cir. 1996) (quoting Whitley v.

Albers, 475 U.S. 312, 322 (1986)) (considering an Eighth

Amendment claim); see also Hudson, 468 U.S. at 528

(“[I]ntentional harassment of even the most hardened criminals

cannot be tolerated by a civilized society.”).

Throughout his complaint, King stated that the defendants

had no penological justification in the surgery, J.A. 16, 18,

and provided facts that support this contention. First, he

alleged that the marbles were implanted prior to incarceration

(an allegation supported by the findings of the two medical

professionals who inspected the marbles). This, he argues, is

inconsistent with the policy directive that he was found in

violation of:

1.26—Exposing Body Fluids/Tattooing/Piercing: No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give

15
 him/her a tattoo/piercing. No inmate shall possess
any tattooing/piercing equipment, to include,
tattooing ink, tattooing patterns, tattooing needles,
etc.

Id. at 24. While the defendants contested the timing of the

insertion of King’s implants at oral argument, at this stage, we

draw all reasonable inferences in King’s favor. E.I. du Pont de

Nemours & Co., 637 F.3d at 440. Accordingly, King already had

the implants and was not exposing blood by inserting the marbles

at the time of the violation.

King also alleged that other prisoners “implanted foreign

objects into their penises,” but unlike King, they have been

permitted to keep them. J.A. 27. King noted that some of these

inmates have “even had it done while incarcerated.” Id. at 17.

The defendants point to King’s examples of other inmates as

proof that this practice is not an isolated occurrence,

contending that “inmates have now devised an additional place to

potentially conceal contraband: beneath their skin.”

Appellees’ Br. 18-19. King alleges, however, that the staff

knew of this behavior and “caught, charged and convicted” other

inmates but did not require them to surgically remove their

implants. J.A. 17. These allegations contradict the

defendants’ arguments that prison officials are to detect and

prevent this behavior and that a general ban is preferable to

carving out exceptions for individual inmates. Appellee’s Br.

16
19-20 (citing Florence, 132 S. Ct. at 1516; Hudson, 468 U.S. at

527). And while not conclusive, these allegations lend support

to King’s argument that the officers’ actions here were meant to

harass.

Finally, the argument that King consented to the surgery

does not provide cover for the defendants. As in Sanchez, King

raised allegations that his consent was not freely given. E.g.,

J.A. 15 (“I was threatened with Administrative Segregation until

I discharge my sentence, if I did not consent to the surgery to

have my ‘Professionally Implanted Marbles’ removed.”); id. at

25-26 (describing under what conditions he was placed in

segregation, including keeping him in segregation “under ‘False

Pretenses’”); id. at 27 (“I was FORCED with the use of MENTAL

TORTURE and UNLAWFUL SEGREGATION to remove my implants that were

professionally done.”); see Sanchez, 590 F.3d at 46-47.

“‘Consent’ that is the product of official intimidation or

harassment is not consent at all.” Florida v. Bostick, 501 U.S.

429, 438 (1991). Based on King’s complaint, his consent to

surgery was not “voluntarily given, and [instead] the result of

duress or coercion, express or implied.” Schneckloth v.

Bustamonte, 412 U.S. 218, 248 (1973).

While prison officials must be afforded wide deference in

deterring security threats, the pleadings raise sufficient

concerns about the legitimacy of the reasons for surgery. This

17
is doubly so where defendants sought “to intrude upon an area in

which our society recognizes a significantly heightened privacy

interest,” requiring “a more substantial justification” to make

the search “reasonable.” Lee, 470 U.S. at 767. Thus, at this

early stage of the proceedings, we find that the justification

for the search weighs in favor of unreasonableness.

The fact that the search occurred in a hospital does not

trump the overwhelming evidence that the search was

unreasonable. Accordingly, we reverse the district court’s

dismissal of King’s claim and hold that he pleaded sufficient

facts to establish a Fourth Amendment claim plausibly entitling

him to relief.

b.

