142 F.3d 12 (1st Cir. 1998), 97-1958, Berthiaume v. Caron

Docket Nº:97-1958 to 97-1961.
Citation:142 F.3d 12
Party Name:Norman L. BERTHIAUME, Plaintiff, Appellee, v. Jean CARON, Betty B. Clark, James D. Bivins and William T. O'Donohue, Defendants, Appellants.
Case Date:April 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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142 F.3d 12 (1st Cir. 1998)

Norman L. BERTHIAUME, Plaintiff, Appellee,


Jean CARON, Betty B. Clark, James D. Bivins and William T.

O'Donohue, Defendants, Appellants.

Nos. 97-1958 to 97-1961.

United States Court of Appeals, First Circuit

April 21, 1998

Heard Jan. 8, 1998.

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Paul R. Johnson, William R. Fisher, Edward R. Benjamin, Jr. and Joseph H. Groff, III with whom Harrison L. Richardson, Barri L. Bloom, Richardson, Whitman, Large & Badger, Monaghan, Leahy, Hochadel & Libby, Preti, Flaherty, Beliveau & Pachios and Jensen, Baird, Gardner & Henry were on joint brief for appellants.

Terry A. Fralich with whom Peter J. DeTroy and Norman, Hanson & DeTroy were on brief for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Norman L. Berthiaume was a Maine nurse practitioner licensed by the Maine Board of Nursing. In July 1990, Berthiaume pleaded guilty to the violation of 18 U.S.C. § 1462, which prohibits the importation of obscene materials. Berthiaume had ordered and received from a United States Customs Service undercover operation in Mexico, through the mails, a videotape depicting children engaged in sexual activity. He was given two years' probation and a $2,000 fine; the sentencing judge said that the crime was an aberration.

While the charges were still pending, Berthiaume notified the Board of the situation and applied for a renewal of his nursing license. He said that he had purchased the child pornography out of professional interest. In November 1990, the Board met with Berthiaume and his attorney at an informal conference. Afterwards, the Board renewed his license on a probationary basis pending a psychological evaluation by an independent psychologist.

James Bivins, a government lawyer who was advising the Board, contacted two psychologists in an effort to find someone who could evaluate Berthiaume. One of the psychologists recommended Dr. William O'Donohue, a psychologist who was then an assistant professor at the University of Maine specializing in the evaluation of sex offenders. Jean Caron, the Board's executive director (a non-voting staff position), contacted O'Donohue, who told her and Bivins about the tests he employed and considered appropriate in such an evaluation.

These tests, O'Donohue told them, included interviews, filling out surveys, and a penile plethysmograph test. He explained that in the plethysmograph test, the subject places on his penis a device that measures its circumference and thus the level of the subject's arousal as he is shown sexually explicit slides or listens to sexually explicit audio "scenes." Caron and Bivins reported their conversation to Betty Clark, the chair of the Board, who told them to retain O'Donohue's services.

Bivins arranged the evaluation and informed Berthiaume that it would include a penile plethysmograph test. Berthiaume was told that if he refused to take the test, the Board would take steps to revoke his nursing license. Berthiaume expressed reservations orally and in writing but ultimately agreed to the test and signed the informed consent form he was given by O'Donohue. Berthiaume says he signed it under duress

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and disputes whether he was given enough information about the test to make his consent truly informed.

O'Donohue administered the battery of tests, surveys, and interviews that he had discussed with Bivins and Caron and sent a report to the Board. In his report, O'Donohue stated that the plethysmograph test was "inconclusive." However, O'Donohue made a diagnosis of probable pedophilia, relying primarily on Berthiaume's specific request for pornography depicting boys of particular ages and an admission (later retracted) by Berthiaume during an interview with O'Donohue that he had regular sexual fantasies about boys and girls between the ages of 12 and 15.

In December 1990, the Board voted to renew Berthiaume's license on a probationary basis for two years. He was required to tell employers and supervisors about his agreement with the Board, limit his clientele to patients older than 18, and receive psychological counseling. Berthiaume entered into a consent agreement with the Board in February 1991 agreeing to these conditions.

