United States Court of Appeals
For the First Circuit
No. 08-1748
ÁNGEL LUIS SANCHEZ,
Plaintiff, Appellant,
v.
MIGUEL A. PEREIRA-CASTILLO, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Leval,* and Lipez, Circuit Judges.
Guillermo Ramos-Luiña, for appellant.
Rosa E. Pérez-Agosto, with whom Maite D. Oronoz-Rodríguez,
Acting Solicitor General, Ileana Oliver-Falero, Acting Deputy
Solicitor General, and Leticia Casalduc-Rabell, Assistant Solicitor
General, were on brief, for appellees Pereira-Castillo, et al.
Julio Nigaglioni, with whom Jennifer López Negrón was on
brief, for appellee Sandra I. Deniz.
December 23, 2009
*
Of the Second Circuit, sitting by designation.
LIPEZ, Circuit Judge. Plaintiff Ángel Sanchez alleges
that, while a prisoner at a Puerto Rico correctional institution,
correctional officers subjected him to an escalating series of
searches of his abdominal cavity that culminated in a forced
exploratory abdominal surgery. Plaintiff filed this action
pursuant to 42 U.S.C. § 1983 against a group of defendants
consisting of correctional officers for the Commonwealth of Puerto
Rico Administration of Corrections ("AOC"), doctors who worked for
the AOC, and doctors who worked at the Río Piedras Medical Center
("Río Piedras"), the medical facility where the surgery took place.
His complaint alleges violations of his federal constitutional
rights and raises supplemental claims under Puerto Rico law. The
district court granted the defendants' motions to dismiss the suit
for failure to state a claim, and plaintiff now appeals.
After review of the complaint and the district court's
decision, we vacate the dismissal of plaintiff's Fourth Amendment
claims against two of the correctional defendants, Miguel Cabán-
Rosados and John Doe, and the doctor who performed the surgery,
reinstate the supplemental claims, and remand the case for further
proceedings.
I.
We review a district court's dismissal for failure to
state a claim de novo, drawing all reasonable inferences in favor
of the non-moving party, Porier v. Massachusetts Dept. of
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Correction, 558 F.3d 92, 94 (1st Cir. 2009), and accepting all
well-pleaded facts in the complaint as true, Andrew Robinson Int'l,
Inc. v. Hartford Fire Ins. Co., 547 F.3d 48, 51 (1st Cir. 2008).
A. The Complaint
On July 13, 2006, defendant Sergeant Cabán-Rosados
("Cabán") and other correctional officers under his command
conducted a search of the living quarters at the Bayamón 501
correctional institution, where plaintiff was an inmate. During
the search, a handheld metal detector gave a positive finding when
used to scan plaintiff and four other inmates. The men were taken
to another area of the prison, where they were sniffed by law
enforcement dogs who did not react in a way that would indicate the
presence of contraband. The five inmates were then strip-searched,
but no contraband was found. Plaintiff was again scanned with the
metal detector while naked; this time, the metal detector did not
indicate a positive finding.
Despite the negative findings from the dog search, the
strip search, and the second metal detector search, Cabán and/or
Commander Sanchez, Commander of the Guard at Bayamón 501,1 asked an
unknown doctor, identified in the complaint as Dr. Richard Roe I,
to order that abdominal x-rays be taken of plaintiff and the other
1
Although there are allegations against Commander Sanchez in
the complaint, he is not a defendant in this case because he was
not properly served. The other correctional officers whose actions
are described are all defendants.
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four inmates. Without examining the inmates, Dr. Roe I ordered
the tests. Plaintiff objected to the x-ray, but was told that
there was a judicial order for the procedure. When he asked to see
the order, Cabán refused to produce one. According to the
complaint, no such order existed.
After the x-rays, plaintiff was placed under the constant
surveillance of two correctional officers. Cabán ordered him to
have a bowel movement on the floor. Plaintiff did so, but did not
expel any foreign object. Aware of that development, Cabán
nonetheless ordered that the plaintiff be taken to the medical area
at Bayamón 1072, where the medical director for the Bayamón
Correctional Complex, identified as Dr. Richard Roe II, examined
the x-ray film and told plaintiff that the x-rays revealed the
existence of a foreign object in plaintiff's rectum consistent with
a cellular telephone. Plaintiff denied having a cellular phone in
his rectum and requested that another x-ray be taken, but his
request was refused. Plaintiff later had a second bowel movement
in the presence of the correctional officers, which again was free
of foreign objects. After the second bowel movement, Dr. Roe II
issued a referral for the Emergency Room of the Río Piedras Medical
Center for further testing and/or medical intervention. Plaintiff
objected, and again requested that a second abdominal x-ray be
taken, but his request was denied.
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Cabán and/or Sanchez coordinated plaintiff's transport to
Río Piedras for the purpose of a rectal examination and/or medical
procedure to remove the purported foreign object. Plaintiff was
escorted to the hospital by a correctional officer identified in
the complaint as John Doe. At Río Piedras, plaintiff was examined
by a third doctor, identified as Dr. Richard Roe III. Dr. Roe III
conducted a manual rectal examination and ordered several lab
tests. The rectal examination did not reveal the presence of any
foreign object, and the results of the tests were normal. Dr. Roe
III then conducted a second manual rectal examination, this time in
collaboration with his superior, identified in the complaint as Dr.
Richard Roe IV. The second rectal examination again failed to
reveal the presence of any foreign object in the plaintiff's
rectum. According to the complaint, the rectal examinations were
performed at the insistence of John Doe. The complaint alleged:
At all times John Doe insisted that plaintiff
was hiding a cellular phone in his rectum and
pressured the medical personnel at the
Emergency Room, including Dr. Richard Roe III
and Dr. Richard Roe IV, to conduct a medical
procedure to remove it. The pushiness exerted
by John Doe followed the orders imparted by
Cabán and/or Sanchez and the regulations and
directives designed by Pereira, [Secretary of
Corrections], as construed and implemented by
all of the other Supervisory Defendants.
(Capitalization omitted.)
Despite the negative results of the two rectal
examinations, Drs. Roe III and IV requested a consultation with the
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surgery department of the medical center. Dr. Sandra Deniz, a
surgeon, then evaluated plaintiff. She was made aware of the
negative findings of the two rectal examinations, the normal
results of the tests ordered by Dr. Roe III, the two bowel
movements occurring after the x-ray that were free of foreign
objects, plaintiff's repeated denials of having a cellular
telephone in his rectum, and his repeated requests that a second x-
ray be performed. Notwithstanding that knowledge, and without
conducting another x-ray exam or manual test, Dr. Deniz scheduled
plaintiff for emergency exploratory surgery under total anesthesia.
Before operating, Dr. Deniz obtained plaintiff's written
consent. According to the complaint, plaintiff signed the consent
form only under pressure from John Doe and only after Dr. Deniz
promised that she would perform another rectal examination under
total anesthesia before conducting the surgery. Contrary to her
assurances, Dr. Deniz did not perform another rectal examination or
any other less invasive procedure to confirm the presence of a
foreign object before performing the surgery. Instead, while
plaintiff was under total anesthesia, she immediately conducted the
exploratory surgical intervention. It revealed that there was no
foreign object in plaintiff's gastrointestinal tract. She then
took a post-surgical x-ray, which confirmed that finding. Two days
after the surgery, on July 16, plaintiff was discharged from the
hospital and returned to his cell at Bayamón 501.
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B. Procedural Background
Plaintiff filed this action on July 10, 2007, alleging
violations of his constitutional rights and seeking compensatory
and punitive damages under 42 U.S.C. § 1983 ("Section 1983"). The
complaint also contained supplemental claims under Puerto Rico law
for violations of the Puerto Rico constitution and fault or
negligence under Article 1802 of Puerto Rico's Civil Code. 31
L.P.R.A. § 5141.
In addition to Drs. Richard Roe I-IV, John Doe, and the
defendants already mentioned by name (Cabán, Sanchez and Dr.
