Gloria Bustillos v. El Paso County Hospital Dist

Case: 17-50022 Document: 00514484852 Page: 1 Date Filed: 05/23/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 17-50022 FILED

May 23, 2018

Lyle W. Cayce

GLORIA BUSTILLOS, Clerk

Plaintiff - Appellant

v.

EL PASO COUNTY HOSPITAL DISTRICT; UNIVERSITY MEDICAL

CENTER; FRANK MENDEZ; LYNETTE TELLES; DANIEL SOLOMIN;

MICHAEL PARSA,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before KING, ELROD, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

This case stems from a series of increasingly intrusive body searches

performed by state medical staff during a border stop in El Paso, Texas. The

district court dismissed Appellant’s claims based on qualified immunity,

failure to allege a valid claim for county liability under § 1983, and failure to

meet Texas state tort standards. We affirm.

BACKGROUND

I. The Search and Seizure

Appellant Gloria Bustillos (“Bustillos”) is a U.S. citizen. On September

19, 2013, Bustillos was crossing the Paso del Norte bridge from Juarez, Mexico,

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to El Paso, Texas. Bustillos did not have any illegal drugs or contraband. After

presenting her passport to Customs and Border Protection agents, Bustillos

was immediately taken into custody despite telling agents that she was not in

possession of narcotics. An increasingly intrusive series of searches followed.

First, two female agents conducted a pat down. The agents found no

drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert

to the presence of drugs. Two agents then took Bustillos to a restroom, where

they ordered her to pull down her pants and underwear and bend over slightly.

The agents conducted a visual inspection of Bustillos’ vaginal and anal area.

Again, the agents found no drugs. Despite no evidence of drugs, the agents

placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported

her to the University Medical Center (the “Hospital”) in El Paso.

At the Hospital, Doctors Michael Parsa and Daniel Solomin (the

“Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed

no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam

evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin

found no evidence of drugs. As part of these searches, the Doctors, and Nurses

Lynette Telles and Frank Mendez (the “Nurses”), 1 allegedly “brutally” probed

Bustillos’ cavities in the presence of hospital personnel. Bustillos did not

consent to any of the above searches.

At approximately 4:00 a.m. the next morning, after finding no evidence

of narcotics, the Doctors released Bustillos to CBP agents, who drove Bustillos

to the international bridge and released her.

1Though Bustillos did not specifically name the Nurses while describing these probes,

Bustillos’ complaint names Lynette Telles and Frank Mendez as defendants, who were

“acting within the scope of [their] employment as a nurse” at UMC at the time of the probes.

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II. Procedural History

On September 18, 2015, Bustillos filed a complaint in a Texas state court

alleging Bivens and § 1983 claims against various state and federal actors. The

Hospital timely removed the case to federal court.

Pertinent to this appeal, Bustillos alleged § 1983 claims under the

Fourth, Fifth, and Fourteenth Amendments against the Doctors and Nurses in

their individual capacities. Bustillos further asserted a § 1983 claim against

the El Paso County Hospital District/University Medical Center (the

“District”) 2 under a county liability theory. 3 Bustillos next asserted a claim

under the Texas Tort Claims Act (“TTCA”) against the District. Though not

listed as a cause of action, Bustillos maintained below, and on appeal, that she

asserted intentional tort claims against the Doctors and Nurses under Texas

law.

All of the relevant defendants filed motions to dismiss under 12(b)(6) and

12(b)(1), asserting various immunity theories. Solomin also filed a motion for

a protective order, seeking to prevent discovery until the district court ruled

on his qualified immunity defense.

Without ruling on the protective order, the district court granted the

motions to dismiss on all claims. The district court granted qualified immunity

to the individual defendants against the § 1983 claims and held that the tort

claims failed on immunity and Texas statutory grounds. As to the District, the

court found that Bustillos had failed to sufficiently allege any of the necessary

2Bustillos’ Amended Complaint asserts § 1983 claims against both the District and

the Hospital. The district court noted that the Hospital and the District are the same entity.

Bustillos does not challenge that determination on appeal.

Bustillos additionally brought claims against Texas Tech University Health Sciences

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Center, which the district court remanded to state court. Bustillos does not challenge that

remand, and we therefore do not address those claims.

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elements for county liability under § 1983 and failed to timely give notice for

her state tort claims.

This appeal timely followed.

DISCUSSION

Bustillos’ arguments on appeal can be divided into three broad

categories. First, she challenges the dismissal of her constitutional claims.

