Adrian King, Jr. v. Jim Rubenstein

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6382
ADRIAN F. KING, JR.,
Plaintiff - Appellant,
v.
JIM RUBENSTEIN, Commissioner; MARVIN C. PLUMLEY, Warden;
DIANNE R. MILLER, Associate Warden Programs/Housing;
SERGEANT GROVER ROSENCRANCE, Deputy Warden; LESTER THOMPSON,
Unit Manager E-1 Segregation; SHERRI DAVIS, Unit Manager
E-2 Segregation; STACY SCOTT, Supervised Psychologist/Ad
Seg Board; MIKE SMITH, SR., Unit Manager Ad Seg Board;
SAMANTHA GSELL, Case Manager Ad Seg Board; ADAM SMITH, Unit
Manager/Ad Seg Board Chairman; CLIFF GOODIN, Head
Psychologist, in their official and personal capacities,
Defendants - Appellees.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Groh, Chief
District Judge. (3:14-cv-00042-GMG-JSK)
Argued: January 27, 2016 Decided: June 7, 2016
Before GREGORY, DUNCAN, and FLOYD, Circuit Judges.
Affirmed in part, reversed, vacated, and remanded in part by
published opinion. Judge Gregory wrote the opinion, in which
Judge Duncan and Judge Floyd joined.
ARGUED: Tennille Jo Checkovich, MCGUIREWOODS LLP, Richmond,
Virginia, for Appellant. Natalie C. Schaefer, SHUMAN, MCCUSKEY
& SLICER, PLLC, Charleston, West Virginia, for Appellees. ON
BRIEF: Michael W. Stark, MCGUIREWOODS LLP, Richmond, Virginia,
for Appellant. Kimberly M. Bandy, SHUMAN, MCCUSKEY & SLICER,
PLLC, Charleston, West Virginia, for Appellees Jim Rubenstein,
Marvin C. Plumley, Dianne R. Miller, Grover Rosencrance,
Lester Thompson, Sherri Davis, Mike Smith, Sr., Samantha Gsell,
and Adam Smith.
2
GREGORY, Circuit Judge:
Adrian F. King, Jr. appeals the district court’s dismissal
of his complaint for failure to state a claim. King filed suit
under 42 U.S.C. § 1983 against several correctional officers,
medical personnel, and prison administrators for alleged
violations of his constitutional rights after he underwent
surgery to remove penile implants while incarcerated. We
conclude that King’s complaint properly stated his Fourth,
Eighth, and Fourteenth Amendment Equal Protection and Due
Process claims. We also hold that King stated a claim against
Marvin Plumley. We reverse the district court’s decision on
those bases, vacate the dismissal, and remand the case for
further proceedings. We affirm the dismissal as to Stacy Scott,
Cliff Goodin, and Jim Rubenstein, but modify the dismissal of
the latter two to be without prejudice.
I.
In reviewing a dismissal for failure to state a claim, we
accept as true all of the factual allegations contained in the
complaint and draw all reasonable inferences in favor of the
plaintiff. E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 440 (4th Cir. 2011). We may consider additional
documents attached to the complaint or the motion to dismiss “so
long as they are integral to the complaint and authentic.”
3
Philips v. Pitt Cty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir.
2009). Here, we look to King’s complaint, including his
attached statement of claims, and his notice of claim, including
the grievance attachment, all filed pro se, in laying out the
following factual allegations.
a.
King is an inmate at Huttonsville Correctional Center
(“HCC”) and has been incarcerated since March 23, 2012. In fall
2008, prior to his incarceration, King had marbles implanted in
and tattoos drawn on his penis. He and his then fiancée, who is
now deceased, decided to have the implants done during the “body
modification” craze, as they had heard about the
“intensification of sensitivity and euphoric climaxes” resulting
from the procedure. J.A. 16.
On January 8, 2013, King was called to the control booth in
his unit, where a corrections officer told him to report to
“medical” to be examined. Id. at 25. King was to be examined
because an inmate reported seeing King and another inmate
implanting marbles into their penises. The nurse who examined
King verified that the marbles were not recently implanted and
that there was no sign of infection.
King was escorted to the segregation unit, where an officer
told him that the implants were not noted in his file. King
responded that when he was being processed at Mt. Olive, he
4
informed the processing officer of the marbles and tattoo. The
officer told him, “This isn’t a pornographic camera, put [your]
clothes back on.” Id.
King was subsequently found in violation of Policy
Directive 325.00-1.26, which prohibits exposing body fluids,
tattoos, and piercings. The policy states:
1.26—Exposing Body Fluids/Tattooing/Piercing: No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give
him/her a tattoo/piercing. No inmate shall possess
any tattooing/piercing equipment, to include,
tattooing ink, tattooing patterns, tattooing needles,
etc.
King Br. 24. Due to this violation, King was sentenced to sixty
days of punitive segregation, sixty days loss of privileges, and
ninety days of loss of good time.
While King was in segregation, Sherri Davis, the unit
manager of segregation unit E-2, brought King to her office.
There, she had King sign a piece of paper without giving him the
opportunity to read it. Davis told him that he was signing
consent papers to go to Ruby Memorial Medical Center to have a
doctor examine his implants and, if necessary, remove them.
King was taken to Ruby Memorial, where he was examined by Dr.
Henry Fooks, Jr. Fooks determined that the implants were not
recently inserted and that there was no medical need to remove
them. When King was transported back to HCC, Deputy Warden
5
Grover Rosencrance told him, “Get comfortable you stupid Son of
a Bitch, you’ll be placed in Administrative Segregation until
you do as I say and have those marbles removed.” J.A. 26. King
responded that Rosencrance could not punish him twice for the
same violation. Rosencrance said, “I can do what the Fuck I
want.” Id. King was then returned to administrative
segregation. King alleges that HCC officials threatened him
with segregation for the remainder of his sentence and loss of
parole eligibility if he did not consent to surgery.
