United States Court of Appeals
For the First Circuit
No. 09-1471
ERIDANIA MARTÍNEZ,
Plaintiff, Appellant,
v.
HONGYI CUI,
Defendant, Appellee.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Lynch, Chief Judge,
Boudin and Howard, Circuit Judges.
Hector E. Pineiro, with whom Lizabel M. Negrón-Vargas, Robert
A. Scott, and Law Office of Hector Pineiro were on brief, for
appellant.
Kenneth R. Kohlberg, with whom McCarthy, Bouley & Barry, PC
was on brief, for appellee.
June 17, 2010
LYNCH, Chief Judge. Eridiana Martínez brought federal
and state claims alleging that Dr. Hongyi Cui, a first-year medical
resident, sexually assaulted her by digital rape during an
examination when she was an emergency-room patient at the UMass
Memorial Medical Center. A jury, after trial, rejected her claims.
On appeal, Martínez alleges there was error in the
district court's evidentiary rulings and jury instructions. The
evidence claim raises the relationship between Rule 403 of the
Federal Rules of Evidence, which permits courts to exclude relevant
evidence on the ground of prejudice or confusion, and Rule 415,
which removes the bar on propensity evidence and permits admission
of evidence of similar acts of sexual misconduct in civil cases
concerning sexual assault. The instruction claim raises the issue
whether the court correctly instructed the jury that Martínez had
to show Cui's conduct "shocks the conscience" to prevail on her
Fourteenth Amendment substantive due process claim.
We affirm.
I.
After a car accident on February 10, 2003, Eridiana
Martínez was brought by ambulance to the emergency department (ED)
at UMass Memorial Medical Center in Worcester, Massachusetts.
Martínez claims Cui digitally raped her, vaginally and rectally,
during an examination. Cui denied that he ever inserted his finger
in or examined her vagina, and hospital records supported him. A
-2-
rectal exam was performed, which the parties agreed was medically
appropriate. The jury accepted Cui's version and rejected all of
Martínez's claims after about an hour and a half of deliberations.
The hospital records and trial testimony established the
following.1 At the ED, Martínez was placed in a cubicle, where she
had little privacy. At that time, the ED at the UMass medical
center was located in a long hallway, without private rooms, which
held treatment areas divided into three cubicles by partial
curtains. Martínez could hear patients in adjoining cubicles, only
a few feet away, complain of pain.
On admission, Martínez complained of severe pain in her
neck and on the left side of her body. She was treated by Dr. Cui,
a surgical resident in his internship year, who was accompanied by
a Spanish interpreter and, at times, a nurse. According to
hospital records (the ED Physician Record), Cui performed an
initial trauma evaluation and a physical exam around 2:00 p.m. Cui
recorded that a rectal exam and stool occult blood test had been
performed on Martínez; he crossed out the line for a vaginal exam
on the form because he did not perform one. Cui did not
specifically recall this patient, but the jury could have found he
recorded information about his own examination of her.
1
In its recitation of the facts surrounding the incident
with Martínez, Cui's brief relies almost entirely on a pretrial
motion filed in the district court rather than on the trial
transcript. The brief recites facts that were not established at
trial. The brief was improper in doing so, and counsel is warned.
-3-
As an intern, Cui had to be closely supervised by the
attending physician. Cui reviewed his exam with Dr. Brush, the
attending physician in the ED, who, in turn, performed his own exam
and ordered x-rays and pain medication. Brush also wrote an
attending note in the ED Physician Record. Martínez was discharged
at 3:45 p.m. Before her discharge, Dr. Brush recorded that he had
reviewed the ED Physician Record--which said that no vaginal exam
had been performed and that a rectal exam had been performed--with
Cui and the patient. Martínez also signed the record.
Martínez testified at trial that Cui initially examined
her in front of a nurse and translator and then sent her for x-
rays. She claimed she was returned alone to her cubicle after x-
rays, and Cui returned, also alone. There, Cui lifted her leg,
inserted his finger in her rectum and then her vagina, and touched
her clitoris. She testified that she did not scream but asked him
not to touch her. She also testified that he was drooling during
the exam. This encounter lasted about five minutes, according to
Martínez, and ended when someone called for Cui.
Several facts presented at trial undermined Martínez's
story. Martínez testified that Cui rectally assaulted her once.