King next appeals the dismissal of his Eighth Amendment

claim. The Eighth Amendment “prohibits the infliction of ‘cruel

and unusual punishments’ on those convicted of crimes.” Wilson

v. Seiter, 501 U.S. 294, 297 (1991). “[T]o make out a prima

facie case that prison conditions violate the Eighth Amendment,

a plaintiff must show both ‘(1) a serious deprivation of a basic

human need; and (2) deliberate indifference to prison conditions

on the part of prison officials.’” Strickler v. Waters, 989

F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin,

952 F.2d 820, 824 (4th Cir. 1991)). The first prong is

objective and requires that the deprivation be “sufficiently

18
serious”; the second requires us to determine whether

subjectively “the officials act[ed] with a sufficiently culpable

state of mind.” Wilson, 501 U.S. at 298; see Strickler, 989

F.3d at 1379.

We hold that King’s complaint plausibly satisfies both

prongs of an Eighth Amendment claim and reverse the district

court. Regarding the first prong, King alleged physical injury

and mental anguish, which he “never experienced until after [he]

was FORCED into having [his] implants removed . . . or remaining

in Segregation INDEFINATELY [sic].” J.A. 27. These include

tingling and numbness in his penis; pain in the area where the

marbles were removed; an “uncomfortable, stretching feeling

where the cut was made;” pain in his penis when it rains, snows,

or gets cold; and “stabbing pain [that] shoots into [his]

stomach” if he bumps into something or his penis is touched

where the scar is. Id. at 15, 27. King also gets “very

depressed every time [he] shower[s] or urinate[s]” because he

sees the scarring and is reminded of the marbles that his

deceased fiancée bought for him. Id. at 15. He worries about

“the possibilities that [his] penis will still be numb when [he]

. . . is with another woman” and about how he will explain what

happened if someone is “sickened by the scarring.” Id. at 16.

He is now unable to urinate when any of his five roommates are

in the cell with him, a problem he did not previously

19
experience. Id. at 15. He is also frightened every time he

sees any of the defendants. Id. King claims that he is

“constantly ridiculed by staff”: they call him “Marble Man” and

ask where his marbles are. Id. Guards also “make Homosexual

remarks that entail [his] marbles when they see [him].” Id. He

now has “[g]ay inmates approaching [him] because the staff that

was involved in forcing [him] to have the surgery, have

continually gossiped” about him. Id. at 16. These inmates ask

him questions that are “very uncomfortable” and put him in a

“compromising situation, where it is a strong possibility that a

physical confrontation” will occur. Id. at 17. These facts are

sufficient to support a finding of serious injury.

In dismissing the claim, the district court read too

narrowly the extent of King’s harm. The court pointed to our

decision in Allgood v. Morris, 724 F.2d 1098 (4th Cir. 1984),

for the proposition that segregated confinement is not

unconstitutional. The court also concluded that any harm to

King resulted only from the surgery, not from his segregation.

This reliance on Allgood is misplaced. Indeed, we stated,

“[S]egregated confinement is not per se unconstitutional.”

Allgood, 724 F.2d at 1101 (citing Sweet v. S.C. Dep’t of Corr.,

529 F.2d 854, 860 (4th Cir. 1975)). But that very language is

fatal to the district court’s conclusion. Segregation, by

itself, is not the harm King alleged in his complaint. Cf.

20
Sweet, 529 F.2d at 861 (“[Certain] inescapable accompaniments of

segregated confinement[] will not render segregated confinement

unconstitutional absent other illegitimate deprivations.”

(emphasis added)).

In his complaint, King provides that his Eighth Amendment

claim was based on more than the confinement itself: “The Staff

at [HCC] Abused their power when they took it upon themselves to

use threats of Administrative Segregation for the remainder of

my sentence and loss of Parole Eligibility in order to

intimidate me into consenting to a surgery that they had no

right to have performed.” J.A. 16; see id. at 15, 25-27

(describing threats of administrative segregation until

discharge of sentence, as well as sentence of punitive

segregation, loss of privileges, and loss of good time for

violation of policy directive). Put another way, King alleges

more than segregation per se as his Eighth Amendment violation;

instead, the confinement itself was used as a tool to coerce

King into consenting to surgery, which in turn resulted in

physical and mental injuries. This harm resulting from the

coerced surgery, of which the segregation was a part, is

sufficient to satisfy the first prong of an Eighth Amendment

violation.