On June 19, 2013, King “gave in” and let them remove the
marbles at Ruby Memorial. Id. The surgery was done
“practically against [his] will as [he] was coerced by the
administration because of the threats they made” about continued
segregation and loss of parole eligibility. Id. at 31.
As a result of the surgery, King now experiences physical
symptoms. He has tingling and numbness in his penis; pain in
the area where the marbles were removed; an “uncomfortable,
stretching feeling where the cut was made”; pain in his penis
when it rains, snows, or gets cold; and “stabbing pain [that]
shoots into [his] stomach” if he bumps into something or the
scar on his penis is touched. Id. at 15, 27. King never
experienced these symptoms until after his implants were
removed.
6
King also experiences mental and emotional anguish as a
result of the surgery. He gets “very depressed every time [he]
shower[s] or urinate[s]” because he sees the scarring and is
reminded of his deceased fiancée. Id. at 15. He worries about
“the possibilities that [his] penis will still be numb when [he]
. . . is with another woman” and about how he will explain what
happened if in the future someone is “sickened by the scarring.”
Id. at 16. Additionally, King is unable to urinate when any of
his five roommates are in the cell with him, a problem he did
not previously experience. He is also frightened every time he
sees any of the defendants. He is ridiculed by the staff: they
refer to him as “Marble Man” and when they search him, they ask
where his marbles are. Id. at 15. Correctional officers make
“[h]omosexual remarks” when they see him. Id. He also now has
gay inmates approach him, because of the way the staff have
gossiped about him. These inmates ask him questions that make
him feel uncomfortable and “place [him] in a compromising
situation, where it is a strong possibility that a physical
confrontation” might occur. Id. at 17.
b.
King originally filed suit under 42 U.S.C. § 1983 in the
Circuit Court of Kanawha County, West Virginia. His complaint
named as defendants Jim Rubenstein (Commissioner), Warden Marvin
Plumley, Dianne R. Miller (Associate Warden Programs/Housing),
7
Deputy Warden Rosencrance, Lester Thompson (Unit Manager E-1
Segregation), Sherri Davis, Stacy Scott (Supervised
Psychologist/Ad Seg Board), Mike Smith, Sr. (Unit Manager, Ad
Seg Board), Samantha Gsell (Case Manager Ad Seg Board), Adam
Smith (Unit Manager Ad Sec Board Chairman), and Cliff Goodin
(Head Psychologist). A circuit court judge in the Circuit Court
of Kanawha County, West Virginia, reviewed the initial pleadings
and found that the complaint was not “frivolous, malicious or
fails to state a claim,” and accordingly had the clerk issue
process against the defendants. Id. at 33. The defendants
removed the case to the U.S. District Court for the Southern
District of West Virginia and moved to dismiss under Federal
Rule of Civil Procedure 12(b)(6). The case was transferred to
the Northern District of West Virginia, where a magistrate judge
entered his report and recommendation on the motion to dismiss.
Both sides filed objections; only the defendants filed
responses. The district court rejected in part and adopted in
part the magistrate’s recommendation and granted the defendants’
motion to dismiss in full. King timely appeals.
II.
This Court reviews de novo the grant of a motion to
dismiss. Simmons v. United Mortg. & Loan Inv., LLC, 634 F.3d
754, 768 (4th Cir. 2011). A Rule 12(b)(6) motion tests the
8
sufficiency of a complaint; it does not, however, “resolve
contests surrounding the facts, the merits of a claim, or the
applicability of defenses.” Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999) (quoting Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992)). To survive a motion
to dismiss, the complaint’s “[f]actual allegations must be
enough to raise a right to relief above the speculative level”—
that is, the complaint must contain “enough facts to state a
claim for relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). Bare legal
conclusions “are not entitled to the assumption of truth” and
are insufficient to state a claim. Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Nevertheless, pro se pleadings are “to be
liberally construed,” and “a pro se complaint, however
inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97,
106 (1976)).
III.
King appeals the dismissal of his substantive claims, as
well as the dismissal of Scott, Plumley, Rubenstein, and Goodin.
9
a.
King first claims that the district court improperly
dismissed his Fourth Amendment claim. The Fourth Amendment
protects “[t]he right of the people to be secure in their
persons . . . against unreasonable searches and seizures.” U.S.
Const. amend. IV. 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)).
In Hudson, the Supreme Court held that an inmate has no
reasonable expectation of privacy, and thus no Fourth Amendment
protection, in his prison cell, given “the paramount interest in
institutional security.” Id. at 528. While “imprisonment
carries with it the circumscription or loss of many significant
rights,” the Supreme Court nevertheless cautioned that “prisons
are not beyond the reach of the Constitution.” Id. at 523-24.
Indeed, five years earlier in Bell v. Wolfish, 441 U.S. 520
(1979), the Supreme Court “developed a flexible test to
determine the reasonableness of a broad range of sexually
invasive searches . . . .” United States v. Edwards, 666 F.3d
877, 883 (4th Cir. 2011) (citation and internal quotation marks
omitted). Under Wolfish, a court is to consider the following
10
factors to determine the reasonableness of the search: “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.” 441 U.S. at 559.
This Court has previously “assum[ed] that the Fourth
Amendment continues to apply to lawfully confined prisoners”
before weighing the competing interests to determine the
reasonableness of a search. E.g., Jones v. Murray, 962 F.2d
302, 307 (4th Cir. 1992). As the district court noted, “nothing
in Hudson indicates the Supreme Court intended to abrogate a
prisoner’s expectation of privacy beyond his cell.” J.A. 171.