Deniz), the complaint also named as defendants: Miguel A. Pereira-
Castillo, Puerto Rico's Secretary of Corrections and Rehabilitation
("Pereira"); Hector Fontanez-Rivera, Security Director of the AOC
("Fontanez"); Ramon Díaz-Correa, Director of the Eastern Region for
the AOC ("Díaz"); Gilberto Negrón-Falcón, Security Director of the
Eastern Region of the AOC ("Negrón"); and Walter Soto,
Superintendent of Bayamón 501 ("Soto").2 The complaint alleged
that Pereira, Fontanez, Díaz, Negrón, Soto, and Sanchez ("the
administrative correctional defendants") were, inter alia,
"responsible for ensuring that the correctional officers under
their command followed practices and procedures [that] would
respect the rights and ensure the bodily integrity of Plaintiff .
2
The spouses of all married defendants, as well as their
conjugal partnerships, were also named in the complaint. We will
omit reference to these parties in our discussion.
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. . [t]his they failed to do with deliberate indifference and/or in
reckless disregard of Plaintiff's federally protected rights . . .
."
Correctional defendants Pereira-Castillo, Fontanez-
Rivera, Díaz-Correa, Negrón-Falcón, Soto-Hernandez and Cabán moved
to dismiss the complaint for failure to state a claim for relief.
See Fed. R. Civ. P. 12(b)(6). The motion also stated that the
claims against Pereira, Fontanez, Díaz, Negrón, and Soto should be
dismissed because respondeat superior liability claims are not
cognizable under Section 1983 and that, in any case, all of the
correctional defendants were entitled to qualified immunity on all
claims.
Dr. Deniz also filed a motion to dismiss, claiming that
plaintiff's constitutional rights were not violated by the medical
procedure and that plaintiff was limited to traditional tort
remedies for medical malpractice. She did not contest that she was
a state actor for purposes of a Section 1983 claim, but argued that
she was entitled to Eleventh Amendment immunity in her official
capacity and qualified immunity in her personal capacity.
C. The Dismissal of Plaintiff's Complaint
The district court granted the defendants' motions to
dismiss. Sanchez v. Pereira-Castillo, 573 F. Supp. 2d 474 (D.P.R.
2008). The court first determined that because the suit was
brought against the defendants in their personal capacity,
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sovereign immunity did not apply. Id. at 483. The court then
considered plaintiff's claims that the strip searches, x-rays, and
rectal examinations violated his rights under the Fourth
Amendment.3 The court concluded that the searches were reasonable
and did not violate the Fourth Amendment.
The court took pause, however, at the exploratory
surgery, noting that "[t]here can be no doubt that the surgery
performed on Plaintiff posed a risk to his physical well being."
Id. at 486-87. Nonetheless, the court found that:
The AOC's personnel did not decide or give the
order to perform the rectal exams and the
surgery on Plaintiff. The decision to perform
the rectal exams was made by the staff at the
Medical Center. Furthermore, the decision to
go ahead with the exploratory surgery was
[made] by Deniz.
Id. at 487. Therefore, the court found that plaintiff had failed
to state a claim for deprivation of his constitutional rights by
the correctional defendants with respect to the abdominal surgery.
Id. According to the district court, "[a] holding to the contrary
would place the AOC's official in the impossible position of having
to second guess the medical staff's decision." Id. (citing
Sullivan v. Bornemann, 384 F.3d 372, 377 (7th Cir. 2004)).
Although Dr. Deniz had not argued in her motion to
dismiss that she was not a state actor, the court concluded that
3
The court found that plaintiff's Fifth Amendment claims
should be dismissed because that amendment "applies only to actions
of the federal government . . . ." Id. at 484.
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she was not and dismissed plaintiff's Fourth Amendment claim
against her on that basis, writing that "Deniz was acting as a
doctor when she performed the exploratory surgery and not as an
official under color of law." Id. at 488. "Thus," the court
concluded, "Deniz did not violate Plaintiff's Constitutional
rights." Id.
Having concluded that plaintiff's complaint did not state
a claim that his constitutional rights were violated by the x-ray,
the strip search, the rectal examinations, or the exploratory
surgery, the district court concluded that there was no need to
examine further the issue of qualified immunity. Id. Finally,
having dismissed plaintiff's federal law claims, the court declined
to exercise supplemental jurisdiction over the Puerto Rico law
claims. Id. at 490 (citing Camelio v. American Federation, 137
F.3d 666, 672 (1st Cir. 1998)).
After the district court issued its opinion, plaintiff
moved for reconsideration and leave to file an amended complaint.
Plaintiff argued that the district court had effectively ordered
the dismissal sua sponte by basing its decision on a case,
Sullivan, 384 F.3d 372, that was not cited by either party. In a
written memorandum and order, the district court disagreed with
plaintiff's characterization of the order as a sua sponte
dismissal, and denied his requests for reconsideration and to file
an amended complaint. Sanchez, 573 F. Supp. 2d at 491-92.
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This appeal followed.
II.
As a preliminary matter, we discuss plaintiff's argument
that the district court's dismissal of his complaint under Rule
12(b)(6) deprived him of notice and an opportunity to be heard
because the court based its decision on grounds different from
those argued by the defendants and did not give the plaintiff prior
warning or the chance to rebut those arguments that ultimately
swayed the court. Plaintiff points out, correctly, that sua sponte
dismissals are discouraged in this circuit; we have cautioned that
they are "strong medicine, and should be dispensed sparingly."
Gonzalez-Gonzalez v. United States, 257 F.3d 31, 33 (1st Cir.
2001). Because of notice and fairness issues raised by such
dismissals, we have also stated that they "are erroneous unless the
parties have been afforded notice and an opportunity to amend the
complaint or otherwise respond." Futura Dev. of P.R., Inc., v.
Estado Libre Asociado de P.R., 144 F.3d 7, 14 (1st Cir. 1998).
Plaintiff sought to amend his complaint after the district court
issued its order, but his motion was denied.
We disagree, however, with plaintiff's assessment that
the district court's dismissal occurred sua sponte. The court
acted in response to defendants' motions to dismiss under Rule
12(b)(6). As we indicated in Cordero-Hernández v. Hernández-
Ballesteros, 449 F.3d 240, 243 n.2 (1st Cir. 2006), a dismissal is
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not sua sponte when it responds to a motion to dismiss. See id.
("[T]here is some difference between dismissal of a claim that has
never been challenged and dismissal where, as here, the court acts
in response to a defendant's motion but on grounds not fully
briefed by the movant.") (citation omitted). Nonetheless, we
cautioned in that case that "if the district court had any doubt
that plaintiffs understood that they were in danger of having their
complaint dismissed on grounds they had not had an opportunity to
argue, the safest course would have been to give notice of the
proposed grounds for dismissal and to take arguments on the
question." Id. The district court would have done well to follow
that advice here. Allowing plaintiff to contest the district
court's comparison of this case to Sullivan may have illuminated
the ways in which it is inapposite, which we will discuss infra,
and therefore may have prevented the court's erroneous reliance on
that case.
III.
Section 1983 "creates a remedy for violations of federal
rights committed by persons acting under color of state law."
Haywood v. Drown, 129 S. Ct. 2108, 2111 (2009). Although prisoners
experience a reduction in many privileges and rights, a prisoner
"'retains those [constitutional] rights that are not inconsistent
with his status as a prisoner or with the legitimate penological
objectives of the corrections system.'" Turner v. Safley, 482 U.S.
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78, 95 (1987) (modification in original) (quoting Pell v.
Procunier, 471 U.S. 817, 822 (1974)).
We review the grant of a motion to dismiss de novo.
Like the district court, we are required to "accept as true all the
factual allegations in the complaint and construe all reasonable
inferences in favor of the plaintiff[]." Alternative Energy, Inc.
v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.
