     Case: 10-40835   Document: 00511746639   Page: 1   Date Filed: 02/03/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                               February 3, 2012

                                 No. 10-40835                    Lyle W. Cayce
                                                                      Clerk

CARRIE RAHAT SAMA,

                                          Plaintiff–Appellant,
v.

DOCTOR EDWARD HANNIGAN; DOCTOR LANNETTE LINTHIGUM;
WILSON DEE, Director Texas Correctional Officer on Offenders Medical
Condition; DOCTOR UVALDE; DOCTOR SNYDER; DOCTOR BENOIT;
DOCTOR DEN; DOCTOR MIDDLETON,

                                          Defendants–Appellees.



                 Appeals from the United States District Court
                      for the Southern District of Texas


Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
        Carrie Rahat Sama, who was incarcerated in the custody of the Texas
Department of Criminal Justice–Correctional Institutions Division (TDCJ–CID),
sought damages under 48 U.S.C. § 1983. She asserted that her constitutional
rights were violated when her ovary and lymph nodes were removed without her
consent during a radical hysterectomy. The district court granted summary
judgment in favor of the physicians who performed the surgery, holding they
were entitled to qualified immunity. The district court also denied Sama’s
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                                   No. 10-40835

motion to recuse, submitted to the court after she filed her notice of appeal. We
affirm the district court’s judgment.
                                        I
      Sama (TDCJ # 1362948) was incarcerated in the TDCJ–CID at the Lane
Murray Unit in Gatesville when she was diagnosed with a form of cervical
cancer known as endocervical adenocarcinoma in situ, CIN III (Cervical
Intraepithelial Neoplasia), a malignant condition that is thought not to have
spread beyond the most superficial layer of the cells in the cervix. She was
referred to the Benign GYN Service at the University of Texas Medical Branch
(UTMB) and underwent a cervical conization, a surgical procedure, which
revealed a more extensive cancer than had initially been suspected.              In
discussing the treatment plan with UTMB physicians, Sama, who was then
thirty-six years of age, provided her medical history. The notes of her medical
history indicate that she told UTMB personnel that she had previously had
biological children through a surrogate and that she did not want her left ovary
removed if a hysterectomy was warranted.          She desired to preserve the
possibility of conceiving again.
      Sama was referred to the GYN Tumor Service, at which time Dr. Edward
Hannigan, the Gynecologic Oncology Fellowship Program Director for the
Department of Obstetrics & Gynecology at UTMB, became involved in her case.
A resident physician under Dr. Hannigan’s supervision evaluated Sama, and the
assessment was malignant neoplasm of the endocervix. It is undisputed that the
appropriate treatment for her malignant tumor was a radical hysterectomy.
      During a pre-operative consultation, a resident physician and the
attending faculty physician discussed with Sama the planned procedure, risks,
and benefits. Lymph node dissection, which is part of the treatment of cervical
cancer and is necessary for pathological evaluation, was included in the
treatment plan.     During the consultation, Sama recounted that she had

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                                  No. 10-40835

previously had eight abdominal surgeries for lysis of adhesions, which is the
removal of scarring, and two years earlier, her right ovary had been removed.
She also reiterated her desire to conserve her remaining ovary for future
fertility. The physicians agreed they would attempt to do so, but according to
the outpatient clinic note, Sama “underst[ood] that if [the ovary] is grossly
abnormal” or “if anatomic constraints limit[] the ability to save her ovary,” it
would be removed.
      On the date of the surgery, prior to the operation, Sama was further
counseled by Dr. Michelle Benoit and another physician. The pre-operative
notes again indicate that Sama expressed understanding that the likelihood of
preserving the ovary was low. Benoit and Hannigan also stated in their
affidavits that it was fully discussed with, and understood by, Sama that
preservation of the ovary would be an intra-operative decision based on findings
during surgery.
      Sama does not dispute that she consented to a radical hysterectomy. She
maintains, however, in a declaration submitted in support of her summary
judgment response, that she made it clear “with each and every one of the team
of [physicians]” that she would not consent to the removal of her ovary.
      Sama signed a consent form authorizing the following procedures: “Radical
hysterectomy and any other indicated procedures, lymph node dissection.” Sama
also initialed Item 7 on a List of Risks incorporated into the form, which provides
in pertinent part: “I (we) understand that a hysterectomy is a removal of the
uterus through an incision in the lower abdomen or vagina. I also understand
that additional surgery may be necessary to remove or [re]pair other organs,
including an ovary, tube, appendix, bladder, [re]ctum, vagina or ureter.” Items
7A and 8 were marked (presumably as relevant to Sama’s surgery), but were not
initialed by Sama. Those items advised of additional risks, including sterility
associated with a total abdominal hysterectomy and with fallopian tube and

