M. C. v. Dr. James Amrhein
Filing
UNPUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-01303-DCN. Copies to all parties and the district court. [999516899]. [13-2178, 13-2182, 13-2183]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2178
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
DR. JAMES AMRHEIN,
Defendant – Appellant,
and
DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH; KIM AYDLETTE;
MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY
SEARCY; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,
Defendants.
-----------------------------AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
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No. 13-2182
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi
Davis; MARY SEARCY,
Defendants – Appellants,
and
DR. JAMES AMRHEIN; DR. IAN AARONSON; DR. YAW APPIAGYEIDANKAH; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,
Defendants.
-----------------------------AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
No. 13-2183
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
2
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DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH,
Defendants – Appellants,
and
DR. JAMES AMRHEIN; KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE
DAVIS, a/k/a Candi Davis; MARY SEARCY; DOE 1, Unknown South
Carolina Department of Social Services Employee; DOE 2,
Unknown South Carolina Department of Social Services
Employee; DOE 3, Unknown South Carolina Department of
Social Services Employee,
Defendants.
-----------------------------AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Charleston.
David C. Norton, District
Judge. (2:13-cv-01303-DCN)
Argued:
September 17, 2014
Decided:
January 26, 2015
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Reversed and remanded with instructions by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Motz and Senior
Judge Davis joined.
ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina; James Ben Alexander, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina; Elloree Ann Ganes, HOOD LAW
FIRM, LLC, Charleston, South Carolina, for Appellants.
Kristi
Lee Graunke, SOUTHERN POVERTY LAW CENTER, Atlanta, Georgia, for
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Appellee.
ON BRIEF: Kenneth N. Shaw, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina, for Appellant Dr. James
Amrhein.
Robert H. Hood, Barbara Wynne Showers, Deborah
Harrison Sheffield, HOOD LAW FIRM, LLC, Charleston, South
Carolina, for Appellants Dr. Ian Aaronson and Dr. Yaw AppiagyeiDankah.
William H. Davidson, II, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellants Kim Aydlette, Meredith
Williams, Candice Davis, and Mary Searcy.
Kenneth M. Suggs,
JANET, JENNER AND SUGGS, LLC, Columbia, South Carolina; Alesdair
H. Ittelson, David Dinielli, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama; Anne Tamar-Mattis, ADVOCATES FOR INFORMED
CHOICE, Cotati, California; John Lovi, William Ellerbe, STEPTOE
AND JOHNSON LLP, New York, New York, for Appellee.
Suzanne B.
Goldberg, Sexuality & Gender Law Clinic, COLUMBIA LAW SCHOOL,
New York, New York, for Amicus AIS-DSD Support Group. Priscilla
J. Smith, LAW OFFICE OF PRISCILLA J. SMITH, Brooklyn, New York,
for Amicus The Program for the Study of Reproductive JusticeInformation Society Project at The Yale Law School and
Constitutional Scholars.
Unpublished opinions are not binding precedent in this circuit.
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DIAZ, Circuit Judge:
In April 2006, a doctor performed sex assignment surgery on
sixteen-month-old
South
Carolina
diagnosed
at
M.C.,
who
Department
was
birth
with
of
an
in
the
Social
intersex
legal
custody
Services
condition.
and
of
had
Four
the
been
months
after the surgery, Pamela and Mark Crawford took custody of M.C.
before adopting him in December 2006.
The Crawfords filed this
42 U.S.C. § 1983 action on M.C.’s behalf, against the officials
and doctors who played a part in the decision to have M.C.
undergo the surgery.
The district court denied the officials’
and doctors’ motions to dismiss based on qualified immunity.
Because we find that no then-extant precedent gave fair warning
to those involved in the decision regarding M.C.’s surgery that
they
were
violating
his
clearly
established
constitutional
rights, we reverse.
I.
In our de novo review of a denial of a motion to dismiss
based
on
qualified
immunity,
we
take
“as
true
the
facts
as
alleged in the complaint, and view those facts in the light most
favorable to the nonmoving party.”
Jenkins v. Medford, 119 F.3d
1156, 1159 (4th Cir. 1997) (en banc) (footnote omitted).
draw the following facts from M.C.’s complaint.
5
We
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M.C. was born with ovotesticular difference/disorder of sex
development (DSD).
where
the
Ovotesticular DSD is an intersex condition
individual
has
ovarian
and
testicular
Hospital records first identified M.C. as male, but
tissue.
treating
physicians later sometimes referred to M.C. as female.
