M. C. v. James Amrhein ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2178
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
DR. JAMES AMRHEIN,
Defendant – Appellant,
and
DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH; KIM AYDLETTE;
MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi Davis; MARY
SEARCY; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,
Defendants.
------------------------------
AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
No. 13-2182
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE DAVIS, a/k/a Candi
Davis; MARY SEARCY,
Defendants – Appellants,
and
DR. JAMES AMRHEIN; DR. IAN AARONSON; DR. YAW APPIAGYEI-
DANKAH; DOE 1, Unknown South Carolina Department of Social
Services Employee; DOE 2, Unknown South Carolina Department
of Social Services Employee; DOE 3, Unknown South Carolina
Department of Social Services Employee,
Defendants.
------------------------------
AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
No. 13-2183
M. C., a minor by and through his parents Pamela Crawford
and John Mark Crawford,
Plaintiff – Appellee,
v.
2
DR. IAN AARONSON; DR. YAW APPIAGYEI-DANKAH,
Defendants – Appellants,
and
DR. JAMES AMRHEIN; KIM AYDLETTE; MEREDITH WILLIAMS; CANDICE
DAVIS, a/k/a Candi Davis; MARY SEARCY; DOE 1, Unknown South
Carolina Department of Social Services Employee; DOE 2,
Unknown South Carolina Department of Social Services
Employee; DOE 3, Unknown South Carolina Department of
Social Services Employee,
Defendants.
------------------------------
AIS-DSD SUPPORT GROUP; THE PROGRAM FOR THE STUDY OF
REPRODUCTIVE JUSTICE-INFORMATION SOCIETY PROJECT AT THE
YALE LAW SCHOOL AND CONSTITUTIONAL SCHOLARS,
Amici Supporting Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Charleston. David C. Norton, District
Judge. (2:13-cv-01303-DCN)
Argued: September 17, 2014 Decided: January 26, 2015
Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Reversed and remanded with instructions by unpublished opinion.
Judge Diaz wrote the opinion, in which Judge Motz and Senior
Judge Davis joined.
ARGUED: Andrew Lindemann, DAVIDSON & LINDEMANN, P.A., Columbia,
South Carolina; James Ben Alexander, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina; Elloree Ann Ganes, HOOD LAW
FIRM, LLC, Charleston, South Carolina, for Appellants. Kristi
Lee Graunke, SOUTHERN POVERTY LAW CENTER, Atlanta, Georgia, for
3
Appellee. ON BRIEF: Kenneth N. Shaw, HAYNSWORTH SINKLER BOYD,
P.A., Greenville, South Carolina, for Appellant Dr. James
Amrhein. Robert H. Hood, Barbara Wynne Showers, Deborah
Harrison Sheffield, HOOD LAW FIRM, LLC, Charleston, South
Carolina, for Appellants Dr. Ian Aaronson and Dr. Yaw Appiagyei-
Dankah. William H. Davidson, II, DAVIDSON & LINDEMANN, P.A.,
Columbia, South Carolina, for Appellants Kim Aydlette, Meredith
Williams, Candice Davis, and Mary Searcy. Kenneth M. Suggs,
JANET, JENNER AND SUGGS, LLC, Columbia, South Carolina; Alesdair
H. Ittelson, David Dinielli, SOUTHERN POVERTY LAW CENTER,
Montgomery, Alabama; Anne Tamar-Mattis, ADVOCATES FOR INFORMED
CHOICE, Cotati, California; John Lovi, William Ellerbe, STEPTOE
AND JOHNSON LLP, New York, New York, for Appellee. Suzanne B.
Goldberg, Sexuality & Gender Law Clinic, COLUMBIA LAW SCHOOL,
New York, New York, for Amicus AIS-DSD Support Group. Priscilla
J. Smith, LAW OFFICE OF PRISCILLA J. SMITH, Brooklyn, New York,
for Amicus The Program for the Study of Reproductive Justice-
Information Society Project at The Yale Law School and
Constitutional Scholars.
Unpublished opinions are not binding precedent in this circuit.
4
DIAZ, Circuit Judge:
In April 2006, a doctor performed sex assignment surgery on
sixteen-month-old M.C., who was in the legal custody of the
South Carolina Department of Social Services and had been
diagnosed at birth with an intersex condition. Four months
after the surgery, Pamela and Mark Crawford took custody of M.C.
before adopting him in December 2006. The Crawfords filed this
42 U.S.C. § 1983 action on M.C.’s behalf, against the officials
and doctors who played a part in the decision to have M.C.
undergo the surgery. The district court denied the officials’
and doctors’ motions to dismiss based on qualified immunity.