As to the second prong, only the “unnecessary and wanton

infliction of pain” implicates the Eighth Amendment. Wilson,

21
501 U.S. at 297 (quoting Estelle, 429 U.S. at 104) (emphasis

omitted). The requisite state of mind is thus “one of

deliberate indifference to inmate health or safety.” Odom v.

S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (citation

and internal quotation marks omitted). While “deliberate

indifference entails something more than mere negligence, the

cases are also clear that it is satisfied by something less than

acts or omissions for the very purpose of causing harm or with

knowledge that harm will result.” Farmer v. Brennan, 511 U.S.

825, 835 (1994).

“Among ‘unnecessary and wanton’ inflictions of pain are

those that are ‘totally without penological justification.’”

Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.

Georgia, 428 U.S 153, 183 (1976)). A prisoner states a claim

under the Eighth Amendment when he plausibly alleges that the

conduct in question “was motivated by a desire to harass or

humiliate rather than by a legitimate justification, such as the

need for order and security.” King, 781 F.3d at 897 (citing

cases); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002)

(discussing “taunting” and “humiliation” as circumstances that

contributed to finding that unnecessarily handcuffing prisoner

to a hitching post “violated the ‘basic concept underlying the

Eighth Amendment[, which] is nothing less than the dignity of

man’” (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)

22
(alterations in original)); Hudson, 468 U.S. at 530

(underscoring that the Eighth Amendment protects against

“calculated harassment unrelated to prison needs”).

In King, the Seventh Circuit reversed a district court’s

dismissal of an inmate’s claim that being forced to wear a

transparent jumpsuit during his transfer violated the Eighth

Amendment. 781 F.3d at 896. The court pointed to the

plaintiff’s allegations that he was “degraded and humiliated by

being transported in a see-through jumpsuit that left him

exposed . . . .” Id. at 898. The plaintiff’s assertion that

“there was no legitimate reason for this policy” was supported

by his allegation, among others, that other inmates were not

required to wear similar garments. Id. The court cautioned,

“Even where prison authorities are able to identify a valid

correctional justification for the search, it may still violate

the Eighth Amendment if conducted in a harassing manner intended

to humiliate and cause psychological pain.” Id. at 897

(citation and internal quotation marks omitted).

Here, King alleged that there was “absolutely NO security

interest” in removing his implants, J.A. 16; see also id. at 18

(“There was absolutely NO penological interest in forcing the

Petitioner to consent to the surgery.”), and supports this

contention with factual allegations. The removal was not

medically necessary: the nurse who first examined him confirmed

23
that the marbles were not recently implanted and there was no

sign of infection, and the doctor he saw confirmed this. Id. at

25-26. Further, King alleges that other prisoners have

“implanted foreign objects into their penises,” but unlike King,

they have been permitted to keep them. Id. at 27. King notes

that some of these inmates have “even had it done while

incarcerated.” Id. at 17. Like those presented in King,

“[t]hese facts tend to suggest that there was no security

reason” for requiring either surgery or indefinite segregation.

See 781 F.3d at 898.

Moreover, “a factfinder may conclude that a prison official

knew of a substantial risk from the very fact that the risk was

obvious.” Farmer, 511 U.S. at 842; Makdessi v. Fields, 789 F.3d

126, 133 (4th Cir. 2015). Here, as King argues, “[i]nvasive

surgery on a highly-sensitive body part has obvious risks,” of

which the defendants must have been aware. King Br. 30. We

agree that these risks were “compounded” by the fact that the

marbles were not recently implanted and their removal not

medically necessary. Id. King’s consent to the surgery does

not change this. A prisoner does not absolve correctional

officers of risk simply by “not accepting [their] offer to stay

in segregation.” Thomas v. Younce, 604 F. App’x 325, 326 (4th

Cir. 2015) (unpublished). Here, King “did not voluntarily place

himself at risk [posed by surgery]; rather, he refused [the]

24
objectionable offer to place him in segregation . . . in lieu of

[surgery], where he faced substantial risk of serious injury.”