Through
tests, examinations, and surgery, doctors determined that M.C.
had
“extremely
elevated”
testosterone
levels
and
that
his
genitalia consisted of a testicle, an ovotestis with ovarian and
testicular tissue, a phallus, scrotalized labia, a short vagina,
and no uterus.
J.A. 21-22.
In February 2005, M.C. was placed in the custody of the
South
Carolina
December
2006,
Department
when
the
of
Social
Crawfords
Services
adopted
(“SCDSS”)
him.
until
Before
the
adoption, SCDSS had was authorized to make medical decisions for
M.C.
After many examinations, tests, two surgeries, and numerous
consultations among SCDSS officials and doctors over the course
of a year, Drs. James Amrhein, Yaw Appiagyei-Dankah, and Ian
Aaronson
According
recommended
to
M.C,
that
the
M.C.
doctors
have
sex
recommended
assignment
the
surgery.
“irreversible,
invasive, and painful” surgery despite “no compelling biological
reason to raise M.C. as either male or female.”
J.A. 12, 23.
The doctors also knew that they could “assign M.C. a gender of
rearing and postpone surgery” and that the surgery carried risks
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of “complete loss of sexual function, scarring, loss of male
fertility,
gender
misassignment,
distress.”
J.A. 24-25.
April
performed
This
a
surgery
2006,
with
feminizing
involved
lifetime
psychological
In short, M.C. alleges that the surgery
was medically unnecessary.
In
and
J.A. 25.
consent
genitoplasty
removing
SCDSS, 1
from
most
on
Dr.
Aaronson
sixteen-month-old
of
M.C.’s
phallus,
M.C.
his
testicle, and the testicular tissue in his ovotestis.
After adopting M.C., the Crawfords originally raised him as
a girl, consistent with the sex assignment surgery.
But as M.C.
grew older, it became clear that he identified as male, and he
is now living as a boy.
M.C., by and through the Crawfords, filed a § 1983 lawsuit
against the three doctors and seven SCDSS officials who played a
part in the decision to perform the sex assignment surgery.
alleged
Fourteenth
process violations.
Amendment
substantive
and
procedural
He
due
The district court denied the defendants’
motions to dismiss on qualified immunity grounds.
The court
concluded that M.C. had pleaded sufficient facts to support his
contention that the defendants “violated his clearly established
constitutional right to procreation.”
1
J.A. 244.
The defendants
We do not consider the defendants’ assertion that M.C.’s
birth mother also consented to the sex assignment surgery
because that was not alleged in the complaint.
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appealed, and we have jurisdiction.
See Winfield v. Bass, 106
F.3d 525, 528 (4th Cir. 1997) (en banc) (“To the extent that an
order of a district court rejecting a governmental official’s
qualified
immunity
defense
turns
on
a
question
of
law,
it
is . . . subject to immediate appeal.”).
II.
A.
To
avoid
dismissal
of
a
complaint
after
a
qualified
immunity defense is raised, a plaintiff must allege sufficient
facts to “make out a violation of a constitutional right” and
the court must find that this right “was clearly established at
the time of” the alleged violation.
Pearson v. Callahan, 555
U.S. 223, 232 (2009) (internal quotation marks omitted).
Courts
are “permitted to exercise their sound discretion in deciding
which
of
the
two
prongs
of
the
qualified
immunity
analysis
should be addressed first in light of the circumstances in the
particular case at hand.”
Id. at 236.
The right at issue must be defined “at a high level of
particularity.”
Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.
2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 251
(4th Cir. 1999)).
“This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
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that in the light of pre-existing law the unlawfulness must be
apparent.”
Anderson
v.
Creighton,
483
U.S.
635,
640
(1987)
(citation omitted).
To be clearly established, “[t]he contours of the right
must
be
sufficiently
clear
that
a
reasonable
official
understand that what he is doing violates that right.”
law
can
be
clearly
established
“even
in
novel
would
Id.
The
factual
circumstances” so long as officials had “fair notice” that their
conduct violated a constitutional right.
Hope v. Pelzer, 536
U.S. 730, 739-41 (2002).
The “salient question” before us is “whether the state of
the law in [2006] gave [the defendants] fair warning that their
alleged treatment of [M.C.] was unconstitutional.”
Id. at 741.
Because we find that the alleged rights at issue in this case
were not clearly established at the time of M.C.’s 2006 sex
assignment surgery, we need not reach the question of whether
M.C. alleged sufficient facts to show that the surgery violated
his constitutional rights.
See, e.g., Pearson, 555 U.S. at 243-
45.
B.