Yet even Martínez's expert witness agreed that a rectal examination
was within the standard of care under the circumstances, though a
vaginal examination was not. A rectal exam was called for to
determine whether, among other things, Martínez had suffered
-4-
internal or spinal injuries. Consistent medical testimony also was
that, to perform a rectal exam while a patient is strapped to a
stretcher, three people are needed to help turn and hold the
patient on her side. Martínez did not explain how Cui could have
assaulted her while she was still on the stretcher without anyone
present. Martínez also did not recall seeing Dr. Brush at all that
day, nor could she explain the presence of her signature next to
his on the ED Physician Record.
Martínez also conceded having testified inconsistently at
a deposition. Martínez admitted that she had previously testified
that she cried for help during the alleged attack; she insisted at
trial (though not in the deposition) that she had done so
"quietly." She agreed she had testified earlier, but not at trial,
that Cui was biting his lip and "getting off" during the alleged
attack. And she admitted that she had previously testified that
another patient was in the next cubicle, that she could hear the
patients in other cubicles, and that someone from radiology walked
into her cubicle during her initial exam with Cui.
In the aftermath of the ED visit, Martínez said, she was
so traumatized from Cui's alleged assault that she feared having
any form of practitioner treat her who was male. Yet she visited
the office of Dr. Ron Tebo, a chiropractor, eighteen times in 2003,
beginning just two days after the alleged attack. She tried to
reconcile her claim with testimony that Tebo himself touched her
-5-
only once and never with his hands. Martínez was treated by
several other male medical personnel in 2003 after February 10 as
well.
Martínez did not make any claim of an inappropriate
examination to hospital personnel before she was discharged.
Martínez testified that a friend, Mr. Yrure, came into the cubicle
shortly after the assault and she reported it to him. Yrure did
not testify at trial, and the judge instructed the jury it could
draw a negative inference from the absence of any witness.
Martínez testified that she told her primary care
provider, Mary Sullivan, a nurse practitioner, on February 14 over
the phone that Cui had assaulted her. Sullivan testified that
Martínez first told her about the alleged assault at the end of an
appointment on February 18, rather than four days earlier as
Martínez claimed. Sullivan obtained the ED Physician Record from
Martínez's ED visit and went over it with Martínez, who was "upset"
and "tearful" when she left. On March 14, 2003, more than a month
after the alleged assault, Martínez first filed a formal complaint
with the hospital. The Board of Registration in Medicine (the
Board) was notified.
More than a year later, on May 19, 2004, the Board
initiated disciplinary proceedings against Cui based on Martínez's
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allegations, as well as allegations by another woman, B.H.,2 who
claimed that Dr. Cui, while still a surgical resident in his intern
year, inserted his finger in her vagina during a postoperative exam
on March 18, 2003. The Division of Administrative Law Appeals
(DALA) conducted exhaustive proceedings, which included discovery
and testimony from dozens of witnesses. On January 30, 2007, a
DALA magistrate found that Cui had committed no misconduct and
recommended that the Board dismiss charges against Cui, which the
Board did. The jury was not told this history; it was only
informed there had been a prior proceeding.
Meanwhile, on February 6, 2006, Martínez had sued Cui in
federal court under 42 U.S.C. § 1983, alleging violations of her
rights under the Fourth, Fifth, and Fourteenth Amendments of the
U.S. Constitution, as well as several state law claims. Her
federal claims alleged that Cui, as a state employee,3 had violated
her right to bodily integrity by sexually assaulting her. The
district court appropriately characterized this claim as a
Fourteenth Amendment substantive due process claim.
2
We will not use B.H.'s full name due to the personal
nature of her illness and treatment. Though B.H. reported to
hospital personnel that she felt uncomfortable during Cui's exam
immediately afterward, B.H. alleged that Cui inserted his finger in
her vagina only after being contacted by representatives of the
Board.
3
Cui was a resident doctor in the UMass health system.
The parties stipulated that he was a state employee acting under
the color of state law.
-7-
Martínez challenges several evidentiary rulings. As to
B.H., the court ruled that (a) B.H. could not testify for Martínez
about Cui's alleged sexual assault of B.H. and (b) B.H. could not
testify as a rebuttal witness that Cui had performed a rectal
examination on her without a chaperone.
The court also ruled that the parties could not refer to
the DALA proceedings but could mention a "prior proceeding" when
necessary. The court further permitted the defense to impeach
Martínez using records from her male chiropractor, Dr. Ron Tebo,
which showed that she visited Tebo's offices after Cui's alleged
attack. But the court did not permit Martínez to present two
rebuttal witnesses to undermine these records.
On February 9, 2009, after about an hour and a half of
deliberation, a jury returned a general verdict in favor of Cui on
all claims, federal and state. The court denied Martínez's motion
for a new trial. Martínez timely appealed.
II.