And we agree with our sister circuits that, under Wolfish,
prisoners retain an interest in some degree of bodily privacy
and integrity after Hudson. See King v. McCarty, 781 F.3d 889,
900 (7th Cir. 2015) (per curiam) (“Even in prison, case law
indicates that the Fourth Amendment protects, to some degree,
prisoners’ bodily integrity against unreasonable intrusions into
their bodies.”); Sanchez v. Pereira-Castillo, 590 F.3d 31, 42 &
n.5 (1st Cir. 2009) (“We have recognized that a limited right to
bodily privacy against searches is not incompatible with
incarceration.”); Thompson v. Souza, 111 F.3d 694, 699 (9th Cir.
1997) (“Notwithstanding the language in Hudson, our circuit has
held that the Fourth Amendment right of people to be secure
against unreasonable searches and seizures extends to
11
incarcerated prisoners . . . .” (internal quotations omitted));
Elliott v. Lynn, 38 F.3d 188, 191 n.3 (5th Cir. 1994) (same);
Cornwell v. Dahlberg, 963 F.2d 912, 916 (6th Cir. 1992) (“[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.”); Covino v.
Patrissi, 967 F.2d 73, 78 (2d Cir. 1992) (holding that despite
Hudson, “inmates do retain a limited right to bodily privacy”);
Dunn v. White, 880 F.2d 1188, 1191 (10th Cir. 1989) (same);
Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (citing Wolfish
and applying traditional Fourth Amendment analysis to prisoner’s
claim). Accordingly, King maintains some legitimate expectation
of privacy in his person.
We hold that the Wolfish factors weigh against
reasonableness and thus reverse the district court’s dismissal
of King’s complaint. As to the first factor, the scope of the
intrusion, the surgery was beneath the skin into a sensitive,
private body part—it was certainly not “commonplace.” See
Sanchez, 590 F.3d at 45. Unlike the blood test in Schmerber v.
California, 384 U.S. 757 (1966), this surgery involved “risk,
trauma, [and] pain”: King alleged scarring and botched
incisions, pain and tingling, and emotional anguish. See 384
U.S. at 771; see also Winston v. Lee, 470 U.S. 753 (1985)
(holding, outside of the prison context, that Virginia could not
12
compel surgery to remove a bullet from a suspect’s chest, in
part because of the risk, trauma, and pain involved in the
procedure); Sanchez, 590 F.3d at 45 (finding scope egregious
where plaintiff alleged that he was “slashed and mutilated”
during surgery, that his “life and health were jeopardized,” and
that he experienced “severe physical and emotional pain” as a
result). The interest in bodily integrity involves the “most
personal and deep-rooted expectations of privacy,” Lee, 470 U.S.
at 760, and here, the nature of the surgery itself—surgery into
King’s penis—counsels against reasonableness.
The district court acknowledged the “unusual” nature of the
surgery but found that King “precipitated [it] by electing the
unusual insertion of marbles into his penis” in the first
instance. J.A. 177. That King decided to have marbles inserted
into his penis, however, is of no moment; the scope of the
intrusion is not a subjective inquiry. See, e.g., United States
v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015) (finding the scope
suggested unreasonability where officers physically extracted a
plastic bag containing contraband from defendant’s rectum,
making no mention that defendant had presumably inserted it
himself); Rodriques v. Furtado, 950 F.2d 805, 811 (1st Cir.
1991) (finding a warrant-authorized vaginal-cavity search
“extreme,” again not considering that plaintiff inserted the
13
contraband herself). We find the scope of the intrusion
objectively extreme.
The second factor, the manner in which the search was
conducted, also favors finding the search unreasonable. “[O]nce
contraband is discovered in the course of a sexually invasive
search, the contraband may not be seized in a manner that poses
an unnecessary risk of harm to the person being searched.”
Edwards, 666 F.3d at 885. Again, King alleged that the surgery
left him scarred, with pain and emotional anguish. We agree
with the district court that “the surgery posed a risk to King’s
health and caused him trauma and pain.” J.A. 176.
Turning to the third factor, the defendants correctly
contend that they have an interest in controlling contraband
within the prison for the health and security of the inmates.
The Supreme Court has long recognized the need to “guarantee the
safety” of the prison community, administrators, inmates, and
visitors alike. Hudson, 468 U.S. at 527. Indeed, “prison
administrators . . . , and not the courts, [are] to make the
difficult judgments concerning institutional operations.”
Turner v. Safley, 482 U.S. 78, 89 (1987) (quoting Jones v. N.C.
Prisoners’ Union, 433 U.S. 119, 128 (1977)) (alterations in
original). “In addressing this type of constitutional claim
courts must defer to the judgment of correctional officials
unless the record contains substantial evidence showing their
14
policies are an unnecessary or unjustified response to problems
of jail security.” Florence v. Bd. of Chosen Freeholders of
Cty. of Burlington, 132 S. Ct. 1510, 1513-14 (2012).
Nevertheless, searches conducted “in an abusive fashion
. . . cannot be condoned.” Wolfish, 441 U.S. at 560 (internal
citation omitted). Instead, the “‘deference’ that is afforded
to prison administrators ‘does not insulate from review actions
taken in bad faith and for no legitimate purpose.’” Williams v.
Benjamin, 77 F.3d 756, 765 (4th Cir. 1996) (quoting Whitley v.
Albers, 475 U.S. 312, 322 (1986)) (considering an Eighth
Amendment claim); see also Hudson, 468 U.S. at 528
(“[I]ntentional harassment of even the most hardened criminals
cannot be tolerated by a civilized society.”).