2001); Trans-Spec Truck Svc., Inc. v. Caterpillar Inc., 524 F.3d
315, 320 (1st Cir. 2008). In order to survive a motion to dismiss,
plaintiff must allege sufficient facts to show that he has a
plausible entitlement to relief. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1949 (2009). Section 1983 requires three elements for
liability: deprivation of a right, a causal connection between the
actor and the deprivation, and state action. 42 U.S.C. § 1983.
State actors may be immune from suit on the basis of qualified
immunity.
Accordingly, we will first discuss plaintiff's claim that
he was deprived of his Fourth Amendment rights, analyzing whether
the searches at issue implicated and violated that amendment.
Because we find that the allegations do charge a Fourth Amendment
violation, we will then assess whether plaintiff has sufficiently
stated claims that each individual defendant was a cause of the
violation. Next, we will assess whether Dr. Deniz qualifies as a
state actor for purposes of this action. Finally, we will discuss
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whether any remaining correctional defendants and Dr. Deniz are
entitled to qualified immunity on the Fourth Amendment claims.
A. The Fourth Amendment Claim
1. Were the Procedures Performed at the Medical Center
"Searches" Within the Scope of the Fourth
Amendment?
To determine whether the rectal examinations and the
exploratory surgery implicated the Fourth Amendment, we must first
determine whether they constituted searches for evidence or
legitimate medical procedures.4 As will be discussed further
below, it is impossible to reconcile the allegations in the
complaint with the district court's conclusion that these
procedures were "medical decisions made exclusively by physicians."
According to the complaint, the procedures were carried out at the
insistence of correctional officials for the purpose of finding a
cell phone in plaintiff's rectum.
The procedures were the direct culmination of a series of
searches that began when a metal detector used to scan plaintiff's
person gave a positive reading. The complaint describes the
4
Although plaintiff's complaint alleges several searches,
including strip and x-ray searches, he only argues on appeal that
the rectal examinations and the exploratory surgery violated his
constitutional rights. Accordingly, we affirm the dismissal of
plaintiff's claims that the strip and x-ray searches violated his
rights. United States v. Soler, 275 F.3d 146, 155 n.5 (1st Cir.
2002) (arguments not developed on appeal are waived). Also, we
affirm the dismissal of all claims against Drs. Roe I and II, as
the complaint contains no allegations that those doctors were
involved in the rectal examinations or the exploratory surgery.
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surgery as "medically unnecessary," and explains circumstances
supporting that claim, namely that plaintiff had two normal bowel
movements before the searches were conducted, that Dr. Roe III
examined him upon arrival at the hospital and found him to be
asymptomatic, and that several lab tests ordered by Dr. Roe III
were found to be "within normal limits." Because the procedures
described in the complaint were searches for evidence, they are
properly analyzed under the framework of the Fourth Amendment.
2. Did the Searches Violate the Fourth Amendment?
"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) (other quotation marks omitted)). In the prison
context, prisoners are "accorded those rights not fundamentally
inconsistent with imprisonment itself or incompatible with the
objectives of incarceration." Id. at 523. We have recognized that
a limited right of bodily privacy against searches is not
incompatible with incarceration. Cookish v. Powell, 945 F.2d 441,
446 (1st Cir. 1991) (per curiam) ("[S]ome Fourth Amendment
protection [i]s available to inmates as to their persons.").5 A
5
Although the Supreme Court in Hudson "foreclosed any
[F]ourth [A]mendment challenge to the search of a prison cell,"
this court, like those in most other circuits, "has recognized a
qualitative difference between property searches and searches of a
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reviewing court must "'balanc[e] the need for the particular search
against the invasion of personal rights that the search entails.'"
Id. (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979)). Mindful
of this principle, we analyze the rectal exams and the surgery
separately, concluding that the rectal exams did not violate
plaintiff's Fourth Amendment rights, but the surgery did.
a. The Rectal Examinations
Plaintiff argues that the two rectal examinations
conducted at the hospital violated his Fourth Amendment rights.
When analyzing searches of prisoners' body cavities, we ask whether
the search was "'reasonable' under the circumstances." Arruda v.
prisoner's person." Dunn v. White, 880 F.2d 1188, 1191 (10th Cir.
1989); see Bonitz v. Fair, 804 F.2d 164, 170 n.6 (1st Cir. 1986)
(overruled on other grounds by Unwin v. Campbell, 863 F.2d 124 (1st
Cir. 1988) (noting that after Hudson, "plaintiffs can no longer
claim that their cells or other parts of the prison were
unreasonably searched," while analyzing strip searches of prisoners
under Bell v. Wolfish, 441 U.S. 520, 545 (1979)); see also Covino
v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (despite Hudson,
"inmates do retain a limited right to bodily privacy"); Canedy v.
Boardman, 16 F.3d 183, 185-86 (7th Cir. 1994) (Hudson's abrogation
of Fourth Amendment rights limited to prisoner's cells; Wolfish
governs searches of prisoners' bodies); Cornwell v. Dahlberg, 963
F.2d 912, 916 (6th Cir. 1992) ("[T]his Circuit has joined others in
recognizing that 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.");
Somers v. Thurman, 109 F.3d 614, 617 (9th Cir. 1997) (rejecting as
dicta suggestion that the Court in Hudson "intended to strip the
inmates of all Fourth Amendment privacy rights"); Elliott v. Lynn,
38 F.3d 188, 191 n.3 (5th Cir. 1994) (holding that inmates' Fourth
Amendment protection from unreasonable body cavity searches
survives Hudson); but see Johnson v. Phelan, 69 F.3d 144, 150 (7th
Cir. 1995), cert. denied, 519 U.S. 1006 (1996) (holding that, after
Hudson, "the [F]ourth [A]mendment does not protect privacy
interests within prisons").
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Fair, 710 F.2d 886, 887 (1st Cir. 1983) (quoting Bell v. Wolfish,
441 U.S. 520, 559 (1979)). The reasonableness of a search, in
turn, depends on the "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." Wolfish, 441 U.S. at
559. A court must "evaluate 'prison practice . . . in light of the
central objective of prison administration, safeguarding
institutional security.'" Arruda, 710 F.2d at 887 (quoting
Wolfish, 441 U.S. at 547). In each case, the "need for the
particular search must be balanced against the invasion of personal
rights that the search entails." Id. at 889 (Maletz, J.,
concurring in part and dissenting in part).
Unlike in Wolfish, where the searches at issue were
purely visual, the searches in this case involved touching and
intrusion, a distinction that "is significant and has been noted by
courts." Bonitz, 804 F.2d at 172. The Wolfish framework, however,
still guides the inquiry. See Del Raine v. Williford, 32 F.3d
1024, 1040 (7th Cir. 1994); Bonitz, 804 F.2d at 170.
There is no doubt that digital rectal examinations entail
an intrusion greater than the "severe if not gross interference
with a person's privacy that occurs when guards conduct a visual
inspection of body cavities." Bonitz, 804 F.2d at 172 (quotation
omitted). At a minimum, they are "highly intrusive and
humiliating." Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.
-17-
1988). Nevertheless, physical rectal examinations of prisoners,
when carried out by trained medical staff under sanitary
conditions, are at times "a necessary and reasonable concomitance
of . . . imprisonment." Daughtery v. Harris, 476 F.2d 292, 295
(10th Cir. 1973).
In this case, the "manner" and "place in which [the
search was] conducted" weigh in favor of a finding of
reasonableness. Wolfish, 441 U.S. at 559. The rectal searches of
plaintiff's person were conducted by medical professionals in the
professional, hygienic confines of a hospital. In reviewing the
reasonableness of body-cavity searches, courts have stressed that
they were conducted in a private area and in a hygienic manner.
