Clifford George v. Thomas Edholm , 752 F.3d 1206 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLIFFORD GEORGE, No. 11-57075
Plaintiff-Appellant,
D.C. No.
v. 2:06-cv-00200-
GW-AJW
THOMAS W. EDHOLM, individually
in his capacity as an M.D.; GREG
FREEMAN, individually in his OPINION
capacity as a PD Officer; Daryll
Johnson, individually in his capacity
as a PD Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted
June 4, 2013—Pasadena, California
Filed May 28, 2014
Before: Kim McLane Wardlaw and William A. Fletcher,
Circuit Judges, and Barbara M. G. Lynn, District Judge.*
Opinion by Judge W. Fletcher
*
The Honorable Barbara M. G. Lynn, District Judge for the U.S. District
Court for the Northern District of Texas, sitting by designation.
2 GEORGE V. EDHOLM
SUMMARY**
Prisoner Civil Rights
The panel affirmed in part and reversed in part the district
court’s summary judgment and remanded an action brought
pursuant to 42 U.S.C. § 1983 alleging that police officers, a
doctor, and two nurses violated plaintiff’s rights under the
Fourth and Fourteenth Amendments when the doctor, forcibly
and without consent, removed a plastic baggie containing
cocaine base from plaintiff’s rectum.
Reversing the district court’s summary judgment in favor
of the police officers on the Fourth Amendment claim, the
panel first held that the doctor’s conduct could be attributed
to the police officers because a reasonable jury could
conclude that the officers gave false information about
plaintiff’s medical condition to the hospital staff and to the
doctor with the intent of inducing the doctor to perform an
invasive search. The panel then held that based on the factors
set forth in Winston v. Lee, 470 U.S. 753, 759–60 (1985), a
jury could conclude the procedures performed by the doctor
violated the Fourth Amendment. The panel further held that
the police officers were not entitled to qualified immunity on
the Fourth Amendment claim.
The panel affirmed the district court’s summary judgment
in favor of defendants on plaintiff’s separate Fourteenth
Amendment claim which was based on his right to refuse
unwanted medical treatment. The panel determined that it
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GEORGE V. EDHOLM 3
could not say that “every reasonable official” would have
known the procedures performed by the doctor violated the
Fourteenth Amendment and therefore defendants were
entitled to qualified immunity. Finally, the panel declined to
address issues related to the liability of the doctor who
performed the procedure, stating that the district court could
do so on remand.
COUNSEL
Michael B. Kimberly (argued) and Charles Alan Rothfeld,
Mayer Brown LLP, Washington, D.C., for Plaintiff-
Appellant.
Thomas W. Edholm, pro se, Redding, California.
Roger A. Colvin and Sharon Apodaca (argued), Alvarez-
Glasman & Colvin, City of Industry, California, for
Defendants-Appellees.
4 GEORGE V. EDHOLM
OPINION
W. FLETCHER, Circuit Judge:
Clifford George appeals a grant of summary judgment to
Pomona Police Officers Greg Freeman and Daryll Johnson.
Acting pro se, George sued Freeman, Johnson, and a medical
doctor and two nurses under 42 U.S.C. § 1983, alleging that
they violated his rights under the Fourth and Fourteenth
Amendments when the doctor, forcibly and without consent,
removed a plastic baggie containing cocaine base from
George’s rectum. We reverse in part, affirm in part, and
remand for further proceedings.
I. Background
A. Factual Summary
According to a police report written by Officer Freeman,
on March 13, 2004, George and another man were standing
in the front courtyard of an apartment complex in Pomona,
California. Freeman and his partner were patrolling the area,
which they knew to be a hangout for gang members and drug
dealers. They spotted the two men, got out of their police
cruiser, and approached them. George started to run “towards
the front gate, as if he was going to flee.” Freeman ordered
George to stop, and George complied. George told Freeman
he was on parole for an armed robbery conviction.
Officer Freeman and two other officers conducted a
parole search of George’s apartment. Inside, they
encountered George’s brother, Jeremiah English. Freeman
found a .380-caliber semi-automatic pistol in a hallway
closet. Freeman arrested George for violating his parole by
GEORGE V. EDHOLM 5
living in an apartment with a firearm, English for being a
gang member with a firearm, and George’s companion for
loitering. Freeman and his partner took all three men to the
Pomona city jail.
Freeman and Johnson took George to the “strip tank” for
a strip search. Freeman wrote in his report that George
removed his clothes, but “whe[n] we asked him to turn
around, he immediately started shaking and went to the
ground as if he was possibly having a seizure. . . . [W]hen he
was on the ground with his right hand he reached under his
body and started pushing his finger in his anus attempting to
conceal an item, of what appeared to be some plastic baggie.
Due to my training and experience in the field of narcotics,
myself and Corporal Johnson believed it was a bag of
cocaine.”
Officer Freeman testified in his deposition that he did not
believe that George was having a seizure, “[b]ecause he was
concealing the narcotics or cocaine that we recovered out of
his rear end.” Freeman estimated that he had encountered
“similar scenarios . . . where someone undergoing a strip
search either faked a seizure or attempted to conceal things in
their rectum during the strip search . . . five times — four to
five times.” Officer Johnson testified similarly in his
deposition. He testified that in his experience it is “very
common for people to carry [crack cocaine or other
contraband] between their butt cheeks.” He did not believe
George was having a seizure. Rather, he believed that
George “was faking having a seizure to cover . . . up” his
attempt to conceal a plastic baggie of cocaine base in his anal
cavity. He testified, “[I]t was obvious to me that that whole
fake medical situation was a distraction so he could shove a
baggie in his anus.”
