Leiser v. Moore

• Citation: 903 F.3d 1137
• Decision Date: 06 September 2018
• Docket Number: No. 17-3206,17-3206
• Parties: Joseph W. LEISER, Plaintiff - Appellant, v. Shannon MOORE; Randy Rogers, Defendants - Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

903 F.3d 1137

Joseph W. LEISER, Plaintiff - Appellant,

v.Shannon MOORE; Randy Rogers, Defendants - Appellees.

No. 17-3206

United States Court of Appeals, Tenth Circuit.

September 6, 2018

Emily J. Heltzel, William & Mary Appellate and Supreme Court Clinic, Williamsburg, Virginia (Patricia E. Roberts, and Nancy C. Iheanacho, William and Mary Appellate and Supreme Court Clinic, Williamsburg, Virginia, and Tillman J. Breckenridge, Bailey & Glasser LLP, Washington, D.C. with her on the briefs), for Plaintiff-Appellant.

Terelle A. Mock (Andrew D. Holder, with her on the brief), Fisher, Patterson, Sayler & Smith, L.L.P., Topeka, Kansas

Before LUCERO, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

This appeal presents the question whether clearly established law supports the claim of Plaintiff Joseph Leiser that two jail officials in Coffey County, Kansas, violated his constitutional rights by disclosing medical information about him that they had properly obtained. While Plaintiff was incarcerated in an Illinois jail awaiting extradition to Coffey County, the administrator of the Coffey County Jail, Defendant Shannon Moore, requested that the Illinois jail arrange for multiple medical examinations of Plaintiff, including a chest x-ray

and a CT scan of his brain, to determine whether he had suffered serious injuries after being tasered by United States marshals. When Moore inquired about the results of the tests, she was told that they showed bone lesions and possible cancer. Upon receiving this information, Moore and Defendant Randy Rogers, the Coffey County Sheriff, conveyed it to the Coffey County Hospital and to Plaintiff’s family and friends, without first obtaining permission from Plaintiff.

Upon learning of these disclosures, Plaintiff sued Moore and Rogers in state court on various grounds under state and federal law, including alleged violations of his constitutional rights. Defendants removed the case to the United States District Court for the District of Kansas. The district court granted Defendants judgment on the pleadings on Plaintiff’s federal-law claims and declined to exercise supplemental jurisdiction on the state-law claims.

Plaintiff appeals only the dismissal of his claim under 42 U.S.C. § 1983 for violation of his constitutional right to privacy. He does not challenge Defendants’ acquisition of his medical information. And he does not press any argument about the disclosure to the hospital, focusing instead on the "disclosure of [Plaintiff]’s medical information to his family and friends," which allegedly was unconstitutional because it "could not have served a legitimate penological interest." Aplt. Br. at 21. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm because Defendants are entitled to qualified immunity.

I. DISCUSSION

"We review a district court’s grant of a motion for judgment on the pleadings de novo, using the same standard that applies to a Rule 12(b)(6) motion." Colony Ins. Co. v. Burke , 698 F.3d 1222, 1228 (10th Cir. 2012) (internal quotation marks omitted). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. We assume the factual allegations are true and ask whether it is plausible that the plaintiff is entitled to relief." Bixler v. Foster , 596 F.3d 751, 756 (10th Cir. 2010) (brackets, citation, and internal quotations marks omitted).¹

The district court ruled that Defendants are entitled to qualified immunity. The defense of qualified immunity "shields public officials from damages actions unless their conduct was unreasonable in light of clearly established law." Estate of Booker v.Gomez , 745 F.3d 405, 411 (10th Cir. 2014) (ellipsis and internal quotation marks omitted). "[W]hen a defendant asserts qualified immunity, the plaintiff carries a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s unlawful conduct." Id. (internal quotation marks omitted).

