Martinez v. Cui, et al

Filing 920100617

Opinion

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var WPFootnote1 = '                   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.\
'

var WPFootnote2 = '                   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.\
'

var WPFootnote3 = '                   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.\
'

var WPFootnote4 = '                   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.\
'

var WPFootnote5 = '                   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.\
'

var WPFootnote6 = '                   Martínez also argues that defense counsel\'s closing\
argument was prejudicial. Because she does not point to specific\
improper statements, this argument is waived.\
'

var WPFootnote7 = '                   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.\
'

var WPFootnote8 = '                   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).\
'

var WPFootnote9 = '                   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.\
'

var WPFootnote10 = '                   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).\
'

var WPFootnote11 = '                   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.\
'

var WPFootnote12 = '                   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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