Sanchez v. Pereira-Castillo, et al

Filing 920091223

Opinion

var gAgent = navigator.userAgent.toLowerCase()
var gWindows = ( (gAgent.indexOf( "win" ) != -1 ) || ( gAgent.indexOf( "16bit" ) != -1 ) )
var gIE = ( gAgent.indexOf( "msie" ) != -1 )
var bInlineFloats = ( gWindows && gIE && ( parseInt( navigator.appVersion ) >= 4 ) )
var floatwnd = 0

var WPFootnote1 = 'Of the Second Circuit, sitting by designation.\
'

var WPFootnote2 = ' 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.\
'

var WPFootnote3 = ' 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.\
'

var WPFootnote4 = ' 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.\
'

var WPFootnote5 = '  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. \
'

var WPFootnote6 = ' 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\
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").\
'

var WPFootnote7 = '    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. \
'

var WPFootnote8 = ' 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).\
'

var WPFootnote9 = '  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."). \
'

var WPFootnote10 = '                                                 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\
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. \
'

var WPFootnote11 = ' 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.\
'

var WPFootnote12 = ' 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." \
'

var WPFootnote13 = ' It is undisputed that all correctional defendants were state\
actors.\
'

var WPFootnote14 = ' 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\
dismiss.\
'

var WPFootnote15 = '    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.\
'

var WPFootnote16 = '  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."). \
'

var WPFootnote17 = '  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.")).\
'

var WPFootnote18 = ' 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. \
'

function WPShow( WPid, WPtext )
{
if( bInlineFloats )
eval( "document.all." + WPid + ".style.visibility = 'visible'" );
else
{
if( floatwnd == 0 || floatwnd.closed )
floatwnd = window.open( "", "comment", "toolbars=0,width=600,height=200,resizable=1,scrollbars=1,dependent=1" );
floatwnd.document.open( "text/html", "replace" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( " p { margin-top:0px; margin-bottom:1px; } \r\n" );
floatwnd.document.write( "\r\n" );
floatwnd.document.write( WPtext );
floatwnd.document.write( 'Close');
floatwnd.document.write( "