6 GEORGE V. EDHOLM
An unspecified person at the jail called for paramedics.
George testified in his deposition that “Freeman kept
hollering [to the paramedics], yelling that I swallowed
something and he stuck something up his anal and we need to
get it out.” Officer Freeman testified, “I think I told [the
paramedics] that he — that he possibly had a seizure and that
we needed to get him medically cleared for booking.” He
testified further that the paramedics took George to the
hospital “to save his life.” Officer Johnson testified
differently. When asked if “there was anything medically
wrong” with George when he took him to the hospital,
Johnson answered, “I did not think so.” He testified that he
and another officer took George to the hospital in a police
vehicle. Hospital records state that police officers took
George to the hospital, and that George was in police custody
when he arrived. Johnson testified that Freeman came to the
hospital sometime later. However, George testified that
“Freeman and Johnson took me to the hospital.”
Freeman was asked about other instances in which a
person was taken to the hospital because of cocaine base
concealed in the rectum. He responded:
Specifically, I remember a doctor had one on
a Porta-Potty. Another one, I believe the
doctor had to give him a sedative or
something to relax the body. . . . I think the
doctor used forceps to pull it out of his
rectum.
In the instance where forceps were used, Freeman did not say
whether the person had consented to the procedure. Freeman
did not describe any case in which the person had been
intubated or had his bowels evacuated.
GEORGE V. EDHOLM 7
Johnson testified that on “six or eight” previous occasions
he transported to the hospital people who had inserted into
their rectums baggies containing cocaine. He testified:
I know, in some instances, they were given
some type of a pill or a drink, maybe a
laxative of some type. On another occasion,
there was a laxative like a suppository.
Another time I waited in the intensive care
unit with somebody that had cocaine in their
rectum, and it was all up to the doctor.
Johnson testified that in all but one of the instances, the
baggie was intact when it emerged. Johnson described the
one instance in which the baggie had not been intact. In that
instance, the person had been taken to intensive care because
of a high heart rate. At one point, Johnson and another
officer had actually seen, “barely protruding,” the “clear
plastic and the actual white cocaine,” but by the time they got
to the hospital it was no longer visible:
The doctor used a type of scope. I believe the
person’s heart rate was very high and the
doctor couldn’t find it, and we told him that
we had actually seen it, the both of us. And
so I believe the doctor was — had him taken
up to ICU because of his heart rate, and he
was monitored. He was given suppository or,
you know, some type of laxative, and
eventually the laxative worked and the baggie
of cocaine was recovered.
The recovered baggie was not intact when Johnson saw it, but
he testified, “I don’t know if it came out not intact or if it was
8 GEORGE V. EDHOLM
ripped by the suspect.” When asked if any of the six or eight
people had the cocaine “removed surgically,” Johnson
answered, “No, I have never seen that.” But he had seen
“some type of device,” which he described as “not really
forceps,” used to pull out a baggie or baggies.
Acting pro se, George sent Requests for Admission to
Officers Freeman and Johnson. They provided identical
answers to a Request concerning the paramedics’ evaluation.
They both wrote, “The Los Angeles County Fire Department
Paramedics informed me that plaintiff was not having a
seizure.” In his deposition, Freeman backtracked from this
answer. In response to the question, “Did the paramedics
convey to you any information about Mr. George’s medical
condition?” Freeman testified, “I don’t remember anything
specifically.”
Officers Freeman and Johnson both answered “Admit” to
the following Request: “Admit that, when you arrived at said
medical hospital, you informed Dr. Edholm, (the treating
[doctor],) that plaintiff appear[ed] to have swollen some
drugs and/or that there may be some in his rectum.” In their
depositions, they both backtracked. During Freeman’s
deposition, the following exchange occurred:
Q: You didn’t say — you didn’t tell anyone
anything about him swallowing drugs through
his mouth?
...
A: I don’t remember telling anybody about
anything. . . .
GEORGE V. EDHOLM 9
...
Q: As you sit here today, do you recall telling
Dr. Edholm that the patient may have — or
that Mr. George may have swallowed some
drugs or “swollen,” any sort of variation of
that word?
A: No.
Johnson testified, “I don’t recall ever saying something like
‘swollen’ or ‘swallowed drugs.’ I don’t recall that in this
incident.”
Hospital records indicate that the “police department” told
intake personnel that George had swallowed cocaine, had put
cocaine into his rectum, and had possibly had a seizure. The
hospital’s Emergency Department Triage Record, filled out
when George arrived at the hospital, stated, “Per P.D: pt.
ingested cocaine & put some into his rectum. Possibly had a
seizure.”
Officer Johnson testified that George was taken to a room
at the hospital, placed on a gurney, and restrained with straps.
He testified that nurses initially evaluated George, and that
Dr. Thomas Edholm, an emergency-room physician, arrived
a short time later. George wrote in his verified complaint:
The defendant Edholm was then informed by
the defendant’s [sic] Johnson & Freeman, that
there exist a medical emergency . . . that
plaintiff may have swallowed drugs. “We
need it out now.”
10 GEORGE V. EDHOLM
An intake form lists George’s blood pressure as 180/108,
his pulse as 108, his respiratory rate as 18, his temperature as
98, and his condition as “stable.” The hospital’s triage
record, prepared at roughly the same time, lists his breathing
as normal and describes him as “[a]lert and oriented x 4” (the
highest level). The hospital discharge report, signed by Dr.
Edholm at George’s release, shows George as having had
blood pressure of 180/115, a pulse of 120, respiratory rate of
18, and a temperature of 98. In his deposition, Edholm
described these numbers as “severely high” and “consistent
with cocaine toxicity.”