Bonitz, 804 F.2d at 172; contrast id. at 173 (finding that "a body-
cavity search of female inmates conducted by police officers,
involving touching, conducted in a non-hygienic manner and in the
presence of male officers, was a clearly established violation of
the inmates' fourth amendment right to be free from an unreasonable
search"). The complaint describes no abusive or otherwise
unprofessional conduct on the part of the correctional officers or
the doctors during the rectal exams, nor does it set forth any
facts to suggest that the rectal examinations of plaintiff's person
by medical professionals were more intrusive than similar exams
carried out as a matter of policy by paraprofessionals at other
prisons. See Daughtery, 476 F.2d at 294 (prison "policy of
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allowing rectal searches [by trained paraprofessional medical
assistants in a designated area] must be considered reasonable
unless contradicted by a showing of wanton conduct").
As for the "justification" for the search, Wolfish, 441
U.S. at 559, the complaint describes a search carried out for the
legitimate penological objective of locating and removing
contraband from the prison system. See id. at 559. The Supreme
Court has advised us to be careful not to impose our own judgments
about the security needs of prison administrators. Turner v.
Safley, 482 U.S. 78, 89 (1987) ("'[P]rison administrators . . .,
and not the courts, [are] to make the difficult judgments
concerning institutional operations.'") (modifications in original)
(quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119,
128 (1977)). "Wolfish cautions us to be most hesitant to overturn
prison administrators' good faith judgments" about "the relative
security needs of institutions." Arruda, 710 F.2d at 887.
Plaintiff does not argue that the digital rectal searches were not
related to a legitimate penological need, nor does he describe any
circumstances surrounding the examinations that would make the
searches appear abusive. Cf. Wolfish, 441 U.S. at 560 (noting that
visual searches of body cavities conducted in an abusive fashion
"cannot be condoned"); see also Bonitz, 804 F.2d at 172-73 (abusive
rectal searches were unconstitutional); Tribble v. Gardner, 860
F.2d 321, 325 (9th Cir. 1988) (complaint described unconstitutional
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rectal searches when it alleged that they were abusive and not
related to a penological need).
In Daughtery, 476 F.2d at 295, the Tenth Circuit found it
constitutional for a correctional institution to require routine
rectal examinations of all prisoners prior to court appearances.
The searches were conducted according to prison directives,
"carried out by trained paraprofessional medical assistants in a
designated area and under sanitary conditions," and "there was no
attempt on the part of officials or medical personnel to humiliate
or degrade" the prisoners. Id. We conclude that the rectal
searches of plaintiff described in the complaint, carried out by
medical professionals in the relatively private, sanitary
environment of a hospital, upon suspicion that plaintiff had
contraband in his rectum, and with no abusive or humiliating
conduct on the part of the law enforcement officers or the doctors,
were not unreasonable.6
b. The Surgery
Plaintiff also alleges that the exploratory surgery of
his abdomen as described in his complaint violated his rights under
the Fourth Amendment. We agree. The complaint states that he was
6
Having found that the rectal examinations did not violate
the Fourth Amendment, we find that the Fourth Amendment claims
against Drs. Roe III and IV were appropriately dismissed. Drs. Roe
III and IV's only involvement in the surgical procedure was
"plac[ing] a consultation to the Surgery Department" at the
insistence of John Doe. Thus, according to the complaint, they did
not encourage or participate in the surgery.
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forced to undergo dangerous, painful, and extremely intrusive
abdominal surgery for the purpose of finding a contraband telephone
allegedly concealed in his intestines, even though the basis for
believing there was a telephone was slight, several tests had
indicated the absence of any such object, and additional, far less
intrusive testing could easily have obviated any need for such
grievous intrusion. Prisoners do have protection from unreasonable
searches of their persons, Cookish, 945 F.2d at 446, and the
surgery described in the complaint was just such an unreasonable,
unconstitutional search.
The most disturbing element of the exploratory surgery
is unquestionably its "scope." Wolfish, 441 U.S. at 559. In
Winston v. Lee, 470 U.S. 753 (1985), the Supreme Court decided that
the state of Virginia could not compel a criminal suspect to undergo
a surgical procedure to remove a bullet lodged in his chest,
although the bullet would be helpful to the state in prosecuting the
suspect for an attempted robbery. Id. at 756. The Court explained
that:
The reasonableness of surgical intrusions
beneath the skin depends on a case-by-case
approach, in which the individual's interests
in privacy and security are weighed against
society's interests in conducting the
procedure. In a given case, the question
whether the community's need for evidence
outweighs the substantial privacy interests at
stake is a delicate one admitting of few
categorical answers. . . . Notwithstanding the
existence of probable cause, a search for
-21-
evidence of a crime may be unjustifiable if it
endangers the life or health of the suspect.
Id. at 760-61. To be sure, the situation here involves the search
of a prisoner, whereas Winston involved the search of a "citizen --
not yet convicted of a criminal offense." Winston, 470 U.S. at 765
(quotation omitted). Plainly, the same Fourth Amendment standards
do not apply to prisoners as they do to free citizens. See, e.g.,
Hudson, 468 U.S. at 524; Wolfish, 441 U.S. 520 (upholding visual
body cavity searches based on less than probable cause). We
therefore analyze this case under the rubric of Wolfish, which sets
forth a balancing test designed to take into account the special
circumstances of the prison context. Nonetheless, the Supreme
Court's precedent on compelled surgical invasion is unquestionably
relevant to our analysis of the scope of the surgery in question
here.
In Winston, the Court distinguished the earlier case of
Schmerber v. California, 384 U.S. 757 (1966), where it had ruled
that a suspect's Fourth Amendment rights were not violated by the
extraction of his blood by a medical doctor, at the behest of a
police officer, in order to determine his blood alcohol content.
Id. at 758, 773. The blood draw procedure at issue in Schmerber was
"commonplace . . . and experience with [it] teaches that the
quantity of blood extracted is minimal, and that for most people the
procedure involves virtually no risk, trauma, or pain." Id. at 771.
-22-
Other important factors in Schmerber were "the extent of intrusion
upon the individual's dignitary interests in personal privacy and
bodily integrity" and "the community's interest in fairly and
accurately determining guilt or innocence." Winston, 470 U.S. at
761-62. Balancing those factors, the Court ruled that the blood
draw was not unreasonable. Schmerber, 384 U.S. at 772.
Here, in contrast to the blood-draw procedure in
Schmerber, the forced abdominal surgery was not "commonplace" and
did involve "risk, trauma, [and] pain." Schmerber, 384 U.S. at 771.
Unlike a simple blood draw, plaintiff's surgery was unusual and
required total anesthesia, surgical invasion of the abdominal
cavity, and two days of recovery in the hospital. The complaint
alleges that he was "slashed and mutilated" during the procedure,
that his "life and health were jeopardized," and that he experienced
"severe physical and emotional pain that continues at present."
Adding to the egregious "scope" of the forced surgery was
the lack of "justification" for the procedure. Wolfish, 441 U.S.
at 559. The surgery was conducted despite several indications of
the absence of contraband, including the results of two monitored
bowel movements and two rectal examinations. An x-ray -- a much
simpler, less invasive procedure -- could have confirmed those
results (and eventually did). We recognize that the Supreme Court
has cautioned that the "logic of such elaborate less-restrictive-
alternative arguments could raise insuperable barriers to the
-23-
exercise of virtually all search-and-seizure powers." Wolfish, 441
U.S. at 559 n.40 (quotation marks omitted).7 In this case,
however, given the dramatically invasive circumstances, we conclude
that it is appropriate to consider that this surgery, according to
the complaint, could have been avoided with a simple x-ray.
Unlike the district court, we do not find that
plaintiff's signed consent form eliminates the Fourth Amendment
concerns raised by the surgery. See Sanchez, 573 F. Supp. 2d at 488
("Plaintiff's Fourteenth Amendment claim is not the appropriate
manner of challenging the acts committed by Deniz, especially []
when the exploratory surgery was performed after obtaining
Plaintiff's consent."). We reiterate that the district court was
obligated, as are we, to accept the well-pleaded facts in the
complaint as true. The complaint states that:
Plaintiff executed said consent form only
after his repeated requests for other
radiographic tests were rebuffed and after Dr.
7
The Supreme Court has acknowledged, however, that the
existence of less intrusive alternatives may be relevant to the
determination of the reasonableness of a particular search method.
