Sanchez v. Pereira-Castillo

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

-2-
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.

-3-
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.

-4-
 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

-5-
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.

-6-
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.

-7-
. . [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,

-8-
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.

-9-
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.

-10-
 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

-11-
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.

-12-
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

-13-
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.

-14-
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

-15-
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").

-16-
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

-18-
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

-19-
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.

-20-
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

-41-
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

-42-
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

-43-
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.

-44-
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

-45-
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

-46-
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.

-47-