Second, she challenges dismissal of her state tort claims. Third, she challenges

the district court’s failure to allow discovery prior to ruling on the motions to

dismiss. We discuss each category in turn.

I. Constitutional Claims

Bustillos alleged § 1983 claims against the Doctors and Nurses in their

individual capacities, as well as against the District on a county liability

theory. Because disposition of the individual liability claims resolves both the

individual and county liability causes of action, we address only those claims

in detail. Before doing so, however, we discuss whether Bustillos’ claims for

substantive due process violations are cognizable as alleged.

A. Substantive Due Process Claims Not Cognizable

Bustillos alleges that the searches violated substantive due process

standards because they were conducted “in a manner that shocks the

conscious.” We need not reach this issue. Bustillos’ substantive due process

claims are not cognizable with her Fourth Amendment allegations.

The Supreme Court has “always been reluctant to expand the concept of

substantive due process.” Collins v. City of Harker Heights, 503 U.S. 115, 125

(1992). “Where a particular Amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of government behavior,

‘that Amendment, not the more generalized notion of ‘substantive due process,’

must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266,

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273 (1994) (plurality opinion) (quoting Graham v. Connor, 409 U.S. 386, 395

(1989)).

Bustillos’ substantive due process claims rest on the same underlying

acts that constituted the alleged unlawful search and seizure. Because the

Fourth Amendment “fully embraces” these allegations, the district court did

not err in dismissing the substantive due process claims. See Roe v. Tex. Dep’t

of Protective & Regulatory Servs., 299 F.3d 395, 411 (5th Cir. 2002).

B. Personal Capacity § 1983 Claims

Bustillos argues that the Doctors and Nurses violated her Fourth

Amendment right to be free from unreasonable searches and seizures by

detaining her in order to conduct x-ray, pelvic, and rectal exams without

reasonable suspicion of criminal activity. The district court held those

allegations cannot overcome the Doctors’ and Nurses’ qualified immunity

because the right at issue was not clearly-established. We agree and affirm on

that ground. Nonetheless, we take this opportunity to clarify the constitutional

duties of medical staff when they cooperate with law enforcement searches.

“Qualified immunity shields federal and state officials from money

damages unless a plaintiff pleads facts showing (1) that the official violated a

statutory or constitutional right, and (2) that the right was ‘clearly established’

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011). “A right is clearly established only if its contours are sufficiently clear

that ‘a reasonable official would understand that what he is doing violates that

right.’” Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v.

Creighton, 483 U.S. 635, 640 (1987)).

1. Constitutional Violation

The Fourth Amendment provides “[t]he right of the people to be secure

in their persons . . . against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause.” U.S. Const.

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amend. IV. “[W]arrantless searches and seizures are per se unreasonable

unless they fall within a few narrowly defined exceptions.” United States v.

Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). “One important exception is the

border search doctrine,” which allows “a governmental officer at the

international border [to] conduct routine stops and searches without a warrant

or probable cause.” Id. Nonetheless, for a “non-routine” search at the border,

officials must “reasonably suspect the traveler is smuggling contraband.”

United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001). Cavity searches,

strip searches, and x-ray examinations are all “non-routine.” United States v.

Kelly, 302 F.3d 291, 294 (5th Cir. 2002). “Because [the District] is a state

hospital, the members of its staff are government actors, subject to the

strictures of the Fourth Amendment.” See Ferguson v. City of Charleston, 532

U.S. 67, 76 (2001).

The searches conducted at the Hospital were all non-routine. The

Doctors and Nurses therefore needed reasonable suspicion of drug smuggling

to constitutionally justify those searches. Whether the Doctors and Nurses had

reasonable suspicion turns on an issue of first impression in this circuit: Must

medical staff establish their own, independent reasonable suspicion where law

enforcement officers either state that sufficient suspicion exists or request the

search? We conclude they do not. A medical professional has no constitutional

duty to independently evaluate the Fourth Amendment determinations of law

enforcement officers. Nonetheless, medical staff must, either through their

own independent determination or through reliance on law enforcement

officials, have sufficient suspicion to justify each search in a series of non-

routine searches.

Though there is no Fifth Circuit case on point, our sister courts have held

that medical professionals do not violate the Constitution where they rely on

law enforcement officers’ Fourth Amendment determinations. See Marshall v.