Id. We thus reverse the district court’s dismissal of King’s

Eighth Amendment claim.

c.

King also appeals the dismissal of his Fourteenth Amendment

Equal Protection claim. “The purpose of the equal protection

clause of the Fourteenth Amendment is to secure every person

within the State’s jurisdiction against intentional and

arbitrary discrimination.” Village of Willowbrook v. Olech, 528

U.S. 562, 564 (2000) (internal quotation marks and alteration

omitted). “To succeed on an equal protection claim, a plaintiff

must first demonstrate that he has been treated differently from

others with whom he is similarly situated and that the unequal

treatment was the result of intentional or purposeful

discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001). We then consider “whether the disparity in

treatment can be justified under the requisite level of

scrutiny.” Id. “[T]he Supreme Court has recognized the

validity of ‘class of one’ Equal Protection claims, ‘where the

plaintiff alleges that she has been intentionally treated

differently from others similarly situated and that there is no

rational basis for the difference in treatment.’” Willis v.

Town Of Marshall, N.C., 426 F.3d 251, 263 (4th Cir. 2005)

25
(quoting Olech, 528 U.S. at 564); see also Sansotta v. Town of

Nags Head, 724 F.3d 533, 542-44 & n.13 (4th Cir. 2013). We hold

that King’s allegations are sufficient to state a class-of-one

equal protection claim. 1

With regard to the first prong, we find that King’s

complaint alleged facts that he was treated differently from

other similarly situated inmates. King alleged that there were

at least two other inmates with implants in their penises.

These inmates were known to prison officials and were similarly

“caught, charged and convicted,” but neither was subjected to

extended segregation or surgery. J.A. at 17. King further

alleges that the defendants “single[d him] out” from these other

inmates. Id. at 27. Taken together, we find these allegations

sufficient to state an intentional disparity in treatment from

other similarly situated inmates.

We thus turn to the second prong of King’s equal protection

claim. In general, unless a suspect class is involved,

disparate treatment “is presumed to be valid and will be

sustained ‘if there is a rational relationship between the

disparity of treatment and some legitimate governmental

purpose.’” Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002)

1We note King’s argument that he was discriminated against
because of homosexual animus on the part of prison officials.
Because we find that King has stated a class-of-one claim, we do
not find it necessary to resolve this alternative theory now.

26
(quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)); see also

Olech, 528 U.S. at 564 (applying rational basis review to class-

of-one claims). When equal protection challenges arise in the

prison context, however, “courts must adjust the level of

scrutiny to ensure that prison officials are afforded the

necessary discretion to operate their facilities in a safe and

secure manner.” Veney, 293 F.3d at 732. That is, even when a

“regulation impinges on inmates’ constitutional rights, the

regulation is valid if it is reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89; Morrison, 239

F.3d at 655. To evaluate whether an action is reasonable, we

apply the factors set forth in Turner: (1) whether there is a

“valid, rational connection between the policy and the

penological interest”; (2) whether there is an “alternative

means of exercising the right” available to inmates; (3) what

“impact accommodation of the asserted right will have on” the

prison, including guards, other inmates, and prison resources;

and (4) “the absence of ready alternatives that fully

accommodate the prisoner’s rights at de minimis cost to valid

penological interests.” Morrison, 239 F.3d at 655 (citing

Turner, 482 U.S. at 89).

We have held that “[p]romoting the inmates’ safety and

health is a legitimate concern.” Jehovah v. Clarke, 798 F.3d

169, 178 (4th Cir. 2015) (citing McRae v. Johnson, 261 F. App’x

27
554, 558 (4th Cir. 2008) (unpublished)). Nonetheless, as

discussed above, we are not persuaded by the defendants’

arguments that King’s marbles posed a security threat.

Additionally, the defendants’ argument that permitting King to

keep the marbles could lead other inmates to implant objects

into their bodies is also unconvincing. Unlike with King, in

the defendants’ scenario, other inmates would be implanting

these objects while incarcerated, which behavior the prison has

a policy to address.