George testified that Dr. Edholm initially tried to remove
the plastic baggie by inserting his fingers in George’s rectum.
George recounted:
The doctor came in and say, hey, what’s
the problem.
Freeman kept stipulating we think that he
took something and we think he shoved
something up his a-s-s and the doctor put —
they put me on the table. . . . I was laying
there naked and the doctor said lift him up . . .
so the officers came and they held me down
and then the next thing you know I see the
doctor he put on . . . this glove and put some
type of gel or whatever . . . and . . . he stuck
his fingers his hands up my butt.
...
He went up in me and it hurt. . . . I yelled
I said why are you doing this? You can’t do
GEORGE V. EDHOLM 11
this. You’re battering me. You can’t do this
I kept telling him and Freeman kept opening
his mouth, too, telling the doctor like, you
know, Goddamn it, I know that he’s got it, so
hold him down so they held me down and
then the next thing you know this doctor said,
hey, this is not going to work.
...
[The officers] were holding my legs down.
...
The police officers . . . flipped me over.
They said roll him over, because that nurse
she was too busy holding that IV in my
arm . . ., and I kept telling them what are you
doing this for, and as soon as he stuck his
thing up my ass and I was screaming I was
hollering because it hurted. . . . I mean he had
his hands right up my rectum and never had
that before, ma’am, you understand, and that
violated me and I was, you know, I just never
had anybody go up in me like that, ma’am.
George was asked at the deposition if he remembered
either of the officers telling Dr. Edholm what to do. He
responded, “All I know is I hear Freeman tell him that you
need to get this out of his ass. He’s got something up his ass,
Goddamn it, I know he does.” He reiterated later that
Freeman said, “I know he’s got something up his ass. You
need to get that out. I know he does.” Freeman denied
having said that:
12 GEORGE V. EDHOLM
Q: At any point, did you tell Dr. Edholm that
you needed the cocaine out now?
A: No. He would have laughed at me.
Freeman testified that he did not remember holding George
down: “If I would have, I would have remembered.” Johnson
testified that he did not recall holding George down or turning
him onto his side.
George testified that Dr. Edholm told him that he would
be sedated: “[H]e explained to me . . . we’re going to paralyze
you.” George testified:
I was . . . looking at this doctor what he’s
going to do, because I didn’t know what he
was going to do and kept getting all these big
clamps, I seen these big clamps and I kept
asking, you know, I remember one of the
officers asking . . . . He says, well, we’re
going to open up his rectum with this. That’s
when I just got hysterical.
George testified that, when he regained awareness, he
woke up on my back with a big tube down my
mouth and stuff kept coming out of me out of
my anal. They had a big plastic bag I
remember on the bed and whatever that was
inside of me was flushing stuff through my
stomach coming out of my anal and I
remember a lot of stuff, water coming out of
my buttock, my anal.
GEORGE V. EDHOLM 13
...
And then I’m still there whatever they’re
doing flushing me out I’m just laying there
and just I was so mad . . . because what they
had done to me and all I just seen was just
blood on that bed and everything and my anal
hurting so bad because I was bleeding a lot.
He testified that he was still bleeding when he was discharged
from the hospital, wearing his jail jumpsuit: “I was hurting
bad, ma’am. And even through that jumpsuit I was still
bleeding I was bleeding so bad.”
Dr. Edholm testified in his deposition that he had no
specific recollection of treating George. He testified solely
based on notes he had dictated after treating George, which
were contained in George’s discharge report. Edholm
recounted that he was able to feel “a plastic type of material”
in George’s rectum, but George’s resistance prevented him
from removing it by hand. Edholm then engaged in what he
called “aggressive management.”
Dr. Edholm testified that a nurse sedated George.
Edholm then inserted a metal anoscope into George’s rectum.
He stated that through the anoscope, he and one of the police
officers viewed a golf ball-sized baggie filled with white
material. Edholm removed the baggie with long forceps and
gave it to the officer. The plastic baggie was intact.
Dr. Edholm then intubated George and inserted a tube
through his nose into his stomach. Through the tube, George
was given one gallon of a liquid laxative called GoLYTELY,
14 GEORGE V. EDHOLM
which, according to Edholm, “flushes and washes everything
out of your intestines completely.”
Dr. Edholm testified that his treatment of George “was
based on the information from the police and the nurses and
his physical evidence of cocaine toxicity.” This information
led him to conclude that George’s life was in danger. He
explained, “If a patient has evidence of a life-threatening
condition, we have to . . . aggressively treat it.” Edholm
stated the basis for his conclusion was “[t]he elevated blood
pressure, pulse, history of having a seizure. If you have a
seizure from cocaine, it’s usually associated with severe
toxicity.” Edholm believed that George had ingested cocaine
based on the medical history taken by a nurse and recorded
on the triage record. In his deposition, he read aloud the
nurse’s note on the record, saying, “[p]er PD, patient ingested
cocaine.”
It is undisputed that George did not consent to any of the
medical procedures. Dr. Edholm acknowledged in his
deposition that the procedures required patient consent and
said he acted “without [George’s] compliance.” Edholm
testified that, as an emergency doctor, he does not routinely
seek patient consent: “It’s an emergency, so I don’t routinely
ask patients for consent.” In his view, the “admissions staff
[was] responsible for obtaining patient consent.”
Later testing showed that the intact plastic baggie
removed from George’s rectum contained about 8.99 grams
of cocaine base. George was charged with possession of
cocaine base for sale in violation of California Health &
Safety Code § 11351.5. He pled no contest to the offense.
He is currently serving an eight-year prison term. Defendants
GEORGE V. EDHOLM 15
in this case have made no argument based on Heck v.