A. The District Court's Evidentiary Rulings Were Not Error
We review preserved evidentiary objections for abuse of
discretion; we affirm if any error did not affect the parties'
substantial rights and likely did not affect the outcome of the
case. Guillemard-Ginorio v. Contreras-Gomez, 585 F.3d 508, 534
(1st Cir. 2009). We review objections not raised in the district
-8-
court for plain error. Microfinancial, Inc. v. Premier Holidays
Int'l, Inc., 385 F.3d 72, 80 (1st Cir. 2004).
1. B.H.'s Testimony
Martínez argues that the district court should have
admitted B.H.'s testimony as evidence of a similar act in a civil
case concerning sexual assault under Fed. R. Evid. 4154 or at least
in rebuttal under Rule 607. Martínez preserved only the second
objection, and so we review her Rule 415 argument for plain error.
Though Martínez asked the district court to admit B.H.'s testimony,
she did not ever argue that this testimony was admissible under
Rule 415, and so the court did not mention Rule 415 in its rulings.
We conclude that there was, in any event, no error. Rule
415 is entitled "Evidence of Similar Acts in Civil Cases Concerning
Sexual Assault or Child Molestation." It provides, "In a civil
case . . . predicated on a party's alleged commission of conduct
constituting an offense or offenses of sexual assault . . .,
evidence of that party's commission of another offense or offenses
of sexual assault is admissible and may be considered." Fed. R.
Evid. 415(a).
4
Martínez also argues to us, as she did to the district
court, that B.H.'s testimony was admissible under Rule 404(b) as
evidence of Cui's intent or an absence of a mistake or accident.
We uphold the district court's decision to exclude B.H.'s testimony
under Rule 403, which resolves her Rule 404(b) and Rule 415
arguments.
-9-
In turn, Rule 403's balancing test permits courts to
exclude otherwise admissible, relevant evidence if, inter alia,
"its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury."
Fed. R. Evid. 403.
We start with a few basics. Rule 415, like its
counterparts Rules 413 and 414, was enacted in 1994 as part of the
Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No.
103-322, § 320935, 108 Stat. 1805, 2135-37, and became effective in
1995, United States v. Larson, 112 F.3d 600, 604 (2d Cir. 1997).
The drafters' purpose was to supersede Rule 404(b)'s prohibition on
evidence of like conduct showing propensity in sexual assault
cases. See United States v. Meacham, 115 F.3d 1488, 1491-92 (1st
Cir. 1997); 2 J.B. Weinstein & M.A. Berger, Weinstein's Federal
Evidence § 413.04[1], at 413-10 to -11 (J.M. McLaughlin ed., 2d ed.
2010).
After Rules 413-415 were enacted, the question arose
whether evidence admissible under these rules was subject to Rule
403's balancing test for prejudicial, confusing, or misleading
evidence. Weinstein & Berger, supra § 413.04[2], at 413-12. We
agree with the conclusion, universal among the courts of appeals,
that nothing in Rule 415 removes evidence admissible under that
rule from Rule 403 scrutiny. See, e.g., Doe v. Smith, 470 F.3d
331, 346 (7th Cir. 2006), abrogated on other grounds by T.E. v.
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Grindle, 599 F.3d 583 (7th Cir. 2010); Seeley v. Chase, 443 F.3d
1290, 1294-95 (10th Cir. 2006); Blind-Doan v. Sanders, 291 F.3d
1079, 1082-83 (9th Cir. 2002); see also United States v. Guardia,
135 F.3d 1326, 1330 (10th Cir. 1998) (collecting cases applying
Rule 403 to Rules 413 and 414); Weinstein & Berger, supra
§ 415.04[2], at 415-12. The intent of the drafters was that
evidence under Rule 415 be subject to Rule 403. See Larson, 112
F.3d at 604.
Questions have also been raised about whether Rules 413-
415 change how courts perform the Rule 403 balancing tests. See
Weinstein & Berger, supra § 415.04[2], at 415-13 to -16 (describing
circuit disagreement). That is primarily because evidence that
Rules 413-415 make admissible--evidence of similar sexual assaults
by the defendant--can well be the kind of inflammatory, unduly
complex evidence courts often exclude under Rule 403. See Fed. R.
Evid. 403; 23 Wright & Graham, Federal Practice and Procedure
§ 5416, at 544 (Supp. 2009).
Some appellate courts have imposed external, judicially
crafted rules as to district judges' consideration of evidence
under Rule 415. Two circuits have required district courts to
apply Rule 403 with "careful attention to both the significant
probative value and the strong prejudicial qualities" of this
evidence. Seeley, 443 F.3d at 1295 (quoting Guardia, 135 F.3d at
1330) (internal quotation marks omitted); see also Doe ex rel.