Because we find that no then-extant precedent gave fair warning
to those involved in the decision regarding M.C.’s surgery that
they were violating his clearly established constitutional
rights, we reverse.
I.
In our de novo review of a denial of a motion to dismiss
based on qualified immunity, we take “as true the facts as
alleged in the complaint, and view those facts in the light most
favorable to the nonmoving party.” Jenkins v. Medford, 119 F.3d
1156, 1159 (4th Cir. 1997) (en banc) (footnote omitted). We
draw the following facts from M.C.’s complaint.
5
M.C. was born with ovotesticular difference/disorder of sex
development (DSD). Ovotesticular DSD is an intersex condition
where the individual has ovarian and testicular tissue.
Hospital records first identified M.C. as male, but treating
physicians later sometimes referred to M.C. as female. Through
tests, examinations, and surgery, doctors determined that M.C.
had “extremely elevated” testosterone levels and that his
genitalia consisted of a testicle, an ovotestis with ovarian and
testicular tissue, a phallus, scrotalized labia, a short vagina,
and no uterus. J.A. 21-22.
In February 2005, M.C. was placed in the custody of the
South Carolina Department of Social Services (“SCDSS”) until
December 2006, when the Crawfords adopted him. Before the
adoption, SCDSS had was authorized to make medical decisions for
M.C.
After many examinations, tests, two surgeries, and numerous
consultations among SCDSS officials and doctors over the course
of a year, Drs. James Amrhein, Yaw Appiagyei-Dankah, and Ian
Aaronson recommended that M.C. have sex assignment surgery.
According to M.C, the doctors recommended the “irreversible,
invasive, and painful” surgery despite “no compelling biological
reason to raise M.C. as either male or female.” J.A. 12, 23.
The doctors also knew that they could “assign M.C. a gender of
rearing and postpone surgery” and that the surgery carried risks
6
of “complete loss of sexual function, scarring, loss of male
fertility, gender misassignment, and lifetime psychological
distress.” J.A. 24-25. In short, M.C. alleges that the surgery
was medically unnecessary. J.A. 25.
In April 2006, with consent from SCDSS, 1 Dr. Aaronson
performed a feminizing genitoplasty on sixteen-month-old M.C.
This surgery involved removing most of M.C.’s phallus, his
testicle, and the testicular tissue in his ovotestis.
After adopting M.C., the Crawfords originally raised him as
a girl, consistent with the sex assignment surgery. But as M.C.
grew older, it became clear that he identified as male, and he
is now living as a boy.
M.C., by and through the Crawfords, filed a § 1983 lawsuit
against the three doctors and seven SCDSS officials who played a
part in the decision to perform the sex assignment surgery. He
alleged Fourteenth Amendment substantive and procedural due
process violations. The district court denied the defendants’
motions to dismiss on qualified immunity grounds. The court
concluded that M.C. had pleaded sufficient facts to support his
contention that the defendants “violated his clearly established
constitutional right to procreation.” J.A. 244. The defendants
1
We do not consider the defendants’ assertion that M.C.’s
birth mother also consented to the sex assignment surgery
because that was not alleged in the complaint.
7
appealed, and we have jurisdiction. See Winfield v. Bass, 106
F.3d 525, 528 (4th Cir. 1997) (en banc) (“To the extent that an
order of a district court rejecting a governmental official’s
qualified immunity defense turns on a question of law, it
is . . . subject to immediate appeal.”).
II.
A.
To avoid dismissal of a complaint after a qualified
immunity defense is raised, a plaintiff must allege sufficient
facts to “make out a violation of a constitutional right” and
the court must find that this right “was clearly established at
the time of” the alleged violation. Pearson v. Callahan, 555
U.S. 223, 232 (2009) (internal quotation marks omitted). Courts
are “permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances in the
particular case at hand.” Id. at 236.
The right at issue must be defined “at a high level of
particularity.” Bland v. Roberts, 730 F.3d 368, 391 (4th Cir.
2013) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 251
(4th Cir. 1999)). “This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
8
that in the light of pre-existing law the unlawfulness must be
apparent.” Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(citation omitted).
To be clearly established, “[t]he contours of the right
must be sufficiently clear that a reasonable official would
understand that what he is doing violates that right.” Id. The
law can be clearly established “even in novel factual
circumstances” so long as officials had “fair notice” that their
conduct violated a constitutional right. Hope v. Pelzer, 536
U.S. 730, 739-41 (2002).
