Booker v. Lapaglia, 071315 FED6, 14-6113

Docket Nº:14-6113
Opinion Judge:MCKEAGUE, CIRCUIT JUDGE.
Party Name:FELIX CHARLES BOOKER, Plaintiff-Appellee, v. MICHAEL LAPAGLIA, et al., Defendants, JERRY SHELTON, Defendant-Appellant.
Judge Panel:BEFORE: GUY, MOORE, and McKEAGUE, Circuit Judges. KAREN NELSON MOORE, Circuit Judge, dissenting.
Case Date:July 13, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

FELIX CHARLES BOOKER, Plaintiff-Appellee,

v.

MICHAEL LAPAGLIA, et al., Defendants,

JERRY SHELTON, Defendant-Appellant.

No. 14-6113

United States Court of Appeals, Sixth Circuit

July 13, 2015

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: GUY, MOORE, and McKEAGUE, Circuit Judges.

OPINION

MCKEAGUE, CIRCUIT JUDGE.

After pulling over Felix Charles Booker, police officers developed suspicions that Booker had narcotics lodged in his rectum. The officers transported him to the Anderson County Detention Facility, where they met Deputy Jerry Shelton, and then on to Methodist Medical Center. At the hospital, Dr. Michael LaPaglia performed a series of increasingly intrusive medical procedures in search of narcotics. The final search, which fruited a rock of cocaine, involved administering a combination of paralytic and sedative drugs and inserting a breathing tube.

Booker filed this lawsuit pursuant to 42 U.S.C. § 1983, alleging, among other claims, that Shelton violated the Fourth Amendment. Shelton believes he is entitled to qualified immunity and appeals the district court's denial thereof. Because we conclude that the district court did not conduct an individualized inquiry as to Shelton's role in the search, we VACATE the district court's denial of qualified immunity and REMAND with instructions for the district court to conduct an individualized inquiry as to Shelton's role in the search.

I.

The facts of this case are familiar as we do not consider this appeal with a clean slate. See United States v. Booker, 728 F.3d 535 (6th Cir. 2013) ("Booker I"). On the morning of February 12, 2010, Oak Ridge Police Officer Steakley pulled over a car. Booker was sitting in the passenger seat. During the stop, Steakley developed a suspicion that Booker was "attempting to conceal something" because of the way he was "moving around." Id. at 537. Upon the driver's consent to a search of the car, and drug dog Argo's positive alerts for drugs, Steakley discovered on the passenger floorboard small plastic bags with a white residue and something that looked like crushed marijuana. At that point, Steakley arrested Booker for possession of marijuana and placed him in the cruiser of another officer, Officer Lewis Ridenour.

Eventually, Booker was transported to the Anderson County Detention Facility. Upon arrival, Shelton, the Detention Facility officer on staff, performed a strip search because of suspicions that Booker had contraband hidden somewhere on or in his body. With no success, Shelton contacted his supervisor and the district attorney to decide how to proceed. Both told Shelton to take Booker to the hospital for further inspection. Neither Shelton nor any other officer sought or obtained a warrant to search Booker's body.

At the hospital, LaPaglia performed three rectal searches. LaPaglia's initial digital rectal search was not successful; Booker contracted his rectal muscles so that LaPaglia could not enter. LaPaglia then ordered a nurse to inject Booker with ten milligrams of Midazolam, a sedative and muscle relaxant, in order to conduct a second digital rectal examination. This time, LaPaglia felt a foreign object, but LaPaglia could not remove it because Booker again contracted his rectal muscles. Finally, LaPaglia administered a combination of 20 milligrams of Etomidate, a sedative, and 125 milligrams of Succinylcholine, a paralytic agent. He inserted a breathing tube to keep Booker breathing. This search was successful and LaPaglia removed a white object from Booker's rectum.

A federal grand jury indicted Booker for one count of possession with intent to deliver more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). Booker filed a motion to suppress the crack cocaine on the basis that the rectal searches violated the Fourth Amendment. Shelton testified for the government. The district court refused to suppress the evidence, and the case proceeded to trial. On February 2, 2011, a jury convicted Booker of the charge, and Booker appealed his conviction.

While the criminal case was pending, Booker filed a civil action in the Circuit Court for Anderson County, Tennessee, alleging various claims against Shelton, Steakley, and the others involved in the incidents, including claims for constitutional violations pursuant to 42 U.S.C. § 1983. The defendants removed the case to federal court pursuant to 28 U.S.C. §§ 1441, 1443. Before the conclusion of Booker's criminal case, the various defendants filed motions for summary judgment and motions to dismiss. Because the viability of many of Booker's civil-rights claims depended on the outcome of his criminal appeal in this court under Heck v. Humphrey, 512 U.S. 477 (1994), the district court stayed action on those claims while dismissing other claims.