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Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1268 (9th Cir. 2000).
Others seemingly have instructed district courts to apply Rule 403
less stringently, at least in some cases, to avoid having Rule 403
swallow evidence Congress clearly intended to make admissible.
E.g., Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 156 (3d Cir.
2002); see also United States v. Seymour, 468 F.3d 378, 385 (6th
Cir. 2006); United States v. Gabe, 237 F.3d 954, 959-60 (8th Cir.
2001); Larson, 112 F.3d at 604. Several circuits have adopted
factors district courts can or should consider to evaluate the
admissibility of evidence under Rules 415 and 403. E.g., Seeley,
443 F.3d at 1295; Johnson, 283 F.3d at 156; Glanzer, 232 F.3d at
1268-69. And at least one has suggested that appellate courts
should more carefully scrutinize district courts' decisions under
Rules 413-415. See United States v. LeMay, 260 F.3d 1018, 1022
(9th Cir. 2001).
We reject these approaches and have no reason to adopt
special rules constraining district courts' usual exercise of
discretion under Rule 403 when considering evidence under Rule 415,
see Doe, 470 F.3d at 346; see also, e.g., United States v. Dillon,
532 F.3d 379, 388-90 (5th Cir. 2008); United States v. Julian, 427
F.3d 471, 485-87 (7th Cir. 2005), which we will review under the
ordinary abuse-of-discretion standard, see Dillon, 532 F.3d at 387.
Of course district courts must apply Rule 403 with
awareness that Rule 415 reflects a congressional judgment to remove
-12-
the propensity bar to admissibility of certain evidence.
Cf. United States v. Rogers, 587 F.3d 816, 822 (7th Cir. 2009)
("Congress has said that . . . it is not improper to draw the
inference that the defendant committed this sexual offense because
he has the propensity to do so."). That awareness includes the
fact that the Rule 403 analysis also applies. See Fed. R. Evid.
403; Weinstein & Berger, supra § 403.02[1][a], at 403-5. Nothing
in the text of Rules 413-415 suggests these rules somehow change
Rule 403. See Fed. R. Evid. 413-415 (making some propensity
evidence merely "admissible" but not mentioning Rule 403 and indeed
cautioning that these rules do not prevent consideration of
evidence under any other rule).
As to the ruling at issue, Martínez argues that the
district court applied Rule 403 too stringently to B.H.'s testimony
and should have accepted her testimony as evidence of a similar
sexual assault under Rule 415. Though the court did not consider
Rule 415 (because Martínez never argued this point), the court did
accept that "if there were two identical or similar instances of
the same type of conduct," that evidence would be "arguably
relevant" to show Dr. Cui's intent or absence of mistake or
accident under Rule 404(b). But it ruled that "there is a great
danger of unfair prejudice or confusion here. The trial would be
as much about [B.H.] as Ms. Martinez."
-13-
The district court went on to explain why it was
excluding this evidence under Rule 403's balancing test. The court
noted it had the "benefit of a highly developed evidentiary record
in the DALA and Board of Registration proceedings," an "unusual
situation." Those proceedings revealed two reasons to exclude
B.H.'s testimony as potentially unfairly prejudicial and, so,
likely to confuse the issues or mislead the jury.
First, there were significant medical distinctions in the
two treatment situations that would have required extensive
explanation.5 Martínez was in an auto accident and "whatever
trauma she suffered, it was not in her vaginal or anal area." By
contrast, B.H. had undergone surgery for Crohn's disease that
basically removed her rectum and anus. "Her intestine was rerouted
to a colostomy bag, and she had been suffering from substantial
leakage of fecal matter and . . . fluid into her vagina." Dr. Cui
had to perform a postoperative exam to ensure B.H.'s surgical
incisions were not bleeding or infected. B.H., heavily sedated on
morphine, claimed that she felt--not that she saw--Dr. Cui insert
his finger in her vagina. Expert testimony established that she
would have had a hard time differentiating what Dr. Cui was
5
The district court did not say that the insertion of a
doctor's finger into patients' vaginas when not medically indicated
were dissimilar events. Had there been such a holding, that would
be problematic.
-14-
touching, and in any event a vaginal exam would have been
appropriate.