The “salient question” before us is “whether the state of
the law in [2006] gave [the defendants] fair warning that their
alleged treatment of [M.C.] was unconstitutional.” Id. at 741.
Because we find that the alleged rights at issue in this case
were not clearly established at the time of M.C.’s 2006 sex
assignment surgery, we need not reach the question of whether
M.C. alleged sufficient facts to show that the surgery violated
his constitutional rights. See, e.g., Pearson, 555 U.S. at 243-
45.
B.
We first consider M.C.’s contention, accepted by the
district court, that the defendants had fair warning that the
sex assignment surgery violated his constitutional right to
reproduction. In support of this proposition, M.C. draws our
9
attention to three cases: Planned Parenthood of Southeastern
Pennsylvania v. Casey, 505 U.S. 833 (1992); Skinner v. Oklahoma
ex rel. Williamson, 316 U.S. 535 (1942); and Avery v. County of
Burke, 660 F.2d 111 (4th Cir. 1981). Although we acknowledge
the broad statements in these cases about reproductive rights,
we cannot say that a reasonable official would understand them
as clearly establishing an infant’s constitutional right to
delay sex assignment surgery.
In Casey, the Supreme Court reaffirmed the three-part
essential holding of Roe v. Wade, 410 U.S. 113 (1973),
recognizing “the right of the woman to choose to have an
abortion before viability and to obtain it without undue
interference from the State”; confirming “the State’s power to
restrict abortions after fetal viability, if the law contains
exceptions for pregnancies which endanger the woman’s life or
health”; and establishing “the principle that the State has
legitimate interests from the outset of the pregnancy in
protecting the health of the woman and the life of the fetus
that may become a child.” Casey, 505 U.S. at 846.
Skinner involved Oklahoma’s statutory scheme to sterilize
inmates classified as habitual criminals. 316 U.S. at 536-37.
In finding the scheme unconstitutional, the Court focused its
analysis on how the law “la[id] an unequal hand on those who
ha[d] committed intrinsically the same quality of offense and
10
sterilize[d] one and not the other.” Id. at 541. The Court
gave the example that the sterilization law did not apply to
embezzlers but did apply to those who committed grand larceny.
Id. at 541-42.
In Avery, we considered the case of a fifteen-year-old girl
who was misdiagnosed with sickle cell trait and then counseled
by state actors to be sterilized. 660 F.2d at 113. Relying on
their advice, “Avery and her mother consented to the
sterilization,” but later tests showed that she did not have
sickle cell trait. Id. Avery claimed “that she was wrongfully
sterilized” because of the misdiagnosis and “because
sterilization is not medically recommended or proper, even when
there has been a correct diagnosis of [sickle cell] trait.” Id.
She sued the individuals who recommended sterilization and their
employers, the local county and its Board of Health and Board of
Social Services.
Concluding that “[t]he county and the boards may be liable
under § 1983 if their policies or customs actually caused
Avery’s injuries,” we found that summary judgment in favor of
the local government entities was improper because a genuine
issue existed as to whether the county health boards’ failure to
implement policies for counseling and sterilizing people with
sickle cell trait amounted to a tacit authorization or
11
deliberate indifference to Avery’s right of procreation. Id. at
114-15. 2
Relying on the principles gleaned from these cases, the
district court concluded that the defendants violated M.C.’s
clearly established “right to procreation.” J.A. 244. We
think, however, that this frames the right too broadly for
purposes of assessing the defendants’ entitlement to qualified
immunity. See, e.g., Winfield, 106 F.3d at 531 (holding that
the district court erred in defining the right at an
inappropriate “degree of abstraction” and instead considering
whether a much more factually detailed right was clearly
established).
In our view, the alleged right at issue is that of an
infant to delay medically unnecessary sex assignment surgery.
By “medically unnecessary,” we mean that no imminent threat to
M.C.’s health or life required state officials to consent to the
surgery, or doctors to perform it. Viewed in that light, we do
not think that Casey, Skinner, or Avery put reasonable officials
on notice that they were violating M.C.’s constitutional rights.
As we have repeatedly emphasized, “[o]fficials are not liable
for bad guesses in gray areas; they are liable for transgressing
2
Notably, however, Avery made no mention of the merits of
the claim against the individual defendants.
12
bright lines.” Maciariello v. Sumner, 973 F.2d 295, 298 (4th
Cir. 1992). We hold that the defendants did not transgress such
a bright line in this case.