We
first
consider
M.C.’s
contention,
accepted
by
the
district court, that the defendants had fair warning that the
sex
assignment
reproduction.
surgery
violated
his
constitutional
right
to
In support of this proposition, M.C. draws our
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attention
to
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three
cases:
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Planned
Parenthood
of
Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535 (1942); and Avery v. County of
Burke, 660 F.2d 111 (4th Cir. 1981).
Although we acknowledge
the broad statements in these cases about reproductive rights,
we cannot say that a reasonable official would understand them
as
clearly
establishing
an
infant’s
constitutional
right
to
delay sex assignment surgery.
In
Casey,
essential
the
Supreme
holding
of
“the
right
recognizing
abortion
before
Roe
Court
reaffirmed
the
three-part
v.
Wade,
410
U.S.
113
of
the
woman
to
choose
to
viability
and
to
obtain
it
(1973),
have
without
an
undue
interference from the State”; confirming “the State’s power to
restrict abortions after fetal viability, if the law contains
exceptions for pregnancies which endanger the woman’s life or
health”;
and
legitimate
establishing
interests
“the
from
the
principle
outset
of
that
the
the
State
pregnancy
has
in
protecting the health of the woman and the life of the fetus
that may become a child.”
Casey, 505 U.S. at 846.
Skinner involved Oklahoma’s statutory scheme to sterilize
inmates classified as habitual criminals.
316 U.S. at 536-37.
In finding the scheme unconstitutional, the Court focused its
analysis on how the law “la[id] an unequal hand on those who
ha[d] committed intrinsically the same quality of offense and
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sterilize[d] one and not the other.”
Id. at 541.
The Court
gave the example that the sterilization law did not apply to
embezzlers but did apply to those who committed grand larceny.
Id. at 541-42.
In Avery, we considered the case of a fifteen-year-old girl
who was misdiagnosed with sickle cell trait and then counseled
by state actors to be sterilized.
their
advice,
“Avery
and
her
660 F.2d at 113.
mother
Relying on
consented
to
the
sterilization,” but later tests showed that she did not have
sickle cell trait.
sterilized”
Id.
because
Avery claimed “that she was wrongfully
of
the
misdiagnosis
and
“because
sterilization is not medically recommended or proper, even when
there has been a correct diagnosis of [sickle cell] trait.”
Id.
She sued the individuals who recommended sterilization and their
employers, the local county and its Board of Health and Board of
Social Services.
Concluding that “[t]he county and the boards may be liable
under
§ 1983
if
their
policies
or
customs
actually
caused
Avery’s injuries,” we found that summary judgment in favor of
the local government entities was improper because a genuine
issue existed as to whether the county health boards’ failure to
implement policies for counseling and sterilizing people with
sickle
cell
trait
amounted
to
11
a
tacit
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or
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deliberate indifference to Avery’s right of procreation.
Id. at
114-15. 2
Relying on the principles gleaned from these cases, the
district
clearly
think,
court
concluded
established
however,
that
“right
that
this
the
to
defendants
violated
procreation.”
frames
the
right
J.A.
too
M.C.’s
244.
broadly
We
for
purposes of assessing the defendants’ entitlement to qualified
immunity.
the
See, e.g., Winfield, 106 F.3d at 531 (holding that
district
inappropriate
whether
a
court
“degree
much
more
erred
of
in
defining
abstraction”
factually
and
detailed
the
right
instead
right
at
an
considering
was
clearly
established).
In our view, the alleged right at issue is that of an
infant to delay medically unnecessary sex assignment surgery.
By “medically unnecessary,” we mean that no imminent threat to
M.C.’s health or life required state officials to consent to the
surgery, or doctors to perform it.
Viewed in that light, we do
not think that Casey, Skinner, or Avery put reasonable officials
on notice that they were violating M.C.’s constitutional rights.
As we have repeatedly emphasized, “[o]fficials are not liable
for bad guesses in gray areas; they are liable for transgressing
2
Notably, however, Avery made no mention of the merits of
the claim against the individual defendants.
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bright lines.”
Cir. 1992).
Pg: 13 of 16
Maciariello v. Sumner, 973 F.2d 295, 298 (4th
We hold that the defendants did not transgress such
a bright line in this case.
C.
Although
contends
that
not
reached
the
by
the
district
defendants
had
fair
court,
warning
M.C.
that
the
also
sex
assignment surgery violated his constitutional rights to bodily
integrity and privacy.
For the right to bodily integrity, M.C.
points us to Winston v. Lee, 470 U.S. 753 (1985), and Rochin v.
California, 342 U.S. 165 (1952).
For the right to privacy, M.C.
relies on Lawrence v. Texas, 539 U.S. 558 (2003).