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Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1178-81 (10th Cir. 2003); Rodriques

v. Furtado, 950 F.2d 805, 810 (1st Cir. 1991); United States v. Velasquez, 469

F.2d 264, 266 (9th Cir. 1972). This approach is sensible. “Nurses and other

medical personnel have neither the training nor the information that would be

necessary to second-guess police determinations regarding probable cause,

exigent circumstances, and the like.” Marshall, 345 F.3d at 1180. 4

However, in each of these cases, the officers presented the medical

professionals with either a warrant, direct request for a specific search, or

other articulation of adequate suspicion. See id. at 1179 (granting qualified

immunity where nurse conducted blood test “at behest of police officers” who

“signed the consent form”); Furtado, 950 F.2d at 810-11 (granting qualified

immunity where doctor performed cavity search pursuant to a warrant);

Velasquez, 469 F.2d at 266 (holding that CBP officer’s “clear indication” that

contraband was hidden was “sufficient to justify the rectal search” by

physician).

A different set of facts is presented where an “examining physician

conduct[s] a [search] without a request to do so by the customs agent; and

neither the physician nor the [law enforcement] agents . . . ha[ve] real suspicion

[the individual] [is] concealing narcotics.” See Velasquez, 469 F.2d at 266. For

4 We do not resolve a related but distinct question: under what circumstances may a

medical professional be held liable for the manner in which a particular search is conducted.

Under Supreme Court caselaw, even if a particular type of compelled bodily intrusion is

justified by the circumstances, it may still violate the Fourth Amendment if performed in an

“improper manner.” See Schmerber v. California, 384 U.S. 757, 768 (1966); cf. Bell v. Wolfish,

441 U.S. 520, 560 (1979) (noting that while suspicionless visual body-cavity inspections in

prison are generally permissible, “[t]he searches must be conducted in a reasonable manner”).

To determine whether a particular procedure was conducted in an improper manner, other

courts of appeals have focused on several factors: location, hygiene, medical training,

emotional and physical trauma, and the availability of alternatives. See, e.g., United States

v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). We need not pass on those factors today. The

complaint is ambiguous as to whether the examinations were conducted in an improper

manner and the precise contours of the right were not clearly established under our law at

the time of the searches.

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instance, in Huguez v. United States, 406 F.2d 366 (9th Cir. 1968), officers did

not articulate to medical staff any information indicating that the search was

reasonable. Id. at 378-79. Nor did the officers presenting the plaintiff to the

doctor have any reasonable suspicion themselves. Id. Nonetheless, the doctor

conducted a probe, “on his own initiative without any request or suggestion

that he do so.” Id. at 378. The Ninth Circuit found that search to be

unconstitutional. Id. at 379.

Accordingly, Bustillos’ allegations could potentially assert a

constitutional violation. The complaint is, however, ambiguous on critical

factual allegations. For instance, it is unclear who Bustillos alleges actually

ordered the various searches. Further, it is unclear what the CBP officers told

medical staff regarding their basis for requesting the various searches. These

facts are important because the officers’ articulation of probable cause for a

minimally invasive search, such as the x-ray, would not necessarily shield the

Doctors and Nurses from liability for the more intrusive searches, such as the

rectal probe, if the officers did not request that search or represent that

sufficient suspicion justified it. 5 However, if the officers requested all of the

medical examinations, the Doctors and Nurses would have a strong argument

that they had no duty to second-guess the Fourth Amendment basis for those

searches.

Regardless, we need not determine the sufficiency of Bustillos’

allegations. Even if the complaint sufficiently alleges a Constitutional

violation, the violated right was not clearly established under our law at the

time of the searches.

5 We do not resolve whether medical professionals can be held liable under the Fourth

Amendment for procedures they perform for medical reasons and not at the behest of law

enforcement. See United States v. Chukwubike, 956 F.2d 209, 212 (9th Cir. 1992) (“Invasions

of the body by doctors for medical purposes are neither a search nor a seizure.”).

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2. Clearly Established Right

We cannot “define clearly established law at a high level of generality.”

See al-Kidd, 563 U.S. at 742. This inquiry “must be undertaken in light of the

specific context of the case, not as a broad general proposition.” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (quoting Brosseau v. Haugen, 543 U.S. 194,

198–99 (2004)). The Supreme Court does “not require a case directly on point,

but existing precedent must have placed the statutory or constitutional

question beyond debate.” al-Kidd, 563 U.S. at 741. “It is the plaintiff’s burden

to find a case in [her] favor that does not define the law at a ‘high level of

generality.’” Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018)

(quoting Cass v. City of Abilene, 814 F.3d 721, 733 (5th Cir. 2016)).