Throughout his complaint, King stated that the defendants
had no penological justification in the surgery, J.A. 16, 18,
and provided facts that support this contention. First, he
alleged that the marbles were implanted prior to incarceration
(an allegation supported by the findings of the two medical
professionals who inspected the marbles). This, he argues, is
inconsistent with the policy directive that he was found in
violation of:
1.26—Exposing Body Fluids/Tattooing/Piercing: No
inmate shall intentionally expose to any person body
fluids such as urine, feces, spit, blood, or any other
body fluid. No inmate shall give oneself or others a
tattoo/piercing or allow another inmate to give
15
him/her a tattoo/piercing. No inmate shall possess
any tattooing/piercing equipment, to include,
tattooing ink, tattooing patterns, tattooing needles,
etc.
Id. at 24. While the defendants contested the timing of the
insertion of King’s implants at oral argument, at this stage, we
draw all reasonable inferences in King’s favor. E.I. du Pont de
Nemours & Co., 637 F.3d at 440. Accordingly, King already had
the implants and was not exposing blood by inserting the marbles
at the time of the violation.
King also alleged that other prisoners “implanted foreign
objects into their penises,” but unlike King, they have been
permitted to keep them. J.A. 27. King noted that some of these
inmates have “even had it done while incarcerated.” Id. at 17.
The defendants point to King’s examples of other inmates as
proof that this practice is not an isolated occurrence,
contending that “inmates have now devised an additional place to
potentially conceal contraband: beneath their skin.”
Appellees’ Br. 18-19. King alleges, however, that the staff
knew of this behavior and “caught, charged and convicted” other
inmates but did not require them to surgically remove their
implants. J.A. 17. These allegations contradict the
defendants’ arguments that prison officials are to detect and
prevent this behavior and that a general ban is preferable to
carving out exceptions for individual inmates. Appellee’s Br.
16
19-20 (citing Florence, 132 S. Ct. at 1516; Hudson, 468 U.S. at
527). And while not conclusive, these allegations lend support
to King’s argument that the officers’ actions here were meant to
harass.
Finally, the argument that King consented to the surgery
does not provide cover for the defendants. As in Sanchez, King
raised allegations that his consent was not freely given. E.g.,
J.A. 15 (“I was threatened with Administrative Segregation until
I discharge my sentence, if I did not consent to the surgery to
have my ‘Professionally Implanted Marbles’ removed.”); id. at
25-26 (describing under what conditions he was placed in
segregation, including keeping him in segregation “under ‘False
Pretenses’”); id. at 27 (“I was FORCED with the use of MENTAL
TORTURE and UNLAWFUL SEGREGATION to remove my implants that were
professionally done.”); see Sanchez, 590 F.3d at 46-47.
“‘Consent’ that is the product of official intimidation or
harassment is not consent at all.” Florida v. Bostick, 501 U.S.
429, 438 (1991). Based on King’s complaint, his consent to
surgery was not “voluntarily given, and [instead] the result of
duress or coercion, express or implied.” Schneckloth v.
Bustamonte, 412 U.S. 218, 248 (1973).
While prison officials must be afforded wide deference in
deterring security threats, the pleadings raise sufficient
concerns about the legitimacy of the reasons for surgery. This
17
is doubly so where defendants sought “to intrude upon an area in
which our society recognizes a significantly heightened privacy
interest,” requiring “a more substantial justification” to make
the search “reasonable.” Lee, 470 U.S. at 767. Thus, at this
early stage of the proceedings, we find that the justification
for the search weighs in favor of unreasonableness.
The fact that the search occurred in a hospital does not
trump the overwhelming evidence that the search was
unreasonable. Accordingly, we reverse the district court’s
dismissal of King’s claim and hold that he pleaded sufficient
facts to establish a Fourth Amendment claim plausibly entitling
him to relief.
b.
King next appeals the dismissal of his Eighth Amendment
claim. The Eighth Amendment “prohibits the infliction of ‘cruel
and unusual punishments’ on those convicted of crimes.” Wilson
v. Seiter, 501 U.S. 294, 297 (1991). “[T]o make out a prima
facie case that prison conditions violate the Eighth Amendment,
a plaintiff must show both ‘(1) a serious deprivation of a basic
human need; and (2) deliberate indifference to prison conditions
on the part of prison officials.’” Strickler v. Waters, 989
F.2d 1375, 1379 (4th Cir. 1993) (quoting Williams v. Griffin,
952 F.2d 820, 824 (4th Cir. 1991)). The first prong is
objective and requires that the deprivation be “sufficiently
18
serious”; the second requires us to determine whether
subjectively “the officials act[ed] with a sufficiently culpable
state of mind.” Wilson, 501 U.S. at 298; see Strickler, 989
F.3d at 1379.
We hold that King’s complaint plausibly satisfies both
prongs of an Eighth Amendment claim and reverse the district
court. Regarding the first prong, King alleged physical injury
and mental anguish, which he “never experienced until after [he]
was FORCED into having [his] implants removed . . . or remaining
in Segregation INDEFINATELY [sic].” J.A. 27. These include
tingling and numbness in his penis; pain in the area where the
marbles were removed; an “uncomfortable, stretching feeling
where the cut was made;” pain in his penis when it rains, snows,
or gets cold; and “stabbing pain [that] shoots into [his]
stomach” if he bumps into something or his penis is touched
where the scar is. Id. at 15, 27. King also gets “very
depressed every time [he] shower[s] or urinate[s]” because he
sees the scarring and is reminded of the marbles that his
deceased fiancée bought for him. Id. at 15. He worries about
“the possibilities that [his] penis will still be numb when [he]
. . . is with another woman” and about how he will explain what
happened if someone is “sickened by the scarring.” Id. at 16.