Second, B.H.'s testimony would have required "a
minitrial," indeed something "in the nature of a maxitrial," to
probe the complexity of B.H.'s condition, including expert
testimony. The record fully supports the district court's
evaluation of the underlying facts, which are in truth even more
complicated than the recitation that the court gave. That, in
turn, fully supports the court's judgment that Martínez's case
could get lost in the details of the "maxitrial," which would have
been unduly prejudicial and likely to confuse the issues and
mislead the jury. See Fed. R. Evid. 403.
The exclusion of the rebuttal evidence from B.H. is even
more easily resolved against Martínez. The district court had
allowed Martínez's counsel to elicit from Cui, during cross-
examination, that Cui had examined an unnamed patient's perineum
without a chaperone. The court could conclude that further
testimony from B.H. would require going into a great deal of
background that, we have already explained, was collateral to the
issues at trial and likely to confuse the jury.
2. References to a "Prior Proceeding" and Vouching
Martínez next argues that defense counsel prejudiced the
jury by essentially revealing that Cui had been previously cleared
of misconduct. The district court suppressed references to the
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DALA proceedings and the Board's decision not to discipline Cui.
But it allowed counsel to refer to a "prior proceeding" when
appropriate. At trial defense counsel nevertheless elicited,
without objection from Martínez, that Cui had not lost his license.
As we understand her brief, Martínez argues that the
combination of references to a "prior proceeding" and evidence that
Cui was still licensed told the jury exactly what the court had
excluded: that a prior proceeding had cleared Cui of misconduct.
Because she did not object at trial to evidence of Cui's license
status, Martínez must show the district court committed plain error
by admitting this evidence, which she cannot. See United States v.
Torres-Oliveras, 583 F.3d 37, 41 (1st Cir. 2009).
The court's limiting instructions further ensured this
evidence did not affect Martínez's substantial rights or undermine
the fairness of the judicial process. See id. During trial the
district court cautioned the jury that "there were a number of
pretrial proceedings in this case . . . where witnesses made
statements . . . . The nature of the proceedings is not important.
The issue is . . . whether a statement was made." And the jury
instructions told the jury to base its verdict only on the
testimony it had heard in that trial.
To the extent Martínez tries to avoid her failure to
object by arguing, on appeal, that references to a "prior
proceeding" were inappropriate (an argument she has preserved),
-16-
this claim is meritless. The court did not abuse its discretion by
concluding that allowing counsel to mention a "prior proceeding"
was a sensible, neutral way for counsel to refer to the DALA
proceedings when appropriate, such as to impeach witnesses, without
telling the jury what happened.
Martínez additionally argues the defense prejudiced the
jury by "vouching" for Dr. Cui in opening statement6 when counsel
told the jury, "[Cui] is here in your community. He is at your
service, and I'm proud to represent him." We bypass whether
Martínez waived this objection.
In civil cases, to evaluate allegedly improper conduct by
counsel, we examine the totality of the circumstances. P.R.
Aqueduct & Sewer Auth. v. Constructora Lluch, Inc., 169 F.3d 68, 82
(1st Cir. 1999). We consider "the nature of the comments, their
frequency, their possible relevancy to the real issues before the
jury, the manner in which the parties treated the comments, the
strength of the case, and the verdict itself." Id. And we only
reverse "upon a showing of prejudice." Id. There was more than
adequate basis for the jury to reject Martínez's version of events.
despite this comment.
6
Martínez also argues that defense counsel's closing
argument was prejudicial. Because she does not point to specific
improper statements, this argument is waived.
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3. Dr. Tebo's Records and Testimony Rebutting Those
Records
Martínez next argues that the district court should not
have permitted the defense to cross-examine her by using records
from Dr. Tebo's office. Tebo himself did not take the stand, but
his records showed that Martínez received treatment at Tebo's
office eighteen times in 2003 starting two days after her ED visit.
They were used to impeach Martínez's testimony that the alleged
attack by Cui left her unable to see male practitioners.
Martínez argues this impeachment by contradiction was
improper because the Tebo records, used for the impeachment, were
collateral. See United States v. Lipscomb, 539 F.3d 32, 39 (1st
Cir. 2008). A topic is collateral if it is being introduced merely
to contradict a witness and does not bear upon a substantive point
at issue in trial. See id.; 1 K.S. Broun, McCormick on Evidence
§ 45, at 215 (6th ed. 2006); see also 27 Wright & Gold, Federal
Practice & Procedure § 6096, at 659-62 (2d ed. 2007).
The district court could conclude in its discretion that
Tebo's records should not have been excluded as collateral. The
heart of Martínez's lawsuit was Cui's alleged sexual assault. Her
claim that she feared being treated by male practitioners went to
both the credibility of her story and the extent of her damages.