Humphrey, 512 U.S. 477 (1994).
B. Procedural History
George brought suit under 42 U.S.C. § 1983 against
Officers Freeman and Johnson, Dr. Edholm, and two nurses.
He alleged violations of the Fourth and Fourteenth
Amendments based on his initial detention, the search of his
apartment, and his treatment at the hospital. See George v.
Edholm, 410 F. App’x 32, 33–34 (9th Cir. 2010). Neither
Edholm nor the nurses answered the complaint.
The district court granted summary judgment in favor of
Officers Freeman and Johnson. It dismissed with prejudice
George’s claims against Dr. Edholm and the nurses because
they had not been served. Id. On appeal, we affirmed
summary judgment as to George’s claim arising out of his
initial detention. Id. at 34. We also affirmed summary
judgment in favor of the nurses. Id. We reversed and
remanded as to the remainder of George’s claims. Id. at
33–34. We held that George should have been allowed to
withdraw his deemed admissions during discovery, held that
his sworn complaint should serve as an affidavit, and
instructed the district court to allow George to perfect service
on Dr. Edholm. Id. at 33–34 & n.1.
On remand, George, now represented by pro bono
counsel, served the complaint on Dr. Edholm. Edholm still
has not answered. After limited discovery, Officers Freeman
and Johnson again moved for summary judgment. The
district court granted the motion. The court believed that its
ruling, if correct, would resolve George’s claims against
Edholm. To take care of the “technicality” of Edholm’s
16 GEORGE V. EDHOLM
failure to appear, the court suggested that George voluntarily
dismiss Edholm without prejudice. Before George filed a
voluntary dismissal, the court entered a final judgment
dismissing George’s complaint in its entirety. The following
day, George filed a voluntary dismissal as to Edholm.
George timely appealed. He appeals only the grant of
summary judgment on his claims arising out of his treatment
at the hospital.
II. Standard of Review
We review de novo the district court’s grant of summary
judgment. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.
1996). We must determine, “viewing the evidence in the
light most favorable to the nonmoving party, whether genuine
issues of material fact exist.” Id. We will affirm only if no
“reasonable jury viewing the summary judgment record could
find by a preponderance of the evidence that the plaintiff is
entitled to a favorable verdict.” Narayan v. EGL, Inc.,
616 F.3d 895, 899 (9th Cir. 2010). “If a rational trier of fact
could resolve a genuine issue of material fact in the
nonmoving party’s favor,” summary judgment is
inappropriate. Bravo v. City of Santa Maria, 665 F.3d 1076,
1083 (9th Cir. 2011). “[C]redibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from facts are jury functions, not those of a judge.”
Id. (quoting Nelson v. City of Davis, 571 F.3d 924, 927 (9th
Cir. 2009)).
We also review de novo the district court’s ruling on
qualified immunity. Furnace v. Sullivan, 705 F.3d 1021,
1026 (9th Cir. 2013). At the summary judgment stage, we
ask whether the facts, “[t]aken in the light most favorable to
GEORGE V. EDHOLM 17
the party asserting the injury,” show that the officers violated
a constitutional right. Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part on other grounds by Pearson v.
Callahan, 555 U.S. 223 (2009). If the officers violated a
constitutional right, we determine de novo “whether federal
rights asserted by a plaintiff were clearly established at the
time of the alleged violation.” Martinez v. Stanford, 323 F.3d
1178, 1183 (9th Cir. 2003).
III. Discussion
George claims that the conduct of Officers Freeman and
Johnson, and the treatment administered by Dr. Edholm at the
hospital, violated his Fourth Amendment right to be free from
unreasonable searches, as well as his Fourteenth Amendment
right to refuse medical treatment. The district court granted
summary judgment to Freeman and Johnson on the ground
that Edholm acted as a private citizen whose conduct could
not be imputed to Freeman and Johnson. The district court
further held that even if Freeman and Johnson violated
George’s constitutional rights, they were entitled to qualified
immunity.
A. State Action
The district court held as a matter of law that Dr.
Edholm’s conduct could not be attributed to the state. We
disagree.
George does not dispute that Dr. Edholm is a private
citizen whose conduct ordinarily would not be attributable to
the state. See Brunette v. Humane Soc’y of Ventura Cnty.,
294 F.3d 1205, 1209 (9th Cir. 2002). Private action may be
attributed to the state, however, if “there is such a ‘close
18 GEORGE V. EDHOLM
nexus between the State and the challenged action’ that
seemingly private behavior ‘may be fairly treated as that of
the State itself.’” Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson v.
Metro. Edison Co., 419 U.S. 345, 351 (1974)). Such a nexus
may exist when, for instance, private action “results from the
State’s exercise of ‘coercive power,’” or “when the State
provides ‘significant encouragement, either overt or covert,’”
to the private actor. Id. at 296 (quoting Blum v. Yaretsky,
457 U.S. 991, 1004 (1982)).
Police officers may not avoid the requirements of the
Fourth Amendment by inducing, coercing, promoting, or
encouraging private parties to perform searches they would
not otherwise perform. See United States v. Reed, 15 F.3d
928, 932–33 (9th Cir. 1994); see also Mendocino Envtl. Ctr.
v. Mendocino Cnty., 192 F.3d 1283, 1301 (9th Cir. 1999)
(allowing a finding of state action where a jury could find that
actions were “unlikely to have been undertaken” without state
encouragement (internal quotation marks omitted)). The
Supreme Court has stated, “[I]t is . . . axiomatic that a state
may not induce, encourage or promote private persons to
accomplish what it is constitutionally forbidden to
accomplish.” Norwood v. Harrison, 413 U.S. 455, 465
(1973) (internal quotation marks omitted). A private party’s
search may be attributed to the state when “the private party
acted as an instrument or agent of the Government” in
conducting the search. Skinner v. Ry. Labor Execs.’ Ass’n,
489 U.S. 602, 614 (1989); Reed, 15 F.3d at 931; United States
v. Walther, 652 F.2d 788, 791 (9th Cir. 1981). Police officers
may be liable for a private party’s search when the police
“ordered or were complicit in the search[].” United States v.