He is now unable to urinate when any of his five roommates are
in the cell with him, a problem he did not previously
19
experience. Id. at 15. He is also frightened every time he
sees any of the defendants. Id. King claims that he is
“constantly ridiculed by staff”: they call him “Marble Man” and
ask where his marbles are. Id. Guards also “make Homosexual
remarks that entail [his] marbles when they see [him].” Id. He
now has “[g]ay inmates approaching [him] because the staff that
was involved in forcing [him] to have the surgery, have
continually gossiped” about him. Id. at 16. These inmates ask
him questions that are “very uncomfortable” and put him in a
“compromising situation, where it is a strong possibility that a
physical confrontation” will occur. Id. at 17. These facts are
sufficient to support a finding of serious injury.
In dismissing the claim, the district court read too
narrowly the extent of King’s harm. The court pointed to our
decision in Allgood v. Morris, 724 F.2d 1098 (4th Cir. 1984),
for the proposition that segregated confinement is not
unconstitutional. The court also concluded that any harm to
King resulted only from the surgery, not from his segregation.
This reliance on Allgood is misplaced. Indeed, we stated,
“[S]egregated confinement is not per se unconstitutional.”
Allgood, 724 F.2d at 1101 (citing Sweet v. S.C. Dep’t of Corr.,
529 F.2d 854, 860 (4th Cir. 1975)). But that very language is
fatal to the district court’s conclusion. Segregation, by
itself, is not the harm King alleged in his complaint. Cf.
20
Sweet, 529 F.2d at 861 (“[Certain] inescapable accompaniments of
segregated confinement[] will not render segregated confinement
unconstitutional absent other illegitimate deprivations.”
(emphasis added)).
In his complaint, King provides that his Eighth Amendment
claim was based on more than the confinement itself: “The Staff
at [HCC] Abused their power when they took it upon themselves to
use threats of Administrative Segregation for the remainder of
my sentence and loss of Parole Eligibility in order to
intimidate me into consenting to a surgery that they had no
right to have performed.” J.A. 16; see id. at 15, 25-27
(describing threats of administrative segregation until
discharge of sentence, as well as sentence of punitive
segregation, loss of privileges, and loss of good time for
violation of policy directive). Put another way, King alleges
more than segregation per se as his Eighth Amendment violation;
instead, the confinement itself was used as a tool to coerce
King into consenting to surgery, which in turn resulted in
physical and mental injuries. This harm resulting from the
coerced surgery, of which the segregation was a part, is
sufficient to satisfy the first prong of an Eighth Amendment
violation.
As to the second prong, only the “unnecessary and wanton
infliction of pain” implicates the Eighth Amendment. Wilson,
21
501 U.S. at 297 (quoting Estelle, 429 U.S. at 104) (emphasis
omitted). The requisite state of mind is thus “one of
deliberate indifference to inmate health or safety.” Odom v.
S.C. Dep’t of Corr., 349 F.3d 765, 770 (4th Cir. 2003) (citation
and internal quotation marks omitted). While “deliberate
indifference entails something more than mere negligence, the
cases are also clear that it is satisfied by something less than
acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.” Farmer v. Brennan, 511 U.S.
825, 835 (1994).
“Among ‘unnecessary and wanton’ inflictions of pain are
those that are ‘totally without penological justification.’”
Rhodes v. Chapman, 452 U.S. 337, 346 (1981) (quoting Gregg v.
Georgia, 428 U.S 153, 183 (1976)). A prisoner states a claim
under the Eighth Amendment when he plausibly alleges that the
conduct in question “was motivated by a desire to harass or
humiliate rather than by a legitimate justification, such as the
need for order and security.” King, 781 F.3d at 897 (citing
cases); see also Hope v. Pelzer, 536 U.S. 730, 738 (2002)
(discussing “taunting” and “humiliation” as circumstances that
contributed to finding that unnecessarily handcuffing prisoner
to a hitching post “violated the ‘basic concept underlying the
Eighth Amendment[, which] is nothing less than the dignity of
man’” (quoting Trop v. Dulles, 356 U.S. 86, 100 (1958)
22
(alterations in original)); Hudson, 468 U.S. at 530
(underscoring that the Eighth Amendment protects against
“calculated harassment unrelated to prison needs”).
In King, the Seventh Circuit reversed a district court’s
dismissal of an inmate’s claim that being forced to wear a
transparent jumpsuit during his transfer violated the Eighth
Amendment. 781 F.3d at 896. The court pointed to the
plaintiff’s allegations that he was “degraded and humiliated by
being transported in a see-through jumpsuit that left him
exposed . . . .” Id. at 898. The plaintiff’s assertion that
“there was no legitimate reason for this policy” was supported
by his allegation, among others, that other inmates were not
required to wear similar garments. Id. The court cautioned,
“Even where prison authorities are able to identify a valid
correctional justification for the search, it may still violate
the Eighth Amendment if conducted in a harassing manner intended
to humiliate and cause psychological pain.” Id. at 897
(citation and internal quotation marks omitted).
Here, King alleged that there was “absolutely NO security
interest” in removing his implants, J.A. 16; see also id. at 18
(“There was absolutely NO penological interest in forcing the
Petitioner to consent to the surgery.”), and supports this
contention with factual allegations. The removal was not
medically necessary: the nurse who first examined him confirmed
23
that the marbles were not recently implanted and there was no
sign of infection, and the doctor he saw confirmed this. Id. at
25-26. Further, King alleges that other prisoners have
“implanted foreign objects into their penises,” but unlike King,
they have been permitted to keep them. Id. at 27. King notes
that some of these inmates have “even had it done while
incarcerated.” Id. at 17. Like those presented in King,
“[t]hese facts tend to suggest that there was no security
reason” for requiring either surgery or indefinite segregation.
See 781 F.3d at 898.