Moreover, we do not find that the other Turner factors—

particularly the third and fourth factors—support the conclusion

that that surgery was reasonable. We acknowledge that the

fourth factor, the absence of ready alternatives, “is not a

‘least restrictive alternative’ test.” Turner, 482 U.S. at 90.

Nevertheless, when pressed at oral argument, the defendants were

unable to explain why their process for dealing with an inmate

who enters prison with tattoos or even a steel rod in his arm—

where the condition is documented at booking and the inmate is

subsequently “monitored”—cannot be applied to King’s situation. 2

King also suggested other alternatives to surgery, including

leaving him alone, as defendants had allegedly done with other

2
Here, instead, when King was originally processed and
informed the officer of the marbles and tattoo, he was rebuffed
by the officer, who told him, “This isn’t a pornographic camera,
put [your] clothes back on.” J.A. 25.

28
inmates, or requiring him to cover the implants with clothing as

to not reveal their presence.

Here, the implants posed no medical risk to King, were not

recently implanted, and were not accessible nonsurgically. The

defendants do not appear to have made any attempt to confirm

whether the marbles posed a security risk and could not explain

why they could not monitor King’s marbles in the same way as

other types of preincarceration body modifications. On this

record, we conclude that surgery was an unreasonable

“exaggerated response” to defendants’ concerns. See id.

Therefore, we reverse the district court’s dismissal of King’s

Equal Protection claim.

d.

On appeal, King argues that he alleged sufficient facts to

state a claim under the Due Process Clause of the Fourteenth

Amendment. The district court did not originally consider any

substantive due process claim, and the defendants argue that

King raises this claim for the first time on appeal.

Nevertheless, King was “not required to use any precise or

magical words in [his] pleading.” Stevenson v. City of Seat

Pleasant, Md., 743 F.3d 411, 418 (4th Cir. 2014); see also

Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (“Legal labels

characterizing a claim cannot, standing alone, determine whether

it fails to meet [the standard for notice pleading under Federal

29
Rule of Civil Procedure 8(a)(2)].”). Simply because King did

not specifically label a claim under a due process heading does

not mean that he did not raise one.

“[A] competent person has a constitutionally protected

liberty interest in refusing unwanted medical treatment.”

Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).

This liberty interest survives conviction and incarceration.

Washington v. Harper, 494 U.S. 210, 221-22, (1990) (recognizing

an individual’s “significant liberty interest in avoiding the

unwanted administration” of a specific form of medical

treatment); Hogan v. Carter, 85 F.3d 1113, 1116 (4th Cir. 1996)

(en banc) (citing Harper, 494 U.S. 221-22). In this context,

prison officials may override this right when treatment is

“reasonably related to legitimate penological interests.”

Harper, 494 U.S. at 223 (citing Turner, 482 U.S. at 89). “This

is true even when the constitutional right claimed to have been

infringed is fundamental, and the State under other

circumstances would have been required to satisfy a more

rigorous standard of review.” Id. (citation omitted). As the

district court did not consider this potential claim, and given

30
the facts alleged in King’s complaint, we remand for

consideration of this claim. 3

e.