Sparks, 265 F.3d 825, 831 (9th Cir. 2001), overruled on other
grounds by United States v. Grisel, 488 F.3d 844 (9th Cir.
GEORGE V. EDHOLM 19
2007) (en banc); see also United States v. Ziegler, 474 F.3d
1184, 1188, 1190 (9th Cir. 2007) (finding state action where
an FBI agent told a private employer to make a copy of its
employee’s computer files); Dyas v. Superior Court, 522 P.2d
674, 677 n.2 (Cal. 1974).
A reasonable jury could conclude that Officers Freeman
and Johnson gave false information about George’s medical
condition to the hospital staff and to Dr. Edholm, with the
intent of inducing Edholm to perform an invasive search.
There is evidence in the record showing that Freeman and
Johnson knew that George did not have a seizure. They both
admitted in response to written requests from George that the
paramedics told them that George had not had a seizure, and
they both testified in their depositions that they believed
George was faking a seizure. There is evidence in the record
showing that neither Freeman nor Johnson believed that
George had swallowed any cocaine. They both denied telling
anyone that he had done so. But the hospital triage record
indicates that hospital staff had been told by police (“per
P.D.”) that, in addition to inserting cocaine into his rectum,
George had also ingested cocaine and had possibly had a
seizure. George specifically stated that he heard Freeman tell
Edholm that George had swallowed cocaine. There is
evidence in the record that the information that George had
ingested cocaine and had possibly had a seizure led Edholm
to perform a more invasive search than he otherwise would
have. Edholm testified that his decision to treat George
aggressively was based in part on that information. Finally,
there is evidence in the record that Freeman and Johnson
physically assisted Edholm by turning George on the table
and holding his legs, and that Freeman emphasized to Edholm
the necessity for prompt action in removing the cocaine from
George’s rectum.
20 GEORGE V. EDHOLM
There is, of course, contrary evidence. Freeman
backtracked from his response to George’s Request for
Admission, claiming in his deposition that he did not recall
the paramedics saying that George did not have a seizure.
Freeman and Johnson both backtracked from their admissions
that “plaintiff appear[ed] to have swollen [sic] some drugs.”
Freeman stated in his deposition, “I don’t remember telling
anybody about anything.” Johnson stated, “I don’t recall ever
saying something like ‘swollen’ or ‘swallowed drugs.’”
These statements, if believed, would tend to show that neither
Freeman nor Johnson was the source of the false information
in the hospital’s triage record. Further, Freeman denied
telling Edholm to take the cocaine out of George’s rectum,
and Freeman and Johnson both stated that they could not
remember turning and holding George down in the hospital.
However, a reasonable jury would not be required to
believe any of the contrary evidence just described. Instead,
it could believe the evidence favorable to George. Based on
this evidence, a reasonable jury could find that Freeman and
Johnson provided “significant encouragement, either overt or
covert,” to Dr. Edholm, Brentwood Acad., 531 U.S. at 295,
and that they “induce[d], encourage[d] or promote[d]”
Edholm to do what he would not otherwise have done,
Norwood, 413 U.S. at 465; see Reed, 15 F.3d at 932–33, such
that Edholm’s actions are attributable to the state.
To hold Dr. Edholm personally liable as a state actor,
George must establish not only that Edholm was induced to
act as he did, but also that Edholm intended to assist Freeman
and Johnson in obtaining evidence for their investigation. See
United States v. Attson, 900 F.2d 1427, 1433 (9th Cir. 1990)
(holding that “a party is subject to the [F]ourth [A]mendment
only when he or she has formed the necessary intent to assist
GEORGE V. EDHOLM 21
in the government’s investigative or administrative
functions”). We hold only that Edholm’s actions could be
attributed to the state, based on our holding that a reasonable
jury could conclude that Freeman and Johnson provided false
information, encouragement, and active physical assistance
to Edholm. We do not reach the different question whether
a jury could conclude that Edholm is himself liable under
§ 1983. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d
185, 196 n.13 (3d Cir. 2005) (noting that even if a private
actor cannot be liable “simply because she is compelled to
take an action by a state actor,” it is “entirely proper to find
that the state actor engaged in state action, including whatever
actions the private party was compelled to undertake”); see
also United States v. Booker, 728 F.3d 535, 540 (6th Cir.
2013) (“When police officers bring a suspect in custody to a
purportedly independent actor, and stand by without
interfering while the actor unlawfully batters the subject in a
way that the police clearly could not, it can hardly be argued
that resulting evidence is admissible.”).
B. Fourth Amendment Claim
1. Reasonableness of the Search
Because we hold that Officers Freeman and Johnson
could be held responsible for the procedures performed by
Dr. Edholm, we now turn to the question whether, taking the
facts in the light most favorable to George, this search was
unconstitutional. See Saucier, 533 U.S. at 201.
The Fourth Amendment requires that a nonconsensual
physical search of a suspect’s body, like any other
nonconsensual search, be reasonable. See Winston v. Lee,
470 U.S. 753, 759–60 (1985). A body search, however,
22 GEORGE V. EDHOLM
requires “a more substantial justification” than other searches.