Moreover, “a factfinder may conclude that a prison official
knew of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842; Makdessi v. Fields, 789 F.3d
126, 133 (4th Cir. 2015). Here, as King argues, “[i]nvasive
surgery on a highly-sensitive body part has obvious risks,” of
which the defendants must have been aware. King Br. 30. We
agree that these risks were “compounded” by the fact that the
marbles were not recently implanted and their removal not
medically necessary. Id. King’s consent to the surgery does
not change this. A prisoner does not absolve correctional
officers of risk simply by “not accepting [their] offer to stay
in segregation.” Thomas v. Younce, 604 F. App’x 325, 326 (4th
Cir. 2015) (unpublished). Here, King “did not voluntarily place
himself at risk [posed by surgery]; rather, he refused [the]
24
objectionable offer to place him in segregation . . . in lieu of
[surgery], where he faced substantial risk of serious injury.”
Id. We thus reverse the district court’s dismissal of King’s
Eighth Amendment claim.
c.
King also appeals the dismissal of his Fourteenth Amendment
Equal Protection claim. “The purpose of the equal protection
clause of the Fourteenth Amendment is to secure every person
within the State’s jurisdiction against intentional and
arbitrary discrimination.” Village of Willowbrook v. Olech, 528
U.S. 562, 564 (2000) (internal quotation marks and alteration
omitted). “To succeed on an equal protection claim, a plaintiff
must first demonstrate that he has been treated differently from
others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful
discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001). We then consider “whether the disparity in
treatment can be justified under the requisite level of
scrutiny.” Id. “[T]he Supreme Court has recognized the
validity of ‘class of one’ Equal Protection claims, ‘where the
plaintiff alleges that she has been intentionally treated
differently from others similarly situated and that there is no
rational basis for the difference in treatment.’” Willis v.
Town Of Marshall, N.C., 426 F.3d 251, 263 (4th Cir. 2005)
25
(quoting Olech, 528 U.S. at 564); see also Sansotta v. Town of
Nags Head, 724 F.3d 533, 542-44 & n.13 (4th Cir. 2013). We hold
that King’s allegations are sufficient to state a class-of-one
equal protection claim. 1
With regard to the first prong, we find that King’s
complaint alleged facts that he was treated differently from
other similarly situated inmates. King alleged that there were
at least two other inmates with implants in their penises.
These inmates were known to prison officials and were similarly
“caught, charged and convicted,” but neither was subjected to
extended segregation or surgery. J.A. at 17. King further
alleges that the defendants “single[d him] out” from these other
inmates. Id. at 27. Taken together, we find these allegations
sufficient to state an intentional disparity in treatment from
other similarly situated inmates.
We thus turn to the second prong of King’s equal protection
claim. In general, unless a suspect class is involved,
disparate treatment “is presumed to be valid and will be
sustained ‘if there is a rational relationship between the
disparity of treatment and some legitimate governmental
purpose.’” Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002)
1We note King’s argument that he was discriminated against
because of homosexual animus on the part of prison officials.
Because we find that King has stated a class-of-one claim, we do
not find it necessary to resolve this alternative theory now.
26
(quoting Heller v. Doe, 509 U.S. 312, 319-20 (1993)); see also
Olech, 528 U.S. at 564 (applying rational basis review to class-
of-one claims). When equal protection challenges arise in the
prison context, however, “courts must adjust the level of
scrutiny to ensure that prison officials are afforded the
necessary discretion to operate their facilities in a safe and
secure manner.” Veney, 293 F.3d at 732. That is, even when a
“regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate
penological interests.” Turner, 482 U.S. at 89; Morrison, 239
F.3d at 655. To evaluate whether an action is reasonable, we
apply the factors set forth in Turner: (1) whether there is a
“valid, rational connection between the policy and the
penological interest”; (2) whether there is an “alternative
means of exercising the right” available to inmates; (3) what
“impact accommodation of the asserted right will have on” the
prison, including guards, other inmates, and prison resources;
and (4) “the absence of ready alternatives that fully
accommodate the prisoner’s rights at de minimis cost to valid
penological interests.” Morrison, 239 F.3d at 655 (citing
Turner, 482 U.S. at 89).
We have held that “[p]romoting the inmates’ safety and
health is a legitimate concern.” Jehovah v. Clarke, 798 F.3d
169, 178 (4th Cir. 2015) (citing McRae v. Johnson, 261 F. App’x
27
554, 558 (4th Cir. 2008) (unpublished)). Nonetheless, as
discussed above, we are not persuaded by the defendants’
arguments that King’s marbles posed a security threat.
Additionally, the defendants’ argument that permitting King to
keep the marbles could lead other inmates to implant objects
into their bodies is also unconvincing. Unlike with King, in
the defendants’ scenario, other inmates would be implanting
these objects while incarcerated, which behavior the prison has
a policy to address.
Moreover, we do not find that the other Turner factors—
particularly the third and fourth factors—support the conclusion
that that surgery was reasonable. We acknowledge that the
fourth factor, the absence of ready alternatives, “is not a
‘least restrictive alternative’ test.” Turner, 482 U.S. at 90.
Nevertheless, when pressed at oral argument, the defendants were
unable to explain why their process for dealing with an inmate
who enters prison with tattoos or even a steel rod in his arm—
where the condition is documented at booking and the inmate is
subsequently “monitored”—cannot be applied to King’s situation. 2
King also suggested other alternatives to surgery, including
leaving him alone, as defendants had allegedly done with other
2
Here, instead, when King was originally processed and
informed the officer of the marbles and tattoo, he was rebuffed
by the officer, who told him, “This isn’t a pornographic camera,
put [your] clothes back on.” J.A. 25.
28
inmates, or requiring him to cover the implants with clothing as
to not reveal their presence.