We express no view on whether Plaintiff’s constitutional rights were violated. We can resolve this appeal by considering only the clearly-established prong of the qualified-immunity defense. See Bowling v. Rector , 584 F.3d 956, 964 (10th Cir. 2009) ("We may, at our discretion, consider the two parts of this test in the sequence we deem best in light of the circumstances in the particular case at hand." (internal quotation marks omitted) ). Ordinarily, to establish that a proposition of law is clearly established in this circuit, the plaintiff must rely on an on-point precedent of this court or the Supreme Court or a clear consensus of a significant number of fellow circuit courts. See T.D. v. Patton , 868 F.3d 1209, 1220 (10th Cir. 2017) (can "show clearly established law by pointing to either a Supreme Court or Tenth Circuit decision ..."); Stewart v. Beach , 701 F.3d 1322, 1332 (10th Cir. 2012) ("In the absence of controlling authority, we may conclude that a constitutional right is clearly established if there is a robust consensus of cases of persuasive authority." (internal quotation marks omitted)). " ‘[C]learly established law’ should not be defined at a high level of generality. As [the Supreme] Court explained decades ago, the clearly established law must be particularized to the facts of the case. Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." White v. Pauly , ––– U.S. ––––, 137 S.Ct. 548, 552, 196 L.Ed.2d 463 (2017) (citations, ellipsis, original brackets, and further internal quotation marks omitted). Thus, while a plaintiff does not have to cite a "case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate ." Id. at 551 (emphasis added) (internal quotation marks omitted).

Plaintiff claims a violation of his constitutional right of privacy. To put this claim in context, it is worth repeating a statement of Professor Kurland quoted by the Supreme Court some 40 years ago in an opinion that appeared to recognize the sort of privacy interest claimed in this case. The statement distinguishes three facets of a right to privacy:

The concept of a constitutional right of privacy still remains largely undefined. There are at least three facets that have been partially revealed, but their form and shape remain to be fully ascertained. The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government . The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

Whalen v. Roe , 429 U.S. 589, 599 n.24, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (emphasis added) (quoting Philip B. Kurland, The Private I: Some Reflections on Privacy and the Constitution , Univ. of Chi. Mag., Autumn 1976, at 7, 8). The first facet is the province of the Fourth Amendment. See id. The third is exemplified by freedom of exercise of religion and the abortion-rights cases. This case concerns the scope of the right not to have one’s private affairs made public by the government, sometimes referred to as a right to informational privacy.

In two published opinions this circuit has held that government disclosure of an individual’s personal medical information violated the Constitution. In A.L.A. v. West Valley City , 26 F.3d 989, 990 (10th Cir. 1994), an officer conducting a search incident to arrest discovered a paper stating that the plaintiff was HIV positive (which later proved to be an incorrect diagnosis). The officer informed a number of people, including the plaintiff’s relatives and acquaintances, of his discovery. We said that "[t]here is no dispute that confidential medical information is entitled to constitutional privacy protection," and that the inaccuracy of the report was "entirely irrelevant" to the constitutional issue. Id.

A few years later, in Herring v. Keenan , 218 F.3d 1171, 1173 (10th Cir. 2000), a probationer told his supervising officer that he thought he was HIV positive. The officer told the probationer’s employer and demanded that he be fired; he also told the probationer’s sister. See id. We said that "[t]his circuit ... has repeatedly interpreted the Supreme Court’s decision in Whalen ... as creating a right to privacy in the non-disclosure of personal information." Id. at 1175. And we described A.L.A. as "the first case in this circuit that recognized that there is a constitutional right to privacy regarding disclosure by a police officer of the results of an arrestee’s HIV test." Id. We concluded that the probationer had correctly "alleged a violation of a constitutional right to privacy in the non-disclosure of information regarding one’s HIV status by a government official." Id.²

Plaintiff quite reasonably argues that these two precedents from our circuit, as well as a few similar decisions by other circuits, clearly establish the law supporting his constitutional claim in this case. But we are not persuaded.

One reason is that there are factual differences between the precedential cases and the one before us. When our precedents were decided, the stigma of HIV was enormous. The plaintiff in A.L.A ., for example, said that the (inaccurate) disclosure that he was HIV positive caused family and friends to shun him and refuse to visit him in jail and that fellow prisoners and guards harassed him. See 26 F.3d at 990. A diagnosis of cancer

is not nearly as opprobrious as a diagnosis of HIV was then. A further distinction is that the disclosure in this case had a plausible positive purpose—to encourage the support of family and friends—as opposed to the...