Id. at 767. In Winston, the Supreme Court rejected the state’s
request for a court order requiring a suspect to undergo
surgery to remove a bullet from the suspect’s chest. Id. at
755. In holding that the forced surgery would be
unconstitutional, the Court identified three primary factors
courts should weigh in deciding the reasonableness of a body
search. Those factors are (1) “the extent to which the
procedure may threaten the safety or health of the individual,”
(2) “the extent of intrusion upon the individual’s dignitary
interests in personal privacy and bodily integrity,” and
(3) “the community’s interest in fairly and accurately
determining guilt or innocence.” Id. at 761–62. The failure
to obtain a warrant, while not necessarily fatal to a claim of
reasonableness, is also relevant. See id. at 761; United States
v. Cameron, 538 F.2d 254, 259 (9th Cir. 1976).
The foundational case is Rochin v. California, 342 U.S.
165 (1952), in which police officers entered Rochin’s house
and saw him swallow two capsules of morphine. Id. at 166.
The officers took Rochin to a hospital, where “[a]t the
direction of one of the officers a doctor forced an emetic
solution through a tube into Rochin’s stomach against his
will.” Id. Rochin vomited up the morphine capsules, which
the prosecution then introduced as evidence at trial. Id. The
Court reversed, holding that the forcible stomach-pumping
“shock[ed] the conscience” and was “too close to the rack and
the screw” to survive constitutional scrutiny. Id. at 172.
Though Rochin was decided under the Due Process Clause of
the Fourteenth Amendment, the Court has made clear it
would now “be treated under the Fourth Amendment, albeit
with the same result.” Cnty. of Sacramento v. Lewis,
523 U.S. 833, 849 n.9 (1998).
GEORGE V. EDHOLM 23
Analyzing the Winston factors in light of Rochin, we hold
that there is evidence in the record, viewed in the light most
favorable to George, that would support a finding that
Officers Freeman and Johnson violated George’s Fourth
Amendment rights. We address the Winston factors in turn.
First, the danger to George’s health and safety from the
procedures performed in the hospital appears to have been
slight, though not nonexistent. Neither George nor the
officers have provided evidence of the general risks (or lack
thereof) of sedation, anoscopy, intubation, and bowel
evacuation. George testified, however, that the anoscopy
caused him significant pain and anal bleeding that continued
after he left the hospital.
Second, the “intrusion upon [George’s] dignitary interests
in personal privacy and bodily integrity” was extreme.
Winston, 470 U.S. at 761. Edholm sedated George. He
opened George’s anus with an anoscope and inserted long
forceps into George’s rectum. He inserted a tube into
George’s nose, ran the tube into George’s stomach, and
pumped a gallon of liquid laxative through George’s digestive
system, triggering a complete evacuation of George’s bowels.
When George regained consciousness, the bowel evacuation
was still in process. George did not consent to any of these
procedures. The officers neither had a warrant authorizing
these procedures nor attempted to get one.
These procedures were “highly intrusive and
humiliating.” Tribble v. Gardner, 860 F.2d 321, 324 (9th Cir.
1988). The search invaded George’s anus and nostrils, as
well as his throat, stomach, and intestines. The anoscopy
“targeted an area of the body that is highly personal and
private.” United States v. Gray, 669 F.3d 556, 564 (5th Cir.
24 GEORGE V. EDHOLM
2012), vacated on other grounds, 133 S. Ct. 151 (2012).
Forced sedation, anoscopy, intubation, and bowel evacuation
are more invasive than the stomach-pumping that Rochin
described as “close to the rack and screw.” 342 U.S. at 172;
accord United States v. Booker, 728 F.3d 535, 545 (6th Cir.
2013). If George’s evidence is believed, the procedures were
performed despite his vociferous protests and without
explanation, consultation, or other “reasonable steps to
mitigate [his] anxiety, discomfort, and humiliation.”
Cameron, 538 F.2d at 258; see also Winston, 470 U.S. at 765
(“[T]o take control of respondent’s body, to drug this
citizen—not yet convicted of a criminal offense—with
narcotics and barbiturates into a state of unconsciousness, and
then to search beneath his skin for evidence of a crime . . .
involves a virtually total divestment of respondent’s ordinary
control over surgical probing beneath his skin.” (citation and
internal quotation marks omitted)).
The search here was at least as invasive as searches we
and other courts have characterized as unwarranted intrusions
on dignitary interests. In United States v. Cameron, a suspect
underwent a digital rectal exam and two enemas before being
forced to drink a liquid laxative. 538 F.2d at 258. In an
opinion by then-Judge Kennedy, we held that search
unreasonable. Id. at 258–60. In Ellis v. City of San Diego,
176 F.3d 1183 (9th Cir. 1999), we held that the plaintiff had
alleged a clear Fourth Amendment violation when he claimed
that doctors sedated him, took blood samples, and inserted a
catheter into his penis. Id. at 1186, 1191–92; see also
Booker, 728 F.3d at 547 (sedation, intubation, and anal
probing are “an affront to personal dignity . . . categorically
greater” than the surgery in Winston); Gray, 669 F.3d at 564
(proctoscopy is “a greater affront to . . . dignitary interest[s]
than full-on exploratory surgery”); United States v. Husband,
GEORGE V. EDHOLM 25
226 F.3d 626, 632 (7th Cir. 2000) (sedation and reaching into
suspect’s mouth “constitute a serious invasion of . . . personal
privacy and liberty interests”); Rodriques v. Furtado,
950 F.2d 805, 811 (1st Cir. 1991) (vaginal inspection is “a
drastic and total intrusion of . . . personal privacy and
security”); Kennedy v. L.A. Police Dep’t, 901 F.2d 702, 711
(9th Cir. 1989) (visual inspections of body cavities are
“dehumanizing and humiliating”), abrogated on other
grounds by Hunter v. Bryant, 502 U.S. 224 (1991) (per
curiam); Tribble, 860 F.2d at 325 (digital rectal exam is “one
of the most intrusive methods of detecting contraband”);
Yanez v. Romero, 619 F.2d 851, 855 (10th Cir. 1980)
(catheterization is a “gross personal indignity”); Huguez v.