See Wolfish, 441 U.S. at 559 n.40 (discussing, on the assumption
that such arguments would be relevant, the merits of various less-
restrictive-alternative arguments). In the context of prisoners'
First Amendment rights, the Court has explained that "the absence
of ready alternatives is evidence of the reasonableness of a prison
regulation." Turner v. Safley, 482 U.S. 78, 90 (1987). While
making clear that it was not creating a "least restrictive
alternative test," the Court held that "if an inmate can point to
an alternative that fully accommodates the prisoner's rights at de
minimis cost to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy the
reasonable relationship standard." Id. at 90-91 (internal citation
omitted).
-24-
Sandra Deniz assured him that she was going to
perform a rectal examination under total
anesthesia before taking any additional
measures. Plaintiff was also intimidated by
the insistence and pressure exerted by John
Doe upon all of the physicians that examined
him at the Rio Piedras Medical Center as
previously described.
Plaintiff was a prisoner who had been under constant surveillance
for more than a day prior to the surgery, and had been forced to
submit to searches, x-rays, and invasive rectal examinations prior
to his signing the consent form. He had twice been forced to
excrete on a floor in the presence of prison personnel. In light
of these intimidating circumstances, plaintiff's claim that he was
pressured and intimidated into signing the consent form is
plausible.
Plaintiff's complaint also states that he was falsely
assured by Dr. Deniz that before operating she would perform another
rectal examination under anesthesia. He gave his consent, such as
it was, to an invasive surgery to be performed only after the doctor
herself conducted an additional rectal exam, not to the surgery as
it was conducted. We therefore find that the consent form does not
preclude plaintiff's claim that he was deprived of his Fourth
Amendment rights. See United States v. Vanvliet, 542 F.3d 259, 264
n.2, 264-65 (1st Cir. 2008) (noting that totality of circumstances
test for determinating voluntariness of consent to a search includes
"the length and conditions of the consenter's detention and/or
questioning," "law enforcement officials' use of any inherently
-25-
coercive tactics," "evidence of police coercion or intimidation,"
and "consideration of any evidence that law enforcement officers'
fraud, deceit, trickery or misrepresentation prompted defendant's
acquiescence to the search").
The correctional defendants offer one argument in support
of the constitutionality of this search:
In light of the policy concerns manifested in
Sullivan, it must be concluded that,
regardless of the purpose of the surgical or
other type of intervention, medical or
investigative, any type of intervention
performed at a medical facility is solely
. . . influenced by the knowledge of those
adequately trained in the field, not any one
John Doe.
(Emphasis added.) That argument falters in light of the Supreme
Court's precedent. When a medical procedure is performed at the
instigation of law enforcement for the purpose of obtaining
evidence, the fact that the search is executed by a medical
professional does not insulate it from Fourth Amendment scrutiny.
See Winston, 470 U.S. at 763-64, 766 (surgery to be performed by
medical doctor for the purpose of retrieving evidence of an
attempted robbery would be unreasonable under the Fourth Amendment);
Schmerber, 384 U.S. at 767 ("It could not reasonably be
argued . . . that the administration of the blood test [by a
physician at the request of a police officer] . . . was free of the
constraints of the Fourth Amendment."); Rodriques v. Furtado, 950
F.2d 805, 814 (1st Cir. 1991).
-26-
Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004),
relied on by the district court and by the defendants on appeal,
does not contradict this Supreme Court precedent, and is not
inconsistent with our holding that the complaint describes an
unreasonable search. Sullivan dealt with a medically-necessary
procedure, not a search for evidence. There the plaintiff alleged
that police officers had violated his constitutional rights when
they assisted a nurse by restraining him during a catheterization
procedure conducted during a pre-lockup medical evaluation. Id. at
373-74. The plaintiff's high blood alcohol content, erratic
behavior, high blood pressure, and inability to provide a urine
sample prompted the treating physician to order the catheterization
to obtain a urine sample. Id. When the plaintiff would not be
still, the nurse responsible for the catheterization asked the
defendant officers to help restrain the plaintiff, explaining that
his "ability for movement had to be restricted to minimize the risk
of injury and infection during the brief procedure." Id. at 374.
The officers did not offer "any opinions or suggestions about
Sullivan's medical care" and "played no role" in the decision to
order a catheterization. Id. Moreover, one of the defendant
officers "specifically informed Sullivan that the urine sample would
not be used for criminal prosecution or other evidentiary purposes."
Id.
-27-
Even the Sullivan court was careful to point out that its
opinion should not be read broadly to cover a situation such as the
instant case. The court wrote:
It is undisputed that [the defendant officers]
had no input into Sullivan's medical care once
he arrived in the emergency room. In
addition, Sullivan has not argued that the
catheterization was used to search for
evidence determining his guilt or innocence.
It is uncontested that the catheterization was
performed solely to assure Sullivan's medical
well-being before he was transported to the
county jail. We express no opinion on how, if
at all, a difference in any of these
circumstances would affect the analysis.
Sullivan, 384 F.3d at 376. Sullivan, therefore, is inapposite to
this case, where plaintiff alleges that the surgery was carried out
at the insistence of AOC staff for the law enforcement purpose of
determining whether plaintiff had a foreign object in his rectum.
Viewing the plaintiff's well-pleaded factual allegations
as true, we conclude that "society is prepared to recognize" that
a prisoner has a reasonable expectation that he will not be forced
to undergo abdominal surgery for the purpose of finding contraband,
at least in these circumstances. Hudson, 468 U.S. at 525.
Plaintiff was surgically invaded for the purpose of searching for
a cell phone when other, less-invasive means had already indicated
the absence of such an object. Unlike in Winston, there is serious
doubt whether the surgery was even "likely to produce evidence of
a crime," 470 U.S. at 759, and by far less drastic measures the
-28-
existence of the telephone could easily have been excluded. The
surgery was a severe "intrusion upon [plaintiff's] dignitary
interests in personal privacy and bodily integrity," Winston, 470
U.S. at 762. We conclude that the allegations in the complaint
describe an unreasonable search conducted under the color of state
law.8
B. Causation
In response to a motion to dismiss, we must determine
whether, as to each defendant, a plaintiff's pleadings are
sufficient to state a claim on which relief can be granted. See
Fed. Rule Civ. Proc. 12(b)(6). Plaintiff has alleged facts which,
if proved, would amount to a violation of his Fourth Amendment
rights. Our inquiry now centers on the sufficiency of his claims
that the various defendants in this action caused that violation.
In order to survive a motion to dismiss under Rule 12(b)(6), a
plaintiff must "plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009). In other words, a plaintiff must offer "more than an
unadorned, the-defendant-unlawfully-harmed-me accusation," id., in
8
Plaintiff's complaint also raises due process and Eighth
Amendment claims that were dismissed by the district court.
Because plaintiff has developed no argument on his Eighth and
Fourteenth Amendment claims, those claims are waived. Ryan v.
Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled
in this circuit that issues adverted to on appeal in a perfunctory
manner, unaccompanied by some developed argumentation, are deemed
to have been abandoned.").
-29-
order to claim "a plausible entitlement to relief." Rodriguez-Ortiz
v. Margo Caribe, Inc., 490 F.3d 92, 95-6 (1st Cir. 2007) (quoting
Twombly, 550 U.S. at 555 (2007)).
Our task in determining whether the facts alleged are
sufficient to state a plausible claim against a particular defendant
is "context-specific." Iqbal, 129 S.Ct. at 1950; see also id. at
1952 ("Unlike in Twombly, where the doctrine of respondeat superior
could bind the corporate defendant, here [Iqbal required proof of
intentional discrimination] . . . petitioners cannot be held liable
unless they themselves acted on account of a constitutionally
protected characteristic."). We must draw on our "judicial
experience and common sense" as we make a contextual judgment about
the sufficiency of the pleadings. Id. at 1950.