Berthiaume then brought suit in the federal district court in Maine, seeking damages under 42 U.S.C. § 1983 and the Maine Civil Rights Act, Me.Rev.Stat. Ann. tit. 5, § 4682, alleging violation of his rights under the United States and Maine constitutions. The defendants included Clark, Caron, Bivins, and O'Donohue. 1 The defendants countered with a summary judgment motion asserting defenses of absolute immunity for officials involved in quasi-judicial proceedings and qualified immunity for officials who do not violate clearly established rights.

The district court rejected the absolute immunity defense, which we need not reach. As to qualified immunity, the district court denied the defendants' request to dismiss, relying on our decision in Harrington v. Almy, 977 F.2d 37 (1st Cir.1992); the court said that "factual issues" remained open that were necessary to the decision whether the defendants violated a clearly established right and thus forfeited immunity. These open issues included:

(1) whether Defendants acted reasonably in failing to consider alternative approaches to meeting the Board's need for additional information without requiring Plaintiff to take the penile plethysmograph test; (2) whether the test was shocking, degrading, and humiliating and, if so, whether Defendants acted reasonably in failing to consider the impact of the procedure on Plaintiff; (3) whether the penile plethysmograph was scientifically capable of meeting the legitimate state interest in this case; and (4) whether the extent of Defendants' inquiry into the scientific validity of the penile plethysmograph was reasonable in light of the intrusiveness and invasiveness of the test.

The defendants have now appealed. At the threshold, Berthiaume argues that we do not have jurisdiction to consider these appeals. Ordinarily, the district court's rejection of a qualified immunity defense is immediately reviewable under the collateral order doctrine, for reasons explained by the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-18, 86 L.Ed.2d 411 (1985). However, the rule is subject to a recent exception established in Johnson v. Jones, 515 U.S. 304, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995), which Berthiaume invokes here.

In Johnson, the Supreme Court held that interlocutory appeals would not be permitted to challenge one type of ruling denying qualified immunity. Where qualified immunity turns on a question of fact and the district court declines to grant summary judgment because it says that the fact is genuinely disputed, there is no interlocutory review. 515 U.S. at 313, 115 S.Ct. at 2156. The Court's reason for the exception was prudential; it wanted to foreclose a narrow, time-consuming inquiry whose resolution by interlocutory appeal was a game not worth the candle. See id. at 316-17, 115 S.Ct. at 2157-58.

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Conversely, a defendant who concedes arguendo the facts found to be disputed is not barred by Johnson from taking an interlocutory appeal on a legal claim that the defendant is nevertheless entitled to qualified immunity on facts not controverted. This view of Johnson, set forth in Stella v. Kelley, 63 F.3d 71, 74 (1st Cir.1995), has been confirmed by Behrens v. Pelletier, 516 U.S. 299, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996). The Court in Behrens recognized that determining which facts are uncontroverted may require a certain amount of appellate effort including review of the record. Id. at 313, 116 S.Ct. at 842.

One other point needs to be borne in mind. The genuine disputes insulated from immediate review under Johnson are those involving facts, such as what happened. Questions of law application--for example, whether a set of assumed facts add up to a constitutional violation--are not so insulated and are ordinarily subject to de novo review. Behrens, 516 U.S. at 312-13, 116 S.Ct. at 841-42. This is equally true in deciding whether the assumed facts show a violation of "clearly established" law.

We turn now to the "merits" of the immunity dispute: whether, assuming that facts found controverted were resolved in favor of Berthiaume, the defendants were nevertheless entitled to qualified immunity as a matter of law based upon facts not controverted. In section 1983 cases, the classical formulation is that an official is immune if his or her actions did not violate the plaintiff's "clearly established" constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 2738-39, 73 L.Ed.2d 396 (1982). Subsequent case law has elaborated upon this concept in two significant ways:


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