Douglas v. Dobbs

• Citation: 419 F.3d 1097
• Decision Date: 16 August 2005
• Docket Number: No. 04-2118.,04-2118.
• Parties: Chez DOUGLAS, Plaintiff-Appellant, v. Pamela DOBBS, Scott Key, and District Attorney's Office for the Twelfth Judicial District, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

419 F.3d 1097

Chez DOUGLAS, Plaintiff-Appellant, v. Pamela DOBBS, Scott Key, and District Attorney's Office for the Twelfth Judicial District, Defendant-Appellee.

No. 04-2118.

United States Court of Appeals, Tenth Circuit.

August 16, 2005.

COPYRIGHT MATERIAL OMITTED

Thomas L. Murphy, Rosenfelt, Buffington & Borg, P.A., Gallup, NM, for Plaintiff-Appellant.

Barbara A. Patterson, Atwood, Malone, Turner & Sabin, P.A., Roswell, NM, for Defendant-Appellee.

Before LUCERO and TYMKOVICH, Circuit Judges, and BLACKBURN,^* District Judges.

LUCERO, Circuit Judge.

Chez Douglas brings this 42 U.S.C. § 1983 action alleging that her right to privacy was violated by a police search of her pharmacy prescription records executed pursuant to a court order. The district court granted summary judgment for defendants, finding that Douglas's right to privacy had not been violated, and that defendants were entitled to qualified immunity. On appeal we must decide whether Douglas has a right to privacy in her prescription drug records, and if so, whether that right was violated by the role of the Assistant District Attorney ("ADA") in the search. We conclude that persons have a right to privacy in their prescription drug records. Because we also conclude that Douglas has failed to demonstrate that the ADA violated a clearly established constitutional right, we agree with the district court that the remaining defendant before us is entitled to qualified immunity. Accordingly, we AFFIRM.

I

Chez Douglas (a.k.a. Renee Haynes), the plaintiff below, sued, inter alia, the Village of Ruidoso, Sergeant Randy Spear, and ADA Pamela Dobbs and District Attorney ("DA") Scott Key under 42 U.S.C. § 1983 for violating her civil rights when they authorized and conducted a search of her pharmacy prescription records.¹ Sergeant Spear learned from Douglas's physician, Dr. Christopher Robinson, who had prescribed pain medication to Douglas, that he suspected Douglas of abusing prescription medication by forging prescriptions and by running through her prescriptions too quickly. Dr. Robinson also stated that he believed Douglas was obtaining additional prescriptions using a different name — Haynes — to procure those prescriptions from another physician in Roswell. After Dr. Robinson provided Sergeant Spear with contact information for Douglas, Sergeant Spear prepared a "Motion and Order to Produce Prescription Information" for the purpose of acquiring Douglas's prescription records from a local pharmacy. Before presenting the motion to a judge for authorization to conduct the search, Sergeant Spear consulted with ADA Dobbs. The complaint alleges that Dobbs "approved the form of the Motion and Order" which was then submitted to a magistrate. A judge granted the motion, and pursuant to that authorization, Sergeant Spear obtained Douglas's prescription records from a local pharmacy. Subsequent to the search, charges against Douglas for fraudulently altering the dosage amount and quantity of pills in a prescription were filed, but were later dismissed. Douglas then initiated this suit.

Douglas argues that ADA Dobbs violated her privacy and Fourth Amendment rights by authorizing Sergeant Spear's submission of the Motion and proposed Order to the magistrate judge for approval to search her prescription records. Before the district court, Douglas also alleged that DA Key violated her rights in his supervisory role. All other defendants to this suit settled and ADA Dobbs and DA Key moved for summary judgment. The district court found that no clearly established Fourth Amendment right had been violated by ADA Dobbs in the search of Douglas's prescription records and that qualified immunity applied. Additionally, the district court found that DA Key could not properly be held liable under Douglas's municipal liability claim.² Douglas now appeals the grant of summary judgment against the remaining defendant, ADA Dobbs, arguing that she had a right of privacy in her confidential prescription records which Dobbs violated by authorizing the submission of the Motion and proposed Order to the magistrate judge to obtain approval to search Douglas's prescription records.