King appeals the dismissal without prejudice 4 of Scott for

failure to effect service. “[T]o preserve for appeal an issue

3The defendants argued that they are entitled to qualified
immunity, as any constitutional violations were not clearly
established. The district court did not consider this argument,
presumably because it concluded that King failed to allege a
violation. As we may affirm a dismissal on any grounds
supported by the record, Pitt Cty. v. Hotels.com, L.P., 553 F.3d
308, 311 (4th Cir. 2009), we briefly consider the argument here.
Even where a plaintiff suffers a constitutional violation,
an officer is only liable if “the right was clearly established
at the time the violation occurred such that a reasonable person
would have known that his conduct was unconstitutional.” Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). “We do not require
that a prior case be identical to the case at bar for fair
notice to be provided.” West v. Murphy, 771 F.3d 209, 216 (4th
Cir. 2014) (citing Hope, 536 U.S. at 741). Instead, a law is
clearly established “so long as ‘existing precedent [has] placed
the statutory or constitutional question beyond debate.’” Id.
(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)).
We decline to affirm the dismissal on qualified-immunity
grounds at this stage: we cannot conclude that a right to be
free from an egregiously sexually invasive, unjustified,
compelled surgery was not clearly established under the Fourth,
Eighth, and Fourteenth Amendments. See Cruzan, 497 U.S. at 278
(“[A] competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment.”); Wolfish, 441
U.S. at 560 (establishing that inmate searches “must be
conducted in a reasonable manner” (citing Schmerber, 384 U.S. at
771-72)); Morrison, 239 F.3d at 655 (“[R]egulation that impinges
on inmates’ constitutional rights . . . is [only] valid if it is
reasonably related to legitimate penological interests.”); Lopez
v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) (“Prison
conditions are unconstitutional if they constitute an
‘unnecessary and wanton’ infliction of pain and are ‘totally
without penological justification.’” (quoting Rhodes, 452 U.S.
at 346)).

31
in a magistrate judge’s report, a party must object to the

finding or recommendation on that issue with sufficient

specificity so as reasonably to alert the district court of the

true ground for the objection.” Makdessi, 789 F.3d at 131

(quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir.

2007)) (alteration in original). “Where an appellant has failed

to preserve an issue, it is deemed waived.” Id. Here, despite

objecting on multiple other grounds to the report and

recommendation, King did not object to the magistrate judge’s

recommendation that Scott be dismissed without prejudice.

Accordingly, King waived his right to appeal Scott’s dismissal,

and we affirm the district court.

f.

Finally, King appeals the dismissal of his claims against

Plumley, Goodin, and Rubenstein with prejudice. Alternatively,

King argues that he should have been permitted leave to amend

his complaint as to these defendants.

A state official can be in a § 1983 suit in three ways: in

his personal capacity, his official capacity, or in a more

4
The district court’s conclusion appears to have
accidentally dismissed the complaint in its entirety with
prejudice, and the judgment entered by the clerk indicates that
King’s complaint was dismissed with prejudice. Nevertheless,
the district court’s order dismissed Scott without prejudice,
and both parties understand that the dismissal was without
prejudice. J.A. 163; King’s Reply Br. 29; Defs.’ Br. 47.

32
limited way, his supervisory capacity. For personal liability,

“it is enough to show that the official, acting under color of

state law, caused the deprivation of a federal right.” Kentucky

v. Graham, 473 U.S. 159, 166 (1985). In an official-capacity

suit, however, “[m]ore is required”: the suit is “treated as a

suit against the entity,” which must then be a “‘moving force’

behind the deprivation,” id. (third quotation quoting Polk

County v. Dodson, 454 U.S. 312, 326 (1981)); thus, the entity’s

“‘policy or custom’ must have played a part in the violation of

federal law,” id. (quoting Monell v. Dep’t of Soc. Servs. of

City of New York, 436 U.S. 658, 694 (1978)). Meanwhile, a

supervisor can be liable where (1) he knew that his subordinate

“was engaged in conduct that posed a pervasive and unreasonable

risk of constitutional injury”; (2) his response showed

“deliberate indifference to or tacit authorization of the

alleged offensive practices”; and (3) that there was an

“affirmative causal link” between his inaction and the

constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th

Cir. 1994) (internal quotation marks omitted).

As to Plumley, we find that King properly stated a claim.

Regarding actions in his personal capacity, Plumley overturned

the Ad.-Seg. Committee’s recommendation that King return to the

general population. King claims that Plumley so decided

“because I had not had the marbles surgically removed.” J.A. 31;

33
see also id. (“I wrote an appeal to Warden Plumley seeking

release from ad-seg. Shortly thereafter I was told by the Unit

Manager . . . that if I did not have the marbles removed I would

be sent to the Quality of Life Program at Mount Olive

Correctional Complex . . . .”). The defendants point to

documentation King produced in his opposition to their motion to

dismiss, which shows that Plumley rejected the committee’s

recommendation to keep King in punitive segregation, instead

sending him to administrative segregation. Nevertheless,

Plumley appears to have participated to some degree in King’s

segregation. King also claims that the “Administration here at

Huttonsville has chosen to single me out for some unknown

reason.” Id. at 27. The warden, more so than anyone, should be

considered the administration.