Showing that Martínez had visited Tebo's office eighteen times,
including two days after the alleged assault, undermined these
parts of Martínez's claim.
-18-
The district court also did not abuse its discretion
excluding testimony from a Tebo patient who had no knowledge of
Martínez's treatment but would have testified that Tebo often had
other staff members treat patients. Nor did it improperly exclude
testimony from an expert that Tebo's care and record-keeping was
improper. The district court allowed Martínez to testify that she
did not see Tebo. The testimony from these witnesses would not
have enhanced her testimony; the witnesses merely would have
challenged Tebo's general practices, an issue collateral to those
at trial.
B. The Shocks-the-Conscience Standard Applies to Claims that
an Executive Official's Sexual Assault Violated the
Substantive Due Process Clause
Martínez argues that the district court instructed the
jury to apply the incorrect substantive rule to her claim that
Cui's alleged sexual assault violated her substantive due process
rights. We review her claim of legal error in the court's jury
instructions de novo. Uphoff Figueroa v. Alejandro, 597 F.3d 423,
434 (1st Cir. 2010).
The court instructed the jury that Martínez had to prove
"that the behavior of the defendant was so egregious and so
outrageous, that it may fairly be said to shock the contemporary
conscience." Martínez asked the district court to say that Cui's
conduct "simply needs to violate a right of bodily integrity." On
appeal, Martínez says that she did not need to show that her
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allegations, if true, shock the conscience. Martínez argues that
the instructions should have required no further finding than that
there was an invasion of her bodily integrity.
Martínez is wrong, as the Supreme Court established in
County of Sacramento v. Lewis, 523 U.S. 833 (1998), if not earlier.
Martínez's argument relies on a reading of language in two older
First Circuit cases, Brown v. Hot, Sexy & Safer Productions, Inc.,
68 F.3d 525, 531 (1st Cir. 1995), and Pittsley v. Warish, 927 F.2d
3, 6 (1st Cir. 1991), that parties could establish substantive due
process claims either by showing the invasion of an identified
right or by showing that an officer's conduct shocks the
conscience.7 That reading of those cases is not good law, has been
superseded by Supreme Court caselaw, and has been rejected, even
before this case. DePoutot v. Raffaelly, 424 F.3d 112, 118 n.4
(1st Cir. 2005).
7
Brown identified "two theories under which a plaintiff
may bring a substantive due process claim. Under the first, a
plaintiff must demonstrate a deprivation of an identified liberty
or property interest protected by the Fourteenth Amendment. Under
the second, a plaintiff is not required to prove the deprivation of
a specific liberty or property interest, but, rather, he must prove
that the state's conduct 'shocks the conscience.'" 68 F.3d at 531
(quoting Pittsley, 927 F.2d at 6) (internal citations omitted).
Similarly, Pittsley concluded, based on Supreme Court
jurisprudence as it stood in 1991, that the "Court has enunciated
two alternative tests by which substantive due process is examined.
Under the first theory, it is not required that the plaintiffs
prove a violation of a specific liberty or property interest;
however, the state's conduct must be such that it "shocks the
conscience." To succeed under the second theory, a plaintiff must
demonstrate a violation of an identified liberty or property
interest protected by the due process clause." 927 F.3d at 6.
-20-
Lewis clarified that the shocks-the-conscience test,
first articulated in Rochin v. California, 342 U.S. 165 (1952),
governs all substantive due process claims based on executive, as
opposed to legislative, action. 523 U.S. at 845-46; Mongeau v.
City of Marlborough, 492 F.3d 14, 17-18 (1st Cir. 2007); Coyne v.
Cronin, 386 F.3d 280, 287-88 (1st Cir. 2004); Hasenfus v.
LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999); accord, e.g., C.N. v.
Willmar Pub. Schs., Indep. Sch. Dist. No. 347, 591 F.3d 624, 634
(8th Cir. 2010); Ellis ex rel. Estate of Ellis v. Ogden City, 589
F.3d 1099, 1101 (10th Cir. 2009); Chambers ex rel. Chambers v. Sch.
Dist. of Philadelphia Bd. of Educ., 587 F.3d 176, 190 (3d Cir.
2009); Wolf v. Fauquier County Bd. of Supervisors, 555 F.3d 311,
323 (4th Cir. 2009); Davis v. Carter, 555 F.3d 979, 982 (11th Cir.
2009); Benzman v. Whitman, 523 F.3d 119, 126 (2d Cir. 2008).8 But
see Grindle, 599 F.3d at 589.