Here, the implants posed no medical risk to King, were not
recently implanted, and were not accessible nonsurgically. The
defendants do not appear to have made any attempt to confirm
whether the marbles posed a security risk and could not explain
why they could not monitor King’s marbles in the same way as
other types of preincarceration body modifications. On this
record, we conclude that surgery was an unreasonable
“exaggerated response” to defendants’ concerns. See id.
Therefore, we reverse the district court’s dismissal of King’s
Equal Protection claim.
d.
On appeal, King argues that he alleged sufficient facts to
state a claim under the Due Process Clause of the Fourteenth
Amendment. The district court did not originally consider any
substantive due process claim, and the defendants argue that
King raises this claim for the first time on appeal.
Nevertheless, King was “not required to use any precise or
magical words in [his] pleading.” Stevenson v. City of Seat
Pleasant, Md., 743 F.3d 411, 418 (4th Cir. 2014); see also
Labram v. Havel, 43 F.3d 918, 920 (4th Cir. 1995) (“Legal labels
characterizing a claim cannot, standing alone, determine whether
it fails to meet [the standard for notice pleading under Federal
29
Rule of Civil Procedure 8(a)(2)].”). Simply because King did
not specifically label a claim under a due process heading does
not mean that he did not raise one.
“[A] competent person has a constitutionally protected
liberty interest in refusing unwanted medical treatment.”
Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990).
This liberty interest survives conviction and incarceration.
Washington v. Harper, 494 U.S. 210, 221-22, (1990) (recognizing
an individual’s “significant liberty interest in avoiding the
unwanted administration” of a specific form of medical
treatment); Hogan v. Carter, 85 F.3d 1113, 1116 (4th Cir. 1996)
(en banc) (citing Harper, 494 U.S. 221-22). In this context,
prison officials may override this right when treatment is
“reasonably related to legitimate penological interests.”
Harper, 494 U.S. at 223 (citing Turner, 482 U.S. at 89). “This
is true even when the constitutional right claimed to have been
infringed is fundamental, and the State under other
circumstances would have been required to satisfy a more
rigorous standard of review.” Id. (citation omitted). As the
district court did not consider this potential claim, and given
30
the facts alleged in King’s complaint, we remand for
consideration of this claim. 3
e.
King appeals the dismissal without prejudice 4 of Scott for
failure to effect service. “[T]o preserve for appeal an issue
3The defendants argued that they are entitled to qualified
immunity, as any constitutional violations were not clearly
established. The district court did not consider this argument,
presumably because it concluded that King failed to allege a
violation. As we may affirm a dismissal on any grounds
supported by the record, Pitt Cty. v. Hotels.com, L.P., 553 F.3d
308, 311 (4th Cir. 2009), we briefly consider the argument here.
Even where a plaintiff suffers a constitutional violation,
an officer is only liable if “the right was clearly established
at the time the violation occurred such that a reasonable person
would have known that his conduct was unconstitutional.” Smith
v. Ray, 781 F.3d 95, 100 (4th Cir. 2015). “We do not require
that a prior case be identical to the case at bar for fair
notice to be provided.” West v. Murphy, 771 F.3d 209, 216 (4th
Cir. 2014) (citing Hope, 536 U.S. at 741). Instead, a law is
clearly established “so long as ‘existing precedent [has] placed
the statutory or constitutional question beyond debate.’” Id.
(quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011)).
We decline to affirm the dismissal on qualified-immunity
grounds at this stage: we cannot conclude that a right to be
free from an egregiously sexually invasive, unjustified,
compelled surgery was not clearly established under the Fourth,
Eighth, and Fourteenth Amendments. See Cruzan, 497 U.S. at 278
(“[A] competent person has a constitutionally protected liberty
interest in refusing unwanted medical treatment.”); Wolfish, 441
U.S. at 560 (establishing that inmate searches “must be
conducted in a reasonable manner” (citing Schmerber, 384 U.S. at
771-72)); Morrison, 239 F.3d at 655 (“[R]egulation that impinges
on inmates’ constitutional rights . . . is [only] valid if it is
reasonably related to legitimate penological interests.”); Lopez
v. Robinson, 914 F.2d 486, 490 (4th Cir. 1990) (“Prison
conditions are unconstitutional if they constitute an
‘unnecessary and wanton’ infliction of pain and are ‘totally
without penological justification.’” (quoting Rhodes, 452 U.S.
at 346)).
31
in a magistrate judge’s report, a party must object to the
finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the
true ground for the objection.” Makdessi, 789 F.3d at 131
(quoting United States v. Midgette, 478 F.3d 616, 622 (4th Cir.
2007)) (alteration in original). “Where an appellant has failed
to preserve an issue, it is deemed waived.” Id. Here, despite
objecting on multiple other grounds to the report and
recommendation, King did not object to the magistrate judge’s
recommendation that Scott be dismissed without prejudice.
Accordingly, King waived his right to appeal Scott’s dismissal,
and we affirm the district court.
f.
Finally, King appeals the dismissal of his claims against
Plumley, Goodin, and Rubenstein with prejudice. Alternatively,
King argues that he should have been permitted leave to amend
his complaint as to these defendants.
A state official can be in a § 1983 suit in three ways: in
his personal capacity, his official capacity, or in a more
4
The district court’s conclusion appears to have
accidentally dismissed the complaint in its entirety with
prejudice, and the judgment entered by the clerk indicates that
King’s complaint was dismissed with prejudice. Nevertheless,
the district court’s order dismissed Scott without prejudice,
and both parties understand that the dismissal was without
prejudice. J.A. 163; King’s Reply Br. 29; Defs.’ Br. 47.