We find that plaintiff's claims against Cabán, John Doe,
and Dr. Deniz have "facial plausibility," id. at 1949, while those
against the administrative correctional defendants do not. Because
our analysis varies depending upon the nature of the claim against
a defendant, we group our treatment of plaintiff's claims by
defendant. We begin with the administrative correctional
defendants. We then analyze the claims against Cabán and John Doe.
1. The Administrative Correctional Defendants
We read plaintiff's complaint to assert a claim of
supervisory liability under Section 1983 against the administrative
correctional defendants, namely Pereira, Fontanez, Díaz, Negrón, and
Soto, premised on the theory that those defendants failed adequately
-30-
to train the correctional defendants who were implicated in the
surgery itself. Although "Government officials may not be held
liable for the unconstitutional conduct of their subordinates under
a theory of respondeat superior," Iqbal, 129 S. Ct. at 1948,
supervisory officials may be liable on the basis of their own acts
or omissions. Aponte-Matos v. Toledo-Dávila, 135 F.3d 182, 192 (1st
Cir. 1998). In the context of Section 1983 actions, supervisory
liability typically arises in one of two ways: either the supervisor
may be a "primary violator or direct participant in the rights-
violating incident," or liability may attach "if a responsible
official supervises, trains, or hires a subordinate with deliberate
indifference toward the possibility that deficient performance of
the task eventually may contribute to a civil rights deprivation."
Camilo-Robles v. Zapata, 175 F.3d 41, 44 (1st Cir. 1999). In the
latter scenario, relevant here, the analysis focuses on "whether the
supervisor's actions displayed deliberate indifference toward the
rights of third parties and had some causal connection to the
subsequent tort." Id. In either case, the plaintiff in a Section
1983 action must show "an affirmative link, whether through direct
participation or through conduct that amounts to condonation or
tacit authorization," id., between the actor and the underlying
violation.
In determining whether allegations state a plausible
claim for relief, the Supreme Court has suggested that we "begin by
identifying pleadings that, because they are no more than
-31-
conclusions, are not entitled to the assumption of truth." Iqbal,
129 S. Ct. at 1950. Turning to plaintiff's complaint, we find that
it does little more than assert a legal conclusion about the
involvement of the administrative correctional defendants in the
underlying constitutional violation. Parroting our standard for
supervisory liability in the context of Section 1983, the complaint
alleges that the administrative defendants were "responsible for
ensuring that the correctional officers under their command followed
practices and procedures [that] would respect the rights and ensure
the bodily integrity of Plaintiff" and that "they failed to do [so]
with deliberate indifference and/or reckless disregard of
Plaintiff's federally protected rights." This is precisely the type
of "the-defendant-unlawfully-harmed-me" allegation that the Supreme
Court has determined should not be given credence when standing
alone. Id. at 1949.
The sole additional reference to the administrative
correctional defendants' role in the surgery is the complaint's
statement that "[t]he pushiness exerted by John Doe [upon the
doctors] followed . . . the regulations and directives designed by
Pereira and construed and implemented by all of the other
Supervisory Defendants."9 However, the only regulations described
9
The complaint contains more specific factual allegations
about the administrative correctional defendant's supervisory
responsibility for the strip and x-ray searches. Specifically, the
complaint alleges that Secretary Pereira, in particular, was
responsible for the strip search and x-ray policy that led to the
strip search and x-rays at issue in this case and that "he failed
-32-
in the complaint are the strip search and x-ray regulations
promulgated by Pereira. The deliberate indifference required to
establish a supervisory liability/failure to train claim cannot
plausibly be inferred from the mere existence of a poorly-
implemented strip search or x-ray policy and a bald assertion that
the surgery somehow resulted from those policies. We conclude,
therefore, that the "complaint has alleged - but it has not
'show[n]' -'that the pleader is entitled to relief'" from the
administrative correctional defendants. Iqbal, 129 S.Ct. at 1950
(quoting Fed. Rule Civ. Proc. 8(a)(2)). Although it did so on
different grounds, the district court was correct to dismiss the
claims against those defendants.
2. Sergeant Cabán and John Doe
We conclude that plaintiff's allegations against Cabán
and John Doe are sufficient to allow us "to draw the reasonable
inference that [each] defendant is liable for the misconduct
alleged." Iqbal, 129 S.Ct. at 1949. Although the claims against
John Doe and Cabán also rest on a form of supervisory liability in
the sense that neither one actually performed the surgery on
plaintiff, those claims do not depend on a showing by plaintiff of
a failure to train amounting to deliberate indifference to his
to adequately train AOC personnel . . . regarding those special
types of searches" and was aware of the lack of proper training.
Because we find there to be no underlying constitutional violation
arising from the strip and x-ray searches of plaintiff, the claims
of supervisory liability arising from those searches must fail.
-33-
constitutional rights. Instead, plaintiff succeeds in pleading
that the defendants were liable as "primary violator[s] . . . in
the rights-violating incident," thereby stating a sufficient claim
for relief. Camilo-Robles, 175 F.3d at 44.
We begin with the claims against Sergeant Cabán.10
Plaintiff's complaint specifically alleges that Cabán was directly
involved in all phases of the search for contraband,11 and in the
ultimate decision to transport plaintiff to the hospital "for a
rectal examination and/or a medical procedure to remove the foreign
object purportedly lodged in Plaintiff's rectum." The complaint
goes on to allege that John Doe, acting pursuant to "orders
imparted by Cabán," pressured the doctors to conduct a medical
procedure to remove the illusory cell phone from plaintiff's
bowels. Given these allegations, it is a plausible inference that
Cabán caused plaintiff to be subjected to the deprivation of his
Fourth Amendment rights. See 42 U.S.C. § 1983.
10
For clarity, we have excised references to Commander Sanchez
from the language we quote from the complaint. We have also
omitted block capitalization and other confusing stylistic
elements.
11
The complaint states that "Cabán and numerous correctional
officers under his direct command" conducted a search of the living
quarters at Bayamón 501 which involved scanning plaintiff and other
inmates with a handheld metal detector. The complaint goes on to
allege that "Cabán ordered that [plaintiff] be transported to
Bayamón 308 where x-rays would be taken to confirm or rule out the
presence of possible contraband within [his] body cavity." The
complaint alleges that "[a]t the request of Cabán," x-rays of
plaintiff were taken. The complaint states, further, that
"pursuant to Cabán's orders, plaintiff forced himself to have a
bowel movement on the floor."
-34-
We employ common law tort principles when conducting
"inquiries into causation under § 1983." Gutierrez-Rodriguez v.
Cartagena, 882 F.2d 553, 561 (1st Cir. 1989). The language of
Section 1983 demands as much. The statute imposes liability upon
those who "subject[] or cause[] to be subjected" any citizen to a
deprivation of a constitutional right. 42 U.S.C. § 1983. We have
explained that the causal connection alluded to by the statute "can
be established not only by some kind of [] personal participation
in the deprivation, but also by setting in motion a series of acts
by others which the actor knows or reasonably should know would
cause others to inflict the constitutional injury." Gutierrez-
Rodriguez, 882 F.2d at 561 (quotation marks omitted). Put another
way, an actor is "responsible for 'those consequences attributable
to reasonably foreseeable intervening forces, including the acts of
third parties.'" Id. (quoting Springer v. Seaman, 821 F.2d 871,
876 (1st Cir. 1987)). We read plaintiff's complaint to state that
Cabán affirmatively set in motion the trip to the hospital for the
purpose of removing the alleged contraband from within plaintiff's
body, with a resort by medical professionals to whatever procedure
was required to achieve that goal. In that sense, Cabán is a
"primary violator . . . in the rights-violating incident." Camilo-
Robles, 175 F.3d at 44.