Booker's appeal of his conviction was successful. On August 26, 2013, we reversed, holding that LaPaglia acted at the behest of law enforcement, thereby making his action state action, and that the search "shocked the conscience" and was "'unreasonable' for the purposes of the Fourth Amendment." Booker I, 728 F.3d at 540, 542, 546. We accordingly held that the exclusionary rule was the proper remedy. The government did not retry Booker and dismissed the indictment.

On September 6, 2013, the district court dissolved the stay and ordered the parties to file dispositive motions without the benefit of discovery. Shelton and Steakley moved for summary judgment, arguing that they did not violate Booker's constitutional rights and were entitled to qualified immunity. The district court held that neither Steakley nor Shelton were entitled to qualified immunity. In a few short sentences, the district court addressed both defendants' qualified immunity arguments and concluded that there were material facts in dispute, that a reasonable jury could find that Shelton's actions violated Booker's Fourth Amendment rights, and that the right to be free from this body-cavity search was clearly established. Shelton filed this timely interlocutory appeal to contest the denial of qualified immunity with respect to his involvement with the rectal searches.

II.

A denial of qualified immunity "is an appealable 'final decision' within the meaning of 28 U.S.C. § 1291" "to the extent that it turns on an issue of law." Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Jurisdiction is not proper when the interlocutory appeal "solely contest[s] the plaintiff's account of the facts." Family Serv. Ass'n ex rel. Coil v. Wells Twp., 783 F.3d 600, 607 (6th Cir. 2015) (citing Johnson v. Jones, 515 U.S. 304, 319–20 (1995)). To secure review of an appellate order denying qualified immunity, an officer "must be willing to concede the most favorable view of the facts to the plaintiff for the purposes of appeal." Younes v. Pellerito, 739 F.3d 885, 888 (6th Cir. 2014) (internal quotation marks and citation omitted). The only exception to this rule is when the evidence "utterly discredits" the plaintiff's version of events. Id. at 889 (alteration omitted) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)). Here, Shelton's appeal does not "solely contest" Booker's "account of the facts." See Family Serv. Ass'n, 783 F.3d at 607. Rather, Shelton contends that on the undisputed facts, he did not violate Booker's Fourth Amendment rights and even if he did, the law was not clearly established at the time of the search.

Qualified immunity protects Shelton from this lawsuit unless Booker can show that Shelton violated his constitutional rights and those rights were clearly established at the time of the violation. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Family Serv. Ass'n, 783 F.3d at 604. On appeal, we view the facts in the light most favorable to Booker and Shelton is entitled to summary judgment if no reasonable jury could find in Booker's favor. Fed.R.Civ.P. 56(a); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). We review de novo the denial of a motion for summary judgment based on qualified immunity. Martin v. City of Broadview Heights, 712 F.3d 951, 957 (6th Cir. 2013).

Shelton challenges the district court's ruling on three bases. First, he contends that he did not violate the Fourth Amendment because LaPaglia conducted the rectal searches, and LaPaglia was not a state actor. Second, Shelton argues that the search did not violate the Fourth Amendment because the search was reasonably related to the penological goal of preventing contraband from entering the Anderson County Detention Facility. Third, he asserts that, even if the rectal searches violated Booker's Fourth Amendment rights, the contours of the right were not clearly established on February 12, 2010.

A.

Shelton's first argument-that he is entitled to qualified immunity because LaPaglia was not a state actor-is foreclosed by Booker I. In that case, we held:

LaPaglia must be treated as a government agent for Fourth Amendment purposes because the suspect was in the physical control of the police, the police knew what LaPaglia was going to do, the police knew that Booker did not consent, and a reasonable police officer would know that the doctor did not, independent of police direction, have the legal authority to intubate and paralyze the suspect without his consent.

Booker I, 728 F.3d at 541. We are bound by our prior published opinions unless the Supreme Court has intervened or we overrule the opinion en banc. 6 Cir. R. 32.1(b) ("Published panel opinions are binding on later panels. A published opinion is overruled only by the court en banc."); see also Nat'l Union Fire Ins. Co. v. VP Bldgs., Inc., 606 F.3d 835, 839–40 (6th Cir. 2010) (declining to consider arguments controlled by prior published opinions). Thus, Shelton's argument is unavailing; LaPaglia was a state actor, and we are left only with...

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