32
limited way, his supervisory capacity. For personal liability,
“it is enough to show that the official, acting under color of
state law, caused the deprivation of a federal right.” Kentucky
v. Graham, 473 U.S. 159, 166 (1985). In an official-capacity
suit, however, “[m]ore is required”: the suit is “treated as a
suit against the entity,” which must then be a “‘moving force’
behind the deprivation,” id. (third quotation quoting Polk
County v. Dodson, 454 U.S. 312, 326 (1981)); thus, the entity’s
“‘policy or custom’ must have played a part in the violation of
federal law,” id. (quoting Monell v. Dep’t of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978)). Meanwhile, a
supervisor can be liable where (1) he knew that his subordinate
“was engaged in conduct that posed a pervasive and unreasonable
risk of constitutional injury”; (2) his response showed
“deliberate indifference to or tacit authorization of the
alleged offensive practices”; and (3) that there was an
“affirmative causal link” between his inaction and the
constitutional injury.” Shaw v. Stroud, 13 F.3d 791, 799 (4th
Cir. 1994) (internal quotation marks omitted).
As to Plumley, we find that King properly stated a claim.
Regarding actions in his personal capacity, Plumley overturned
the Ad.-Seg. Committee’s recommendation that King return to the
general population. King claims that Plumley so decided
“because I had not had the marbles surgically removed.” J.A. 31;
33
see also id. (“I wrote an appeal to Warden Plumley seeking
release from ad-seg. Shortly thereafter I was told by the Unit
Manager . . . that if I did not have the marbles removed I would
be sent to the Quality of Life Program at Mount Olive
Correctional Complex . . . .”). The defendants point to
documentation King produced in his opposition to their motion to
dismiss, which shows that Plumley rejected the committee’s
recommendation to keep King in punitive segregation, instead
sending him to administrative segregation. Nevertheless,
Plumley appears to have participated to some degree in King’s
segregation. King also claims that the “Administration here at
Huttonsville has chosen to single me out for some unknown
reason.” Id. at 27. The warden, more so than anyone, should be
considered the administration.
The district court concluded that these facts “only
show[ed] that Plumley played a part in King’s housing in
administrative segregation that allegedly led to the surgery.”
Id. at 165. As the district court found that segregated
confinement was not a per se Eighth Amendment violation, it held
that King failed to state a claim. As held above, however, it
was not the segregation standing alone that may have constituted
the Eighth Amendment violation.
That “King [did] not contend that Plumley [was] liable in
his official or supervisory capacity,” id. at 166, is belied by
34
the caption itself: King brought suit against all defendants in
their personal and official capacities. Moreover, the few
allegations contained in the complaint itself, construed
liberally, attempt to make a connection between Plumley’s
actions and subsequent actions of his subordinate staff. E.g.,
id. at 26 (“The Warden overturned their recommendation and
Sherri Davis (Unit Manager-Seg. Unit E-2) had me escorted to her
office [where she] had me sign a paper that she would NOT permit
me to read. She said it was consent papers to go to Ruby
Memorial Medical Center to have a doctor examine the implants,
and if necessary, have them removed.”); id. at 31 (“I wrote an
appeal to Warden Plumley seeking release from ad-seg. Shortly
thereafter I was told by the Unit Manager of E-Unit Lester
Thomspon, that if I did not have the marbles removed I would be
sent to the Quality of Life Program at Mount Olive Correctional
Complex . . . .”). In his objection to the magistrate judge’s
recommendation, King also provided,
Plumley is the Warden of HCC. He has the final say in
Administrative Segregation Hearings. When the Board
released the Plaintiff from Ad. Seg., he overturned
their decision, and ordered the Plaintiff to remain on
Ad. Seg. Status until he agreed to surgery. Therefore
he directly participated in the violation of
Plaintiff’s . . . Rights, and should not be relieved
of responsibility for his actions.
Id. at 148. Accordingly, we find that King stated a claim
against Plumley and reverse his dismissal with prejudice.
35
King’s allegations as to Rubenstein and Goodin are
admittedly significantly less robust, and the district court
found that King made no mention of either outside of the caption
of his complaint. King did make slightly more specific
allegations as to these defendants in his objections to the
magistrate judge’s report and recommendation. Even a pro se
plaintiff, however, must allege sufficient facts “to raise a
right to relief above the speculative level” and “state a claim
to relief that is plausible on its face.” Twombly, 550 U.S. at
555, 570. We find the facts alleged to fall short of this
standard.
Nevertheless, we find that the dismissal against these two
defendants should have been without prejudice. Here, King did
not move to amend his complaint, and we do not “expect[] the
district courts to assume the role of advocate for the pro se
plaintiff.” Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir.
1978). But the district court neither gave King the opportunity
to amend nor did it engage in any discussion as to why amendment
would be futile. In such a situation, the dismissal should
generally be without prejudice. See Arnett v. Webster, 658 F.3d
742, 756 (7th Cir. 2011); Coleman v. Peyton, 340 F.2d 603, 604
(4th Cir. 1965) (per curiam) (holding that, if a pro se
complaint contains a potentially cognizable claim, the plaintiff
should be given an opportunity to particularize his
36
allegations). Accordingly, we affirm the dismissal as to
Rubenstein and Goodin but modify it to reflect that it is
without prejudice.
IV.
Based on the foregoing, we conclude that King properly
stated his Fourth, Eighth, and Fourteenth Amendment Equal
Protection and Due Process claims. We also hold that King
stated a claim against Marvin Plumley. We reverse the district
court’s decision on those bases, vacate the dismissal, and
remand the case for further proceedings. We affirm the
dismissal as to Stacy Scott. We also affirm the dismissal as to
Cliff Goodin and Jim Rubenstein but modify it to be without
prejudice.
AFFIRMED IN PART, REVERSED, VACATED, AND REMANDED IN PART
FOR PROCEEDINGS CONSISTENT WITH THIS OPINION
37