C.
Although not reached by the district court, M.C. also
contends that the defendants had fair warning that the sex
assignment surgery violated his constitutional rights to bodily
integrity and privacy. For the right to bodily integrity, M.C.
points us to Winston v. Lee, 470 U.S. 753 (1985), and Rochin v.
California, 342 U.S. 165 (1952). For the right to privacy, M.C.
relies on Lawrence v. Texas, 539 U.S. 558 (2003). We find these
cases too dissimilar to give the defendants fair notice of the
alleged constitutional violation.
Lee and Rochin involved medical procedures to secure
evidence against individuals suspected of committing a crime.
In Lee, the Court disapproved of a compelled surgical procedure
to extract a bullet that could connect Lee to a robbery. 470
U.S. at 755. The Court in Rochin found shocking and
unconstitutional three police officers’ struggle to open
Rochin’s mouth to extract the capsules he had swallowed and,
when that method proved unsuccessful, forced stomach pumping to
retrieve the capsules. 342 U.S. at 166, 172. Neither of these
cases, however, gave the defendants fair notice that they were
13
violating M.C.’s right to bodily integrity by performing sex
assignment surgery that M.C. contends was medically unnecessary.
As for Lawrence, that case struck down “a Texas statute
making it a crime for two persons of the same sex to engage in
certain intimate sexual conduct.” 539 U.S. at 562. We do not
think that a case barring a criminal prosecution based on
intimate, private sexual conduct between consenting adults gave
the defendants fair notice that they could not perform sex
assignment surgery on M.C. because it might impact his future
sexual autonomy.
D.
M.C. also alleges that the defendants violated his clearly
established procedural due process rights by not seeking a “pre-
deprivation hearing” “in which a neutral fact finder could weigh
the risks and purported benefits of early [sex assignment]
surgery, as well as the possibility of postponement or
alternatives to surgery.” Appellee’s Br. at 46-47. In so
alleging, he equates the sex assignment surgery to forced
sterilization. To support his argument, M.C. relies on Buck v.
Bell, 274 U.S. 200 (1927); a concurring opinion in Skinner, 316
U.S. at 543; and numerous state statutes and cases requiring a
court hearing “before an individual incapable of consent can be
sterilized.” Appellee’s Br. at 48.
14
We find, however, that reasonable officials in 2006 did not
have fair warning that they were violating M.C.’s clearly
established rights by not seeking a hearing before performing,
or consenting to, the sex assignment surgery. M.C.’s citations
to state statutes and cases are unpersuasive because many post-
date 2006, when the surgery took place, and all come from
outside South Carolina, where the surgery took place.
Moreover, Buck and Skinner involved intentional, certain
sterilization “of mental defectives” committed to state
institutions and “habitual criminal[s],” respectively. Buck,
274 U.S. at 205; Skinner, 316 U.S. at 536. In stark contrast,
the complaint in this case alleges that the sex assignment
surgery was performed on an infant with “ambiguous genitals” and
that such surgery “may reduce or eliminate reproductive
capacity.” J.A. 11, 19 (emphasis added). And although M.C.’s
brief describes the surgery as “fertility-destroying” and a
“surgical[] castrat[ion],” Appellee’s Br. at 45, the complaint
more cautiously describes the surgery as a “potential”
sterilization, with “loss of male fertility” as one of the
“risks.” J.A. 24-25, 31-32.
While it is true that “the very action in question” need
not have “previously been held unlawful” for an official to be
stripped of qualified immunity, the unlawfulness must
nonetheless “be apparent” “in the light of pre-existing law.”
15
Anderson, 483 U.S. at 640. We conclude that the authority on
which M.C. relies did not make it apparent that the defendants
acted unlawfully by not seeking a hearing before the surgery.
III.
Our core inquiry is whether a reasonable official in 2006
would have fair warning from then-existing precedent that
performing sex assignment surgery on sixteen-month-old M.C.
violated a clearly established constitutional right. In
concluding that these officials did not have fair warning, we do
not mean to diminish the severe harm that M.C. claims to have
suffered. While M.C. may well have a remedy under state law, 3 we
hold that qualified immunity bars his federal constitutional
claims because the defendants did not violate M.C.’s clearly
established rights.
We therefore reverse the district court’s denial of the
defendants’ motions to dismiss and remand with instructions to
dismiss the complaint.
REVERSED AND REMANDED WITH INSTRUCTIONS
3
We have been advised that M.C. filed separate suits in
state court asserting state law claims against the defendants.
16