Clifford George v. Thomas Edholm

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.