United States, 406 F.2d 366, 379 (9th Cir. 1968) (digital
rectal exam was “a brutal invasion of privacy”); State v.
Payano-Roman, 714 N.W.2d 548, 560 (Wis. 2006) (being
forced to drink a laxative is a “significant intrusion”).
Intrusive body searches are permissible when they are
reasonably necessary to respond to an immediate medical
emergency. See Husband, 226 F.3d at 635; People v.
Bracamonte, 540 P.2d 624, 629 (Cal. 1975). Officers
Freeman and Johnson contend that such an emergency existed
because of the risk that the baggie of cocaine base in
George’s rectum would rupture. They contend that the
procedures performed by Dr. Edholm were necessary to save
George’s life. But “since the suspect himself would have
been responsible for any such [medical] risk, only a showing
of the greatest imminent harm would justify intrusive action
for the purpose of removal of the drug.” Cameron, 538 F.2d
at 259 n.8.
Freeman and Johnson rely heavily on Dr. Edholm’s
testimony that the procedures were “life-saving treatment”
26 GEORGE V. EDHOLM
necessary to address the risk that the baggie of cocaine base
in George’s rectum would rupture. But Edholm’s testimony
would be of limited use if a jury concluded that Freeman and
Johnson were the source of false information leading Edholm
to believe that a life-threatening emergency existed. Edholm
never testified that he believed the baggie had actually
ruptured. He testified only that it could rupture: “If the golf
ball size amount of cocaine in his rectum had ruptured, he
likely would have died that evening.” As to “drug-packing”
in general, Edholm testified that “if you don’t get the drugs
out, then they can rupture.” Edholm did not testify that he
had any reason to think the baggie in George’s rectum was
more likely to rupture than in any other drug-packing case.
Viewing the evidence in the light most favorable to
George, a reasonable jury could conclude that the only actual
risk to George’s health was the possibility that the baggie of
cocaine base could rupture. That sort of speculative,
generalized risk cannot on its own justify nonconsensual
procedures as invasive as those performed by Dr. Edholm.
Every person who hides a baggie of drugs in his rectum faces
a risk that the baggie will rupture. But the mere fact “that the
suspect is concealing contraband does not authorize
government officials to resort to any and all means at their
disposal to retrieve it.” Cameron, 538 F.2d at 258; see
Winston, 470 U.S. at 767. Otherwise, highly invasive
searches of drug-packing suspects’ rectums would never
violate the Fourth Amendment. That clearly is not the law.
See Rochin, 342 U.S. at 172; Cameron, 538 F.2d at 256–59;
Bracamonte, 540 P.2d at 628–31.
The record could support a jury conclusion that the search
was not reasonably necessary to address the risk of rupture of
the baggie in George’s rectum. Officers Freeman and
GEORGE V. EDHOLM 27
Johnson both testified they had seen doctors allow suspects
with drugs in their rectums to pass the drugs naturally, using
only laxatives, including one suspect who had a “very high”
heart rate and, as a result, was placed in intensive care. A
rational jury could thus find that the potential risk of rupture
could be adequately addressed by keeping George in the
hospital and monitoring his bowel movements. See United
States v. Aman, 624 F.2d 911, 913 (9th Cir. 1980) (allowing
police to hold drug-packing suspect “where medical
personnel and facilities were immediately available” in case
the package ruptured); Cameron, 538 F.2d at 258 & n.7.
Third, we weigh the intrusiveness of the search against
“the community’s interest in fairly and accurately
determining guilt or innocence.” Winston, 470 U.S. at 762.
The community has a strong interest in prosecuting those who
are selling cocaine base, and George likely could not have
been prosecuted without the evidence he had hidden in his
rectum. But a jury could reasonably conclude that the baggie
of cocaine base could have been recovered through far less
intrusive means. If George’s life was not in immediate
jeopardy, doctors could have kept him in the hospital,
administered laxatives, and monitored his bowel movements.
See Cameron, 538 F.2d at 258. Further, if that course of
treatment had been followed, the officers then would have
had time to seek a search warrant. See United States v.
Erwin, 625 F.2d 838, 841 (9th Cir. 1980). Under these
circumstances, the intrusiveness of the search far exceeded
what was necessary to serve the community’s interest in
recovering evidence of George’s crime.
We therefore hold, based on the Winston factors, that a
jury could conclude the procedures performed by Dr. Edholm
violated the Fourth Amendment.
28 GEORGE V. EDHOLM
2. Qualified Immunity
Even if Officers Freeman and Johnson violated George’s
Fourth Amendment rights, they are entitled to qualified
immunity if those rights were not “clearly established” at the
time of the search. See Stanton v. Sims, 134 S. Ct. 3, 4–5
(2013) (per curiam); Ashcroft v. al-Kidd, 131 S. Ct. 2074,
2083 (2011). For a right to be clearly established, the
“contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). Viewing the evidence in the light most favorable
to George, we hold that Freeman and Johnson are not entitled
to qualified immunity on the Fourth Amendment claim.
