717 F.2d 888 (4th Cir. 1983), 82-6762, Lee v. Winston

Docket Nº:82-6762.
Citation:717 F.2d 888
Party Name:Rudolph LEE, Jr., Appellee, v. Andrew J. WINSTON, Sheriff; Aubrey M. Davis, Jr., Appellants, and Gerald Baliles; Circuit Court, City of Richmond, Division I, Defendants.
Case Date:September 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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717 F.2d 888 (4th Cir. 1983)

Rudolph LEE, Jr., Appellee,


Andrew J. WINSTON, Sheriff; Aubrey M. Davis, Jr., Appellants,


Gerald Baliles; Circuit Court, City of Richmond, Division

I, Defendants.

No. 82-6762.

United States Court of Appeals, Fourth Circuit

September 14, 1983

Argued March 9, 1983.

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Stacy F. Garrett, III, Deputy Commonwealth's Atty., Richmond, Va. (Aubrey M. Davis, Jr., Commonwealth's Atty., Richmond, Va., on brief), for appellants.

Joseph Ryland Winston, Richmond, Va. (House, Lubman & Davidson, Richmond, Va., on brief), for appellee.

Before WIDENER, PHILLIPS and SPROUSE, Circuit Judges.


Andrew J. Winston, Sheriff of the City of Richmond, Virginia, and Aubrey M. Davis, Jr., Commonwealth's Attorney for the City of Richmond, Virginia, appeal an order of the district court enjoining them from removing a bullet from the chest of Rudolph Lee and issuing a writ of habeas corpus. The Commonwealth of Virginia moved in state court to compel Lee to undergo surgery for the removal of a bullet believed to be relevant evidence in a criminal investigation. Lee countered by filing a petition for writ of habeas corpus and a complaint under 42 U.S.C. Sec. 1983 against Winston and Davis in federal court, contending that the involuntary removal of the bullet by surgery would violate his fourth amendment right to be free from unreasonable searches. Following a series of hearings in both state and federal courts the district court enjoined Winston and Davis from removing the bullet and also issued a writ of habeas corpus to the extent of precluding custody over Lee for purposes of removing the bullet. Because we agree that the proposed involuntary surgery would be so intrusive as to violate Lee's fourth amendment rights, we affirm the judgment of the district court enjoining, under Sec. 1983, removal of the bullet. Because we conclude that Lee's claim was not one cognizable in habeas corpus under 28 U.S.C. Sec. 2254, we vacate the order issuing the writ.


On July 18, 1982, at approximately 1:00 a.m., Ralph E. Watkinson was closing his business in Richmond when he noticed a man approaching the store from across the street. Seeing that the man was armed, Watkinson drew his own gun and a shoot-out ensued. Watkinson fired several shots, hitting the stranger in the left side of the body; the stranger returned fire, wounding Watkinson, and then fled into the night.

The police responded immediately, and within twenty minutes they apprehended Rudolph Lee about eight blocks from Watkinson's store. Lee was suffering from a gunshot wound to the left side of his chest. Lee and Watkinson were transported separately to a local hospital where they were placed in the same emergency room by medical personnel. Watkinson, on seeing Lee, exclaimed, "That's the man that shot me."

Lee told police that he had himself been the victim of a robbery by two males, who took his personal property and then shot him in the chest. After investigating Lee's story, the police determined it to be untrue and Lee was charged with four felony counts. The Commonwealth Attorney for the City of Richmond also filed a Motion to Compel Evidence in order to recover surgically the bullet in Lee's chest, an act Lee would not undergo voluntarily.

A series of hearings was held in Richmond Circuit Court on the motion, with Lee represented by counsel at each step. After hearing testimony from the arresting officer, a forensic scientist and the surgeon who would remove the bullet, the court ruled that the bullet could properly be removed. This ruling was based on findings that the bullet, believed to be only one-half centimeter below the skin, could be removed with the use of local anesthesia and with very little risk of harm or injury. 1

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The court stayed execution of its order to enable Lee to seek appellate review, which he did by way of petitions for writs of habeas corpus and prohibition in the Virginia Supreme Court. That court treated the petition solely as a request for a writ of prohibition and, after considering briefs and argument, upheld the position of the lower court. Lee then filed a petition for a writ of habeas corpus and a suit under 42 U.S.C. Sec. 1983 in federal district court in an attempt to enjoin the state from proceeding with the surgery.