The district court concluded that these facts “only

show[ed] that Plumley played a part in King’s housing in

administrative segregation that allegedly led to the surgery.”

Id. at 165. As the district court found that segregated

confinement was not a per se Eighth Amendment violation, it held

that King failed to state a claim. As held above, however, it

was not the segregation standing alone that may have constituted

the Eighth Amendment violation.

That “King [did] not contend that Plumley [was] liable in

his official or supervisory capacity,” id. at 166, is belied by

34
the caption itself: King brought suit against all defendants in

their personal and official capacities. Moreover, the few

allegations contained in the complaint itself, construed

liberally, attempt to make a connection between Plumley’s

actions and subsequent actions of his subordinate staff. E.g.,

id. at 26 (“The Warden overturned their recommendation and

Sherri Davis (Unit Manager-Seg. Unit E-2) had me escorted to her

office [where she] had me sign a paper that she would NOT permit

me to read. She said it was consent papers to go to Ruby

Memorial Medical Center to have a doctor examine the implants,

and if necessary, have them removed.”); id. at 31 (“I wrote an

appeal to Warden Plumley seeking release from ad-seg. Shortly

thereafter I was told by the Unit Manager of E-Unit Lester

Thomspon, that if I did not have the marbles removed I would be

sent to the Quality of Life Program at Mount Olive Correctional

Complex . . . .”). In his objection to the magistrate judge’s

recommendation, King also provided,

Plumley is the Warden of HCC. He has the final say in
Administrative Segregation Hearings. When the Board
released the Plaintiff from Ad. Seg., he overturned
their decision, and ordered the Plaintiff to remain on
Ad. Seg. Status until he agreed to surgery. Therefore
he directly participated in the violation of
Plaintiff’s . . . Rights, and should not be relieved
of responsibility for his actions.

Id. at 148. Accordingly, we find that King stated a claim

against Plumley and reverse his dismissal with prejudice.

35
 King’s allegations as to Rubenstein and Goodin are

admittedly significantly less robust, and the district court

found that King made no mention of either outside of the caption

of his complaint. King did make slightly more specific

allegations as to these defendants in his objections to the

magistrate judge’s report and recommendation. Even a pro se

plaintiff, however, must allege sufficient facts “to raise a

right to relief above the speculative level” and “state a claim

to relief that is plausible on its face.” Twombly, 550 U.S. at

555, 570. We find the facts alleged to fall short of this

standard.

Nevertheless, we find that the dismissal against these two

defendants should have been without prejudice. Here, King did

not move to amend his complaint, and we do not “expect[] the

district courts to assume the role of advocate for the pro se

plaintiff.” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.

1978). But the district court neither gave King the opportunity

to amend nor did it engage in any discussion as to why amendment

would be futile. In such a situation, the dismissal should

generally be without prejudice. See Arnett v. Webster, 658 F.3d

742, 756 (7th Cir. 2011); Coleman v. Peyton, 340 F.2d 603, 604

(4th Cir. 1965) (per curiam) (holding that, if a pro se

complaint contains a potentially cognizable claim, the plaintiff

should be given an opportunity to particularize his

36
allegations). Accordingly, we affirm the dismissal as to

Rubenstein and Goodin but modify it to reflect that it is

without prejudice.

IV.

Based on the foregoing, we conclude that King properly

stated his Fourth, Eighth, and Fourteenth Amendment Equal

Protection and Due Process claims. We also hold that King

stated a claim against Marvin Plumley. We reverse the district

court’s decision on those bases, vacate the dismissal, and

remand the case for further proceedings. We affirm the

dismissal as to Stacy Scott. We also affirm the dismissal as to

Cliff Goodin and Jim Rubenstein but modify it to be without

prejudice.

AFFIRMED IN PART, REVERSED, VACATED, AND REMANDED IN PART
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION

37