Plaintiff's allegations against John Doe also survive the
motion to dismiss. The complaint alleges that plaintiff arrived at
the hospital emergency room "accompanied by John Doe." The
-35-
complaint further states that "[a]t all times John Doe insisted
that plaintiff was hiding a cellular phone in his rectum and
pressured the medical personnel at the emergency room . . . to
conduct a medical procedure to remove it." Thus, the complaint
charges John Doe with affirmatively causing the violation of
plaintiff's rights by insisting at the hospital that the doctors
perform a medical procedure to remove the suspected contraband from
his stomach. Like Cabán, he is alleged to be a primary violator of
plaintiff's Fourth Amendment rights.
We must reverse the district court's dismissal of the
claims against John Doe and Cabán.
C. State Action12
The district court dismissed plaintiff's Fourth Amendment
claim against Dr. Deniz because it concluded that Dr. Deniz was not
acting under color of law when she performed the surgery. Sanchez,
573 F. Supp. 2d at 488. We disagree. Plaintiff has adequately
stated a claim that Dr. Deniz was acting under color of law when
she performed the surgery.13
12
It is undisputed that all correctional defendants were state
actors.
13
Plaintiff failed to respond to Dr. Deniz's motion to
dismiss, and explains that failure on appeal by stating that he had
already responded to the correctional defendants' similar motion
and his arguments would have been the same. The district court,
however, did not base its dismissal on that procedural lapse and
instead relied on the merits of the case. Dr. Deniz does not argue
in her brief on appeal that this would be an alternative basis to
affirm the motion to dismiss. Therefore, we do not consider the
effect of plaintiff's failure to respond to Dr. Deniz's motion to
-36-
Assuming that Dr. Deniz is a private actor,14 her actions
must be "fairly attributable to the State" in order for her to have
acted under color of state law. Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 937 (1987). "In other words, it must be fair to
characterize" her as a state actor. Estades-Negroni v. CPC Hosp.
San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005). We have
employed three tests to determine "whether a private party fairly
can be characterized as a state actor: the state compulsion test,
the nexus/joint action test, and the public function test." Id. at
5. Plaintiff alleges that state action exists in this case under
the compulsion test because Dr. Deniz was strongly encouraged by
the correctional defendants to perform the surgery. "Under the
state compulsion test, a private party is fairly characterized as
a state actor when the state 'has exercised coercive power or has
provided such significant encouragement, either overt or covert,
that the [challenged conduct] must in law be deemed to be that of
the State.'" Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004
dismiss.
14
Plaintiff averred in his complaint that Río Piedras is
a publicly owned and operated facility and that, as such, Dr. Deniz
was acting as an employee of Puerto Rico. In Lugar, the Supreme
Court said that "[s]tate employment is generally sufficient to
render the defendant a state actor." Lugar v. Edmondson Oil Co.,
Inc., 457 U.S. 922, 935 n.18 (1987); see also Downs v. Sawtelle,
574 F.2d 1, 10 (1st Cir. 1978) (noting that agents and employees of
state hospitals may be sued under Section 1983). The district
court did not discuss this potential basis for a finding of state
action, nor do the parties discuss it in their briefs. This seems
a curious omission by all concerned. Nevertheless, the omission
precludes us from addressing the issue.
-37-
(1982)). Plaintiff's complaint, which describes "the insistence
and pressure exerted by John Doe upon all of the physicians that
examined him at the Rio Piedras Medical Center," sufficiently
alleges facts that meet the state compulsion test.
In Rodriques v. Furtado, 950 F.2d 805, 814 (1st Cir.
1991), we determined that a private doctor was a state actor when
he was conscripted by the police to conduct a search of a suspect's
vagina pursuant to a warrant.
The scope and motivation for the search were
established solely by the state's
investigatory goals and justified solely by
the search warrant. Dr. Falkoff's role in the
search was purely that of an auxiliary to
normal police search procedures. He exercised
the power of search traditionally reserved
exclusively to the State, because of the
'coercive power' and 'significant
encouragement' represented by the search
warrant.
Id. (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)) (internal
citations omitted). That rationale is equally, if not more, apt
here.
D. Qualified Immunity
The defendants pressed a defense of qualified immunity in
their motions to dismiss. Because the district court concluded
that the allegations in the complaint did not describe the
violation of a constitutional right, it concluded that it did not
have to address the other aspects of the qualified immunity
defense. Having concluded that the allegations in the complaint do
-38-
describe the violation of a constitutional right, we consider the
other elements of the qualified immunity defense even though
defendants foolishly failed to argue them. We do so because we can
affirm a decision "on any basis available in the record." Peguero-
Moronta v. Santiago, 464 F.3d 29, 34 (1st Cir. 2006). We also seek
to avoid the piecemeal litigation that might result if the
complaint were dismissed after remand on the basis of the other
prongs of the qualified immunity defense.15
We apply a two-part test to determine whether qualified
immunity shields a government official from liability. Maldonado
v. Fontanes, 568 F.3d 263, 268-69 (1st Cir. 2009). At the motion
to dismiss stage, we consider: 1) whether plaintiff's allegations,
taken as true, establish the violation of a constitutional right,
and 2) whether the constitutional right was clearly established at
the time of the challenged conduct. Id. at 269. The second step
of this analysis has two components. Id. It requires us to
consider both whether the contours of the constitutional right were
sufficiently clear at the time of the alleged conduct and also
whether, under the particular facts of the case, a reasonable
officer would have understood that his behavior violated that
15
Our conclusions on qualified immunity based on the
allegations in the complaint do not preclude the defendants from
raising this defense at a later stage of this litigation, on a more
developed factual record. Jordan v. Carter, 428 F.3d 67, 76 n.4
(1st Cir. 2005) ("[D]enial of immunity at the motion-to-dismiss
stage does not preclude renewal of the defense in a subsequent
motion for summary judgment or at trial.").
-39-
clearly established right.16 Id. In other words, "the salient
question is whether the state of the law at the time of the alleged
violation gave the defendant fair warning that his particular
conduct was unconstitutional." Id.
1. Sergeant Cabán and John Doe
We have already explained that plaintiff's allegations
establish the violation of a constitutional right. We also
conclude that forcing a prisoner to undergo an invasive abdominal
surgery for the purpose of determining whether or not he is hiding
a cell phone in his rectum is a violation of a clearly established
constitutional right. Over twenty years ago, we noted that it was
the uniform view of the courts of appeals, including ours, "[t]hat
inmates retained some fourth amendment protection from unreasonable
searches of their persons." Bonitz, 804 F.2d at 171 (collecting
cases). Around the same time, the Supreme Court stated in Winston
that "[n]otwithstanding the existence of probable cause, a search
16
Until recently, our circuit described the test as a three-
pronged analysis, in which we "list[ed] separately the two sub-
parts of the 'clearly established' prong along with the first prong
and, as a result, [] articulated the qualified immunity test as a
three-part test" that was nonetheless "faithful to the substance of
the Court's two-part test . . . ." Id. at 269. In Maldonado, we
announced that we would abandon our three-step articulation of the
qualified immunity analysis in favor of the Supreme Court's two-
step approach, which had recently been reiterated in Pearson v.
Callahan, 129 S.Ct. 808, 815-16 (2009). Id. at 269 (citing Wallace
v. Reno, 194 F.3d 279, 283 (1st Cir. 1999) ("When a panel of this
circuit has decided an issue, another panel will ordinarily not
revisit that issue; but, of course, this limitation does not apply
where an intervening decision of the Supreme Court overturns or
undermines our earlier decision.")).
-40-
for evidence of a crime may be unjustifiable if it endangers the
life or health of the suspect." Winston 470 U.S. at 761. This
surgery so endangered the plaintiff. As the district court noted,
"[t]here can be no doubt that the surgery performed on Plaintiff
posed a risk to his physical well being." Sanchez, 573 F. Supp. 2d
at 486-87.
Moreover, because the surgery described in the complaint
and its attendant circumstances were so outrageous, we comfortably
conclude that a reasonable officer would understand that, under the
particular facts of this case, the surgery violated plaintiff's
clearly established right to be free from an unreasonable search.