Lewis expressly rejected the notion, which Brown assumed,
that rights protected by the substantive Due Process Clause as
applied to executive actors are somehow separate from the shocks-
the-conscience test. Lewis held that plaintiffs must show, not
8
That is the conclusion of most commentators as well.
E.g., R. Chesney, Old Wine or New? The Shocks-the-Conscience
Standard and the Distinction Between Legislative and Executive
Action, 50 Syracuse L. Rev. 981, 993 (2000) ("[S]atisfaction of the
shocks-the-conscience standard, as employed in Lewis, is a
necessary but not sufficient condition for the maintenance of a
substantive due process challenge to executive action."). But see
R.B. Levinson, Reining in Abuses of Executive Power Through
Substantive Due Process, 60 Fla. L. Rev. 519, 546 (2008).
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only that the official's actions shock the conscience, but also
that the official violated a right otherwise protected by the
substantive Due Process Clause. 523 U.S. at 847 n.8; Estate of
Bennett v. Wainwright, 548 F.3d 155, 162 (1st Cir. 2008), abrogated
on other grounds by Maldonado v. Fontanes, 568 F.3d 263 (1st Cir.
2009); Pagán v. Calderón, 448 F.3d 16, 32 (1st Cir. 2006);
Rivera v. Rhode Island, 402 F.3d 27, 33-36 (1st Cir. 2005); see
also, e.g., C.N., 591 F.3d at 634; Chambers, 587 F.3d at 190.
Lewis justified this two-tiered approach on theoretical
and practical grounds. Lewis explained that "[t]he touchstone of
due process is protection of the individual against arbitrary
action of government," 523 U.S. at 845 (quoting Wolff v. McDonnell,
418 U.S. 539, 558 (1974)) (alteration in original), and "only the
most egregious official conduct can be said to be 'arbitrary in the
constitutional sense,'" id. at 846 (quoting Collins v. Harker
Heights, 503 U.S. 115, 129 (1992)). Restricting substantive due
process on executive official actions also prevents the Fourteenth
Amendment from becoming a "font of tort law." Id. at 848-49
(quoting Paul v. Davis, 424 U.S. 693, 701 (1976)) (internal
quotation marks omitted). Only conscience-shocking behavior can be
sufficiently arbitrary and egregious to be of constitutional
significance. Id. at 846-47 & n.8. Once plaintiffs have shown a
constitutionally significant level of culpability, they then may
turn to establishing that a protected right was offended. Id. at
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847 n.8; see also Washington v. Glucksberg, 521 U.S. 702, 719-24
(1997) (outlining how to determine whether the substantive Due
Process Clause protects a proposed right).9
Lewis's analysis flatly overrules the contrary language
in Brown and Pittsley, see id. at 847 n.8, as this court has
already recognized, DePoutot, 424 F.3d at 118 n.4.
The conscience-shocking test is now an essential part of
any substantive due process claim against a government actor. We
held this in DePoutot and have consistently applied that test
since. E.g., González-Fuentes v. Molina, No. 08-1818, slip op. at
27 (1st Cir. June 10, 2010); Espinoza v. Sabol, 558 F.3d 83, 87
(1st Cir. 2009); Estate of Bennett, 548 F.3d at 162; Mongeau, 492
F.3d at 17-18; Ramos-Pinero v. Puerto Rico, 453 F.3d 48, 53 (1st
Cir. 2006); Pagán, 448 F.3d at 32; McConkie v. Nichols, 446 F.3d
258, 260 (1st Cir. 2006).
Several circuits also hold that plaintiffs claiming that
an executive officer's conduct, grouped under the term "sexual
assault," violated the substantive Due Process Clause must show the
9
There is some tension between how Lewis and Glucksberg
described the order in which courts should proceed to identify
whether a plaintiff has identified a protected right. See Lewis,
523 U.S. at 847 n.8; Glucksberg, 521 U.S. at 720-21.
We need not resolve this tension, however, because we do not
assume that the Supreme Court has required a lock-step, two-part
analysis in which the second step in Lewis (identifying a right)
cannot take place first. The Court recently rejected a mandatory
lock-step, two-part analysis for qualified immunity, see Pearson v.
Callahan, 129 S. Ct. 808, 818 (2009), and some of the reasons for
its holding would apply in this context as well.
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officer's conduct shocked the conscience as part of their claims.10
We agree. See Cummings v. McIntire, 271 F.3d 341, 342-43, 344-45
(1st Cir. 2001) (applying the conscience-shocking test when a
plaintiff alleged an officer shoved him); see also Maldonado, 568
F.3d at 272-73 (opining though not holding that the conscience-
shocking test likely applies to deprivations of property). In this
case the jury was correctly instructed on the shocks-the-conscience
element.