The district court, agreeing that there was virtually no risk of harm to Lee under the circumstances as then presented, denied all relief on October 15, 1982. Preparations were made to remove the bullet at the Medical College of Virginia (MCV) hospital on October 18. The originally slated surgeon, who had testified at the initial state hearing, refused to perform the surgery against Lee's will. A second surgeon was designated, and he ordered the standard battery of pre-surgery tests. X-rays of Lee's chest demonstrated that the bullet was much deeper in the chest wall than initially thought; the bullet was now pinpointed at approximately 2.5 centimeters beneath the skin.

The new surgeon decided that the greater depth of the bullet required the use of general anesthesia in the surgery. Lee's counsel was informed of this, and was also informed that MCV personnel had done a work-up on Lee to determine his fitness to undergo general anesthesia. Lee filed a motion for rehearing in the Richmond Circuit Court on the same day (October 18) that he learned of the changed circumstances, claiming that surgery under the new circumstances would violate his fourth amendment rights.

On October 19, the state court (with a different judge presiding) agreed to hold a hearing on the motion on the morning of October 21. Lee's counsel unsuccessfully requested more time to prepare because of the complex and unfamiliar nature of the evidence relating to general anesthesia. When the hearing commenced on October 21, Lee unsuccessfully moved for a continuance on the ground that he had been unable to obtain an independent expert or develop expertise in anesthesiology in the short time allowed for preparation for the hearing. Lee repeated this same objection twice more during the hearing, to no avail.

The state court again ruled that the surgery could proceed, because there was no material change in circumstances, and Lee again proceeded to federal district court to seek relief in the form of a new trial. After detouring to the Virginia Supreme Court to exhaust state remedies by requesting a rehearing, which was apparently summarily denied, Lee was granted a new hearing by the federal court and given almost two weeks to prepare. At the ensuing hearing in federal court Lee did not present an anesthesiologist, but he did put on a general surgeon who testified about the proposed surgery and the medical risks involved. At this hearing Lee was represented by new counsel, retained in the interval, who was familiar with the areas of medical malpractice and anesthesiology. The state declined to present any further evidence to the federal court.

The district court concluded that surgery under the new circumstances, especially the use of general anesthesia and the necessarily greater intrusion into Lee's body, would constitute an unreasonable search within the meaning of the fourth amendment. The court enjoined the state from taking any steps to recover the bullet involuntarily and issued a writ of habeas corpus of limited scope. The Commonwealth then took this appeal.


Before addressing the merits of Lee's fourth amendment claim, we are faced with the threshold issue of whether the claim should be considered cognizable solely under one or the other of 42 U.S.C. Sec. 1983 and the habeas statute, 28 U.S.C. Sec. 2254, or whether it might properly be cognizable under both. Lee sought relief under both on the basis of the same factual claim, and the district court granted relief under both with

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different remedies deemed appropriate to the two.

Because of their differing and, in critical respects, conflicting procedural and doctrinal regimes, we decline to treat Lee's claim as one potentially entitling him to relief under both theories. We view Lee's claim as being most directly one seeking to enjoin persons acting under color of state law from depriving a citizen of the United States of a right secured by the Constitution, a claim properly treated as one grounded exclusively in Sec. 1983. We do not consider it properly cognizable in the alternative or in parallel under the habeas statute, 28 U.S.C. Sec. 2254. Because the question is concededly one not free of doubt and because its resolution might control decision here, we pause to give our reason.

Although there may ultimately be an area of limited substantive overlap between Sec. 2254 habeas corpus and Sec. 1983, 2 the main thrusts of the two are obviously quite different. The former is primarily a vehicle for attack by a confined person on the legality of his custody and the traditional remedial scope of the writ has been to secure absolute release--either immediate or conditional--from that custody. See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973). Conversely, Sec. 1983 cannot be used to seek release from illegal physical confinement, id. at 475, 93 S.Ct. at 1827; see also Hamlin v. Warren, 664 F.2d 29 (4th Cir.1981) (claim under Sec. 1983 for monetary relief for constitutional violation not cognizable without exhaustion as required by Sec. 2254 if favorable judgment would necessarily serve as binding predicate for habeas release). The remedial scope of Sec. 1983 is obviously much broader than is that of habeas corpus, being available to all citizens and other persons within the jurisdiction of the United...

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