II

We review the district court's ruling that ADA Dobbs is entitled to qualified immunity de novo. Farmer v. Perrill, 288 F.3d 1254, 1259 (10th Cir.2002). Under the doctrine of qualified immunity, "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). When a defendant raises a claim of qualified immunity, the burden shifts to the plaintiff to show that the defendant is not entitled to that immunity. Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir.2001); see also, Scott v. Hern, 216 F.3d 897, 908-09 (10th Cir.2000) (stating that state attorneys receive qualified immunity for actions that are primarily investigative or administrative).

In order to determine whether a government official is entitled to the protection of qualified immunity, a court must ordinarily conduct a two-part inquiry. First, we ask whether the facts alleged, viewed in the light most favorable to the party asserting injury, show the official's conduct violated a constitutional right. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Second a court must ask "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier, 533 U.S. at 202, 121 S.Ct. 2151. We have also established a third inquiry that applies when "extraordinary circumstances" prevent officials from knowing that their conduct violates a clearly established constitutional right. Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1251 (10th Cir.2003).

A clearly established right is one whose contours "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, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Because knowledge that an action violates a clearly established statutory or constitutional right is required, the "essential inquiry is: would an objectively reasonable official have known that his conduct was unlawful?" Lawrence v. Reed, 406 F.3d 1224, 1230 (10th Cir.2005). Warning against rights asserted at too high a level of generality, the Supreme Court has made clear that the relevant inquiry must be undertaken in the specific context of the case. Brosseau v. Haugen, ___ U.S. ___, ___, 125 S.Ct. 596, 599, 160 L.Ed.2d 583 (2004). A plaintiff may not simply allege a Fourth Amendment violation in the abstract, but must demonstrate through relevant prior cases that a defendant's actions in a "more particularized sense" constitute a violation of a constitutional right. Id. at 599-600. "If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation." Id. at 599.

A

With regard to the threshold issue of whether ADA Dobbs' conduct violated a constitutional right, we must first determine whether Douglas has a constitutional right to privacy in her pharmacy prescription records. Our jurisprudence has made clear that "[t]here is a constitutional right to privacy in preventing disclosure by the government of personal matters." F.E.R. v. Valdez, 58 F.3d 1530, 1535 (10th Cir.1995). In so deciding, we have interpreted the Supreme Court's decision in Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), as creating a right to privacy in certain personal information. See Herring v. Keenan, 218 F.3d 1171, 1173 (10th Cir.2000) ("This circuit, however, has repeatedly interpreted the Supreme Court's decision in Whalen v. Roe ... as creating a right to privacy in the non-disclosure of personal information."). In Whalen, the Court considered whether the State of New York violated plaintiffs' liberty under the Fourteenth Amendment by collecting information about all prescriptions written for scheduled controlled substances. Although the Court held that New York's scheme did not violate a protected privacy interest, the Court noted that its cases protecting privacy have involved at least two related kinds of interests: "One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions." Whalen, 429 U.S. at 599-600, 97 S.Ct. 869. Because Douglas complains that her Fourth Amendment rights were violated by the disclosure of her pharmacy records, we are primarily concerned in the present case with the interest in avoiding disclosure of personal matters.

The scope of personal matters protected by a right to privacy has never been fully defined. Supreme Court decisions "make it clear that the right has some extension to activities relating to marriage, procreation, contraception, family relationships and child rearing and education." Roe v. Wade, 410 U.S. 113, 152-153, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (quotations and citations omitted); see also, Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Because privacy regarding matters of health is closely intertwined with the activities afforded protection by the Supreme Court, we have held that "there is a constitutional right to privacy that protects an individual from the disclosure of information concerning a person's health." Herring, 218 F.3d at 1173. We have previously applied this right in the context of an employer's search of an employee's medical records, Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir.1994), and in the context of a government official's disclosure of a person's HIV status. A.L.A. v. West...