Appellant has not carried her burden of pointing this panel to any case

that shows, in light of the specific context of this case, that the Doctors’ or

Nurses’ conduct violated clearly established law. Further, our independent

review has uncovered only one case, Huguez. Though we find the analysis in

Huguez persuasive, and adopt it above, we are not persuaded that a single,

fifty year old case from another circuit is sufficient in this instance to have

“placed the . . . constitutional question [at issue] beyond debate.” See Al-Kidd,

563 U.S. at 741.

The district court did not err in granting the Doctors and Nurses

qualified immunity.

C. County Liability § 1983 Claims

Because Bustillos did not demonstrate a clearly established right, it

follows that her claims for deliberate indifference against the District also fail.

The Amended Complaint’s county liability theory is premised on the

District’s “deliberate indifference” to the need “to train its personnel in how to

handle government request[s] for body cavity searches.” However, a

“policymaker cannot exhibit fault rising to the level of deliberate indifference

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to a constitutional right when that right has not yet been clearly established.”

Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)

(quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en

banc)). The district court properly dismissed the county liability claim. 6

II. State Tort Claims

Bustillos argues that the district court erred in dismissing her

intentional torts claim against Doctor Solomin. We disagree. The court

properly concluded that Bustillos’ state tort claims fail under the TTCA.

“The TTCA provides a limited waiver of immunity for certain suits

against Texas governmental entities.” Bustos v. Martini Club Inc., 599 F.3d

458, 462 (5th Cir. 2010). “But a plaintiff who sues under the TTCA must elect

pursuant to § 101.106 of that act between suing a governmental unit and suing

an employee of that unit.” Id. “If the plaintiff sues both the governmental unit

and any of its employees under the TTCA, ‘the employees shall immediately be

dismissed on the filing of a motion by the governmental unit.’” Id. (quoting Tex.

Civ. Prac. & Rem. Code § 101.106(e)).

The Amended Complaint asserted tort claims against both Texas Tech

and its employee Doctors. The conduct and injuries underlying all of those torts

stemmed from the same allegations. Texas Tech filed a motion to dismiss its

employees pursuant to § 101.106(e). Accordingly, the district court properly

6In dismissing the county liability claims, the district court stated that it had found

the Doctors and Nurses “did not violate the constitution.” This is not our understanding of

the district court’s qualified immunity analysis, which found “the second qualified immunity

prong dispositive.” Granting of qualified immunity on the “clearly-established” prong is not

the same as holding that no constitutional violation occurred. That would conflate the two

prongs of qualified immunity. Thus, a grant of qualified immunity based on the “clearly-

established” prong does not necessarily negate the constitutional violation element of a

county liability claim, as the district court erroneously assumed. See Matusick v. Erie Cty.

Water Auth., 757 F.3d 31, 61-63 (2d Cir. 2014); Veneklase v. City of Fargo, 78 F.3d 1264, 1268-

70 (8th Cir. 1996).

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dismissed the tort claims against the Doctors because Bustillos had also sued

their employer entity.

Bustillos’ arguments asserting error are unavailing. In Bustos, we

directly rejected the argument that § 101.106(e) does not bar claims for

intentional torts such as assault and battery. 599 F.3d at 463. Bustos also

rejected a claim that § 101.106(f) dismissal is improper if the tort claim is not

brought directly under the Texas Tort Claims Act. See id. (stating that common

law tort claims without a statutory basis are assumed to have been brought

under the TTCA).

The district court did not err in dismissing the intentional tort claims

against the Doctors.

III. The Discovery Issue

Bustillos claims that the district court abused its discretion by failing to

grant her requests to conduct discovery prior to ruling on the motions to

dismiss. We disagree.

Both motions for protective orders noted that the Doctors had asserted

qualified immunity. “One of the most salient benefits of qualified immunity is

protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648

(5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified

immunity is alleged, the district court must first find ‘that the plaintiff’s

pleadings assert facts which, if true, would overcome’ a qualified immunity

defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014)

(quoting Backe, 691 F.3d at 648).

Because Bustillos’ claims could not overcome the clearly-established

prong of the qualified immunity defense, the district court did not err by

declining to grant Bustillos’ discovery requests.

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CONCLUSION

Though the treatment Bustillos allegedly suffered is concerning,

Bustillos has failed to assert a valid claim for relief under either Texas state

law or the law of our circuit at the time of the alleged conduct. We AFFIRM in

full.

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