George has provided evidence that would support a jury
conclusion that Freeman and Johnson gave false information
to Dr. Edholm, and that this false information induced
Edholm to perform unconstitutionally intrusive procedures
that he would not otherwise have performed. “[E]very
reasonable official would have understood” that conduct to
violate the Fourth Amendment. al-Kidd, 131 S. Ct. at 2083
(internal quotation mark omitted). We reach this decision
based on Supreme Court precedent, “cases of controlling
authority in [the officers’] jurisdiction,” and “a consensus of
cases of persuasive authority.” Wilson v. Layne, 526 U.S.
603, 615–17 (1999).
First, it was clearly established that a private citizen’s
search may be attributed to the police when the “the private
party act[s] as an instrument or agent of the Government” in
conducting the search. Skinner, 489 U.S. at 614. That
principle had been repeatedly and clearly applied to doctors’
searches of suspects’ bodies. See, e.g., Ellis, 176 F.3d at
GEORGE V. EDHOLM 29
1191–92 (applying the Fourth Amendment to doctor and
nurse’s actions performed based on police instruction);
Cameron, 538 F.2d at 256–60 (same); Bracamonte, 540 P.2d
at 626–31 (same). No reasonable officer could have believed
that he could avoid responsibility for an unconstitutional
search by using deception to induce a private party to perform
the search. The Supreme Court has deemed that principle so
obvious as to be “axiomatic.” Norwood, 413 U.S. at 465.
The Court wrote, “[A] state may not induce, encourage, or
promote private persons to accomplish what it is
constitutionally forbidden to accomplish.” Id. (internal
quotation marks omitted).
Second, it was clearly established that a search of a
patient’s body must be reasonable. See Winston, 470 U.S. at
759–62; Cameron, 538 F.2d at 257–59. As we explained
above, forced sedation, anoscopy, intubation, insertion of a
nasogastric tube, and bowel evacuation are more intrusive
than the stomach-pumping rejected in Rochin, and at least as
intrusive as other searches characterized as highly invasive by
courts across the country. See, e.g., Husband, 226 F.3d at
632; Rodriques, 950 F.2d at 811; Kennedy, 901 F.2d at 712;
Tribble, 860 F.2d at 325; Yanez, 619 F.2d at 855; Huguez,
406 F.2d at 379; Bracamonte, 540 P.2d at 631. Case law
clearly established that the possibility that a baggie of drugs
could rupture, standing alone, cannot justify a warrantless
search as intrusive as that conducted here. See, e.g., Rochin,
342 U.S. at 172; Cameron, 538 F.2d at 258, 259 n.8; Utah v.
Hodson, 907 P.2d 1155, 1158 (Utah 1995). Indeed, the
California Supreme Court so held nearly thirty years before
the search in this case. Bracamonte, 540 P.2d at 629 & n.5;
see Stanton, 134 S. Ct. at 7 (finding important the holdings of
courts in the jurisdiction where officials act); al-Kidd, 131 S.
Ct. at 2086–87 (Kennedy, J., concurring) (same).
30 GEORGE V. EDHOLM
C. Fourteenth Amendment Claim
In addition to his claim under the Fourth Amendment,
which applies to the states through the Fourteenth
Amendment, see Mapp v. Ohio, 367 U.S. 643, 654–55
(1961), George brings a separate Fourteenth Amendment
claim based on his right to refuse unwanted medical
treatment, see Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S.
261, 278 (1990). We do not reach the merits of this claim,
see C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist.,
654 F.3d 975, 978 (9th Cir. 2011), but hold that Freeman and
Johnson are entitled to qualified immunity.
George has not identified a single case finding a
Fourteenth Amendment violation under circumstances like
those here. He cites the Seventh Circuit’s decision in United
States v. Husband, 226 F.3d at 632, but the court in that case
considered the right to refuse medical treatment only as a
factor in analyzing a Fourth Amendment claim. George relies
primarily on cases dealing either with the treatment of
persons in vegetative states, see Cruzan, 497 U.S. at 265, or
with the use of medication to render criminal defendants
competent to stand trial, see Riggins v. Nevada, 504 U.S. 127,
133–38 (1992); United States v. Rivera-Guerrero, 426 F.3d
1130, 1133 (9th Cir. 2005); see also Benson v. Terhune,
304 F.3d 874, 880–85 (9th Cir. 2002). Those cases are
“readily distinguishable.” Stanton, 134 S. Ct. at 7. Based on
the cases cited to us by George, we cannot say that “every
reasonable official” would have known the procedures
performed by Dr. Edholm violated the Fourteenth
Amendment. al-Kidd, 131 S. Ct. at 2083 (internal quotation
mark omitted).
GEORGE V. EDHOLM 31
D. Claims Against Edholm
In light of its ruling on Officers Freeman and Johnson’s
summary judgment motion, the district court suggested that
George voluntarily dismiss without prejudice his claims
against Dr. Edholm. Before George did so, however, the
district court entered a final judgment dismissing George’s
complaint in its entirety. One day later, George filed a notice
of dismissal under Federal Rule of Civil Procedure
41(a)(1)(A)(i). George now argues his voluntary dismissal
was a nullity because it followed the district court’s order of
final judgment. George cites no case on point, and our circuit
does not appear to have addressed the issue. The district
court may address that issue, as well as any others related to
Edholm, on remand.
Conclusion
We reverse the grant of summary judgment to Officers
Freeman and Johnson on George’s Fourth Amendment claim.
We affirm the grant of summary judgment on his Fourteenth
Amendment claim. We decline to address issues related to
Dr. Edholm. Each party shall bear its own costs on appeal.
REVERSED in part, AFFIRMED in part, and
REMANDED.