See Wolfish, 441 U.S. at 559. As we recognized in Bonitz, the
legitimate penological objective of finding and removing contraband
from the persons of inmates cannot justify every search of a
prisoner in every situation. 804 F.2d at 172. Here, the surgery
was conducted after the results of four tests had indicated the
absence of contraband. A second x-ray, which plaintiff requested
in lieu of the surgery, might well have resolved the question
whether there was a cell phone in his rectum, and an x-ray taken
subsequent to the surgery confirmed the absence of a cell phone.
The surgery that was performed was no minor or routine procedure,
such as a blood draw, but a highly invasive surgery that required
full anesthesia and two days of recovery in the hospital. See
Winston, 470 U.S. at 766 ("[T}he intrusion on respondent's privacy
interests entailed by the operation can only be characterized as
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severe."); Schmerber, 384 U.S. at 769-71 (noting the "fundamental
human interests" implicated by "searches involving intrusions
beyond the body's surface" but finding blood draw constitutional,
in part, because it was "commonplace" and involved "virtually no
risk, trauma, or pain"). The complaint does not disclose any
exigent circumstances requiring the extreme measures taken here.
2. Dr. Deniz
We have already determined that Dr. Deniz qualifies as a
state actor under the first prong of the qualified immunity
analysis. Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.
2009). We have also concluded, under the second prong of the test,
that plaintiff's allegations establish the violation of a clearly
established constitutional right. We now must determine whether,
under the particular facts of this case, a reasonable physician
would have understood that her behavior violated that right. Id.
We conclude that Dr. Deniz's qualified immunity defense also fails
at this stage.
In assessing whether Dr. Deniz may raise a defense of
qualified immunity, we are guided by our analysis in Rodriques v.
Furtado, 950 F.2d 805, 815 (1st Cir. 1991). In Rodriques, we
recognized that "[i]t is a necessary though substantial imposition
upon the physician to require him or her to learn the
constitutional requirements of invasive body searches." Id. at
815. We concluded in that case that a doctor was entitled to a
defense of qualified immunity after performing a body cavity search
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of the appellant, a woman suspected of distributing narcotics. Id.
at 807, 815. Police had obtained a warrant for the search, which
directed that it be conducted by a physician at a local hospital.
Id. at 808. After consulting with the hospital's acting president,
the defendant, a doctor at the hospital, performed a "visual and
manual inspection" of the appellant's vaginal cavity. Id. The
appellant brought suit under 42 U.S.C. § 1983 alleging, in part,
that the search conducted by the doctor was "unreasonable both on
its face and in its method of execution." Id.
We found that the doctor was entitled to qualified
immunity because he had conducted the search pursuant to an
"objectively reasonable and facially valid warrant." Id. at 815.
We explained, "[t]here is no duty imposed upon the physician to
make inquiry of the officer regarding his basis for probable cause
where [a] warrant is objectively facially valid." Id. We noted,
however, that the mere existence of a warrant would not immunize a
doctor from liability where a reasonable physician under the
particular circumstances would realize that the warrant was
facially deficient. Id. at 815 n.12.
Two major factors differentiate this case from Rodriques.
First, the search described in the complaint was not performed
pursuant to judicial authorization in the form of a warrant or
judicial order. We explained in Rodriques that a physician's
reliance on a judicial authorization "not only benefits society by
effectuating acceptable means to execute body cavity searches
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pursuant to a warrant issued on probable cause, it also benefits
the party being searched by providing a safe means of conducting
the search in a medically approved manner." Id. at 815. Such
authorization by a judicial body is, in many instances, required
before prisoners can receive even salutary medical treatment when
that treatment is sought by the State rather than the inmate. See,
e.g., Sell v. United States, 539 U.S. 166, 180 (2003) ("[A] court
must find that important governmental interests are at stake"
before a criminal defendant can be involuntarily treated with
antipsychotic drugs.) (emphasis added).17
We see no benefit, however, to encouraging doctors to
participate in the type of invasive and potentially dangerous
surgery described in the complaint, performed only for a law
enforcement purpose, and without a judicial authorization affirming
17
See also, United States v. Williams, 356 F.3d 1045, 1053
(9th Cir. 2004) ("Both convicted prisoners and pretrial detainees
'possess[] a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process
Clause.'"), and cases and regulation cited, supra, n.9. As is the
case when prison officials seek to medicate inmates who suffer from
dangerous or incapacitating mental illness, the medical procedure
at issue here was conducted entirely at the behest of prison
officials. Although plaintiff signed a consent form, that consent
does not negate the Fourth Amendment issues raised by the surgery,
as we explained earlier. See Vanvliet, 542 F.3d at 264 n.2, 264-
65. We accept as true plaintiff's assertion in his complaint that
he was intimidated by John Doe into signing the form and that he
complied only after Dr. Deniz misrepresented the course of action
she would take after he was sedated. According to the complaint,
Dr. Deniz falsely assured plaintiff that before doing surgery, she
would perform yet another rectal examination under anesthesia.
Plaintiff did not, therefore, consent to the surgery as it was
performed.
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the necessity of such action. Rather, as we indicated in
Rodriques, physicians asked to perform invasive body searches
should not comply uncritically with the requests of prison
officials and thereby become complicit in depriving prisoners of
their constitutional rights.
Second, this case differs from Rodriques in that the
surgery alleged in the complaint far exceeds the scope of the
visual and manual examination conducted by the physician in that
case. As we discussed above, a surgical invasion is far more
intrusive than the already severe encroachment on a prisoner's
bodily privacy occasioned by a manual body cavity search. See
Winston, 470 U.S. at 757-59. That difference in scope also
requires that the search at issue in this case be treated
differently from the search in Rodriques.
In summary, a reasonable doctor should have understood
that the surgery at issue here, performed at the insistence of the
correctional authorities and not for plaintiff's benefit, violated
plaintiff's Fourth Amendment right to be free of unreasonable
searches and seizures. The invasive surgery described in the
complaint -- conducted without the force of judicial authorization
and for the sole purpose of extracting contraband that had resisted
discovery in multiple rectal searches and two forced bowel
movements -- fell beyond any objective test of reasonableness. On
the facts alleged, we do not need to identify the precise level of
familiarity with the Fourth Amendment fairly chargeable to a
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physician acting as a state agent. No detailed knowledge of the
law was required to understand that a physician should not perform
invasive, non-medically required surgery on a prisoner in
circumstances such as those described in the complaint. The
conduct described in the complaint violated plaintiff's clearly
established rights. A reasonable doctor would have understood as
much.
E. Supplemental Law Claims
Plaintiff's complaint also raised supplemental claims
under Puerto Rico law, including claims under Article 1802 of
Puerto Rico's Civil Code. P.R. Laws Ann. tit. 31 § 5141. The
district court dismissed the state law claims in light of its
dismissal of the federal law claims. See Rodriguez v. Doral
Mortgage Corp., 57 F.3d 1168, 1177 (1st Cir. 1995). Because we
have determined that it was error to dismiss some of plaintiff's
federal claims against the correctional defendants and Dr. Deniz,
we reinstate plaintiff's Puerto Rico law claims against those
defendants. See 28 U.S.C. § 1367.
IV.
For the reasons set forth above, we vacate the dismissal
of plaintiff's Fourth Amendment claims against Sergeant Cabán, John
Doe and Dr. Deniz related to the exploratory surgery and the Puerto
Rico law claims against those defendants. We affirm the dismissal
of the Fourth Amendment claims against the administrative
correctional defendants related to the exploratory surgery. We
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also affirm the dismissals of the Fourth Amendment claims related
to the x-rays and the strip searches performed at the correctional
institution; the dismissals of the Fourth Amendment claims related
to the rectal examinations performed at the hospital; and the
dismissal of plaintiff's Fifth, Eighth, and Fourteenth Amendment
claims. Costs are awarded to appellant.
So ordered.
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Sanchez v. Pereira-Castillo
Court: Court of Appeals for the First Circuit
Date filed: 2009-12-23
Citations: 590 F.3d 31
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