We find these
cases too dissimilar to give the defendants fair notice of the
alleged constitutional violation.
Lee
and
Rochin
involved
medical
procedures
to
secure
evidence against individuals suspected of committing a crime.
In Lee, the Court disapproved of a compelled surgical procedure
to extract a bullet that could connect Lee to a robbery.
470
U.S.
and
at
755.
unconstitutional
The
three
Court
in
police
Rochin
officers’
found
shocking
struggle
to
open
Rochin’s mouth to extract the capsules he had swallowed and,
when that method proved unsuccessful, forced stomach pumping to
retrieve the capsules.
342 U.S. at 166, 172.
Neither of these
cases, however, gave the defendants fair notice that they were
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violating M.C.’s right to bodily integrity by performing sex
assignment surgery that M.C. contends was medically unnecessary.
As for Lawrence, that case struck down “a Texas statute
making it a crime for two persons of the same sex to engage in
certain intimate sexual conduct.”
think
that
a
case
barring
a
539 U.S. at 562.
criminal
We do not
prosecution
based
on
intimate, private sexual conduct between consenting adults gave
the
defendants
fair
notice
that
they
could
not
perform
sex
assignment surgery on M.C. because it might impact his future
sexual autonomy.
D.
M.C. also alleges that the defendants violated his clearly
established procedural due process rights by not seeking a “predeprivation hearing” “in which a neutral fact finder could weigh
the
risks
surgery,
and
as
alternatives
alleging,
purported
well
to
he
as
sterilization.
the
surgery.”
equates
benefits
the
of
early
possibility
Appellee’s
sex
of
Br.
assignment
[sex
at
assignment]
postponement
46-47.
surgery
to
In
or
so
forced
To support his argument, M.C. relies on Buck v.
Bell, 274 U.S. 200 (1927); a concurring opinion in Skinner, 316
U.S. at 543; and numerous state statutes and cases requiring a
court hearing “before an individual incapable of consent can be
sterilized.”
Appellee’s Br. at 48.
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We find, however, that reasonable officials in 2006 did not
have
fair
warning
that
they
were
violating
M.C.’s
clearly
established rights by not seeking a hearing before performing,
or consenting to, the sex assignment surgery.
M.C.’s citations
to state statutes and cases are unpersuasive because many postdate
2006,
when
the
surgery
took
place,
and
all
come
from
outside South Carolina, where the surgery took place.
Moreover,
institutions
and
“of
sterilization
Buck
mental
and
Skinner
involved
defectives”
“habitual
intentional,
committed
criminal[s],”
respectively.
274 U.S. at 205; Skinner, 316 U.S. at 536.
the
complaint
in
this
case
alleges
that
to
certain
state
Buck,
In stark contrast,
the
sex
assignment
surgery was performed on an infant with “ambiguous genitals” and
that
such
capacity.”
brief
surgery
“may
reduce
or
eliminate
J.A. 11, 19 (emphasis added).
describes
the
surgery
as
reproductive
And although M.C.’s
“fertility-destroying”
and
a
“surgical[] castrat[ion],” Appellee’s Br. at 45, the complaint
more
cautiously
sterilization,
“risks.”
describes
with
“loss
the
of
surgery
male
as
a
fertility”
as
“potential”
one
of
the
J.A. 24-25, 31-32.
While it is true that “the very action in question” need
not have “previously been held unlawful” for an official to be
stripped
of
qualified
immunity,
the
unlawfulness
must
nonetheless “be apparent” “in the light of pre-existing law.”
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Anderson, 483 U.S. at 640.
Pg: 16 of 16
We conclude that the authority on
which M.C. relies did not make it apparent that the defendants
acted unlawfully by not seeking a hearing before the surgery.
III.
Our core inquiry is whether a reasonable official in 2006
would
have
performing
violated
fair
sex
a
warning
assignment
clearly
from
then-existing
surgery
established
on
precedent
that
sixteen-month-old
M.C.
constitutional
right.
In
concluding that these officials did not have fair warning, we do
not mean to diminish the severe harm that M.C. claims to have
suffered.
While M.C. may well have a remedy under state law, 3 we
hold
qualified
that
immunity
bars
his
federal
constitutional
claims because the defendants did not violate M.C.’s clearly
established rights.
We therefore reverse the district court’s denial of the
defendants’ motions to dismiss and remand with instructions to
dismiss the complaint.
REVERSED AND REMANDED WITH INSTRUCTIONS
3
We have been advised that M.C. filed separate suits in
state court asserting state law claims against the defendants.
16
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