We also note that the jury may well have rejected
Martínez's claim because it simply did not believe there was a
digital rape, without reaching the shocks-the-conscience inquiry.
In fact, Cui's closing argument was devoted entirely to denying
that the "rape" ever happened. He urged that it defied common
sense to think that an intern would rape a patient--and risk his
career in the process--in mid-afternoon, for five minutes, while
people were walking in and out of her cubicle and around the busy
ED. Counsel also focused on Martínez's credibility, touching on
her own inconsistent statements and story, differences between her
story and those of other witnesses, and her failure to present
10
See, e.g., United States v. Guidry, 456 F.3d 493, 506-07
(5th Cir. 2006); Rogers v. City of Little Rock, 152 F.3d 790, 797
(8th Cir. 1998); Lillard v. Shelby County Bd. of Educ., 76 F.3d
716, 725-26 (6th Cir. 1996); see also Wilson v. Luttrell, 230 F.3d
1361, at *9 (Table) (6th Cir. 2000) (applying Lillard after Lewis).
Some courts have noted in dicta that the shocks-the-conscience
test likely applies to sexual assault claims. See, e.g., Williams
v. Berney, 519 F.3d 1216, 1223-24 (10th Cir. 2008); Fontana v.
Haskin, 262 F.3d 871, 882 & n.7 (9th Cir. 2001).
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supporting witnesses. Cui's closing never even mentioned the
phrase "shocks the conscience."
We add a few points of caution. As the Lewis Court
noted, whether behavior is conscience-shocking may be informed in
some cases by the nature of the right violated. See 523 U.S. at
847 n.8.11 Martínez's claim that there is some absolute,
generalized substantive due process right to the protection of
bodily integrity from executive action is simply wrong, however.
The Supreme Court has recognized an interest in one's bodily
integrity, but it has always defined the scope of that interest
against the government's undeniable competing interests in a
variety of contexts.12 E.g., Cruzan v. Dir., Mo. Dep't of Health,
497 U.S. 261, 278-82 (1990) (balancing a person's liberty interest
in refusing medical treatment against the relevant state
11
The precise relationship between the shocks-the-
conscience inquiry and identified rights protected by the Due
Process Clause is more complex than we need to discuss here. See
Lewis, 523 U.S. at 856-58 (Kennedy, J., concurring) (attempting to
reconcile Lewis and Glucksberg); id. at 860-62 (Scalia, J.,
concurring in the judgment); see also, e.g., Galdikas v. Fagan, 342
F.3d 684, 690 n.3 (7th Cir. 2003), abrogated on other grounds by
Spiegla v. Hull, 371 F.3d 928 (7th Cir. 2004); Levinson, supra, at
544-47; Chesney, supra, at 997-1003.
12
The government regularly regulates in ways that affect a
person's body to protect the public interest. See, e.g.,
Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) (upholding
compulsory vaccination because, in society, "persons and property
are subjected to all kinds of restraints and burdens in order to
secure the general comfort, health, and prosperity of the state"
(quoting Hannibal & St. J.R. Co. v. Husen, 95 U.S. 465, 471
(1877))).
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interests); Washington v. Harper, 494 U.S. 210, 220-27 (1990)
(noting an inmate's liberty interest to be free from the state
administering unwanted antipsychotic drugs but holding he received
all process due in light of contrary state interests); Winston v.
Lee, 470 U.S. 753, 758-63 (1985) (balancing, in a Fourth Amendment
case, an individual's interest to be free from evidence searches
that penetrate the skin with society's interest in that
information); see also Breithaupt v. Abram, 352 U.S. 432, 439
(1957) ("As against the right of an individual that his person be
held inviolable . . . must be set the interests of society . . .
."). Indeed, Court cases recognizing the "right to bodily
integrity" cite cases--including Rochin, the foundational shocks-
the-conscience case--that balance bodily integrity against the
government interest. Glucksberg, 521 U.S. at 720; see also, e.g.,
Vacco v. Quill, 521 U.S. 793, 807 (1997).
To the extent Martínez argues that Cui's examination of
her fell below the proper standard of care, she comes perilously
close to trying to constitutionalize medical malpractice tort law.
Evidence that medical treatment did not meet the standard of
medical care is a negligence standard. The Supreme Court has
repeatedly emphasized that due process claims may not be used in
that manner. See Lewis, 523 U.S. at 848-49 (citing Paul v. Davis,
424 U.S. 693, 701 (1976)).
Affirmed.
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