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                                  No. 10-40835

ovarian surgery. According to Sama, she refused to initial these items because
she “would not sign any permits that allowed the removal of my ovary.” The
procedures to be performed were handwritten on blank lines in the form, and
Sama contends they were added to the form after she signed it.
      Benoit, a resident surgeon, performed the surgery, and Hannigan was
present throughout the procedure as the attending faculty physician. The
surgery was difficult and lengthy because of “significant and dense adhesions”
from Sama’s prior surgeries. The physicians observed that the left ovary was
grossly abnormal with multiple cysts, and it had adhered to surrounding
structures in Sama’s abdominal cavity. The surgeons were concerned with the
risk of malignancy in the abnormal-appearing ovary and also determined that
removal of the ovary was necessary “to get to the lymph node basin and perform
the parametrectomy (radical portion of the hysterectomy).”           Benoit and
Hannigan concluded that the ovary was non-functional and that its removal was
medically necessary and in Sama’s best, long-term interest. The ovary was
removed.
      The surgical pathology report revealed no evidence of persistent local
disease or metastatic cancer. The report did reflect an abnormality of the left
ovary—hemorrhagic corpus luteum—and although Hannigan could not “state
conclusively that Ms. Sama’s ovary did not remain hormonally active, with the
ability to produce eggs,” he could state, “with reasonable medical certainty, that
because of the dense fibrosis and adhesions, it is very unlikely that any egg
harvesting could ever be performed.”
      During a second follow-up appointment four months after the surgery,
Sama complained for the first time of leg weakness that had persisted since the
surgery. She claims this condition was caused by the removal of the lymph
nodes during surgery. Hannigan stated that any transient nerve damage
resulting from the procedure would have been apparent immediately, and none

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                                      No. 10-40835

was noted. In addition, the treating physician at the follow-up appointment
concluded the symptoms likely were not related to any operative or post-
operative causes. Sama stated in her declaration that a physician has since told
her the neuropathy was likely due to removal of her lymph nodes. She has
presented no other evidence of causation, such as an affidavit or report from a
medical professional.
       Sama sued Benoit, Hannigan, and several other physicians and officials
under 42 U.S.C. §§ 1983 and 1985 for violating, and conspiring to violate, her
constitutional rights under the Eighth and Fourteenth Amendments. She
alleged the removal of her ovary without her consent violated her right to refuse
unwanted medical treatment and that the defendants were deliberately
indifferent to her serious medical needs. The district court granted Benoit and
Hannigan’s motion for summary judgment and dismissed the case with
prejudice, holding Sama had failed to rebut the physicians’ assertion of qualified
immunity by showing the existence of a disputed fact issue material to
determining whether the physicians were deliberately indifferent under the
Eighth Amendment. The district court did not address Sama’s claim of a
separate Fourteenth Amendment violation involving her right to refuse
unwanted medical treatment.
                                             II
       As an initial matter, we note that, in addition to Benoit and Hannigan,
Sama named six other defendants in her complaint. As part of its screening of
the case under 28 U.S.C. § 1915A, the district court did not order that these six
defendants be served with process or respond to the complaint.1 Thus, the



       1
          In re Jacobs, 213 F.3d 289, 290 (5th Cir. 2000) (“We have long recognized the
authority of the district courts to ascertain the potential frivolousness of IFP suits before
directing service of process, and this authority has been codified by the PLRA.” (internal
citation omitted)).

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                                            No. 10-40835

district court implicitly held that no cognizable claims existed against these
defendants.2 In her brief on appeal, Sama names these other defendants as
parties and appears to assume that they continue to be a part of this action.
However, Sama has neither raised nor argued any issue on appeal regarding the
propriety of the district court’s § 1915A order as to these defendants and
accordingly has waived any such issue.3
                                                  III
          Sama contends the district judge should have recused himself from this
case because he “has a known bias on women[’]s issues.” Sama first raised this
issue in one of two post-judgment motions filed in the district court after she
appealed the judgment. The district court determined that it lacked jurisdiction
to rule on the motions and held that, to the extent it had jurisdiction over Sama’s
recusal motion, it was untimely and without merit. Sama did not file a separate
notice of appeal from that order, and we accordingly lack jurisdiction to review
it.4
                                                  IV
          We may dispose of two of Sama’s claims on waiver grounds. In her
complaint, she alleged that Benoit’s and Hannigan’s conduct violated her equal
protection rights under the Fifth and Fourteenth Amendments. However, she
failed to present any argument or authority in support of this claim on appeal.
Accordingly, the issue is waived.5




          2
              See 28 U.S.C. § 1915A(b).
         3
              Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
          4
              Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996).
          5
         United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long been the
rule in this circuit that any issues not briefed on appeal are waived.”).

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                                         No. 10-40835

       Sama also argues on appeal that, as a result of the surgery, she is now
disabled as that term is defined in the Americans with Disabilities Act (ADA).6
Sama did not assert an ADA claim in the district court and may not do so for the
first time on appeal.7 Accordingly, the claim will not be considered.
                                                V
       Sama contends that the district court erred in failing to hold a hearing on
the motion for summary judgment. District courts are not required to hold an
oral hearing on a summary judgment motion,8 and in any event, there is no
indication in the record that Sama requested one.
       Sama also complains that dismissal was too severe a sanction and that a
less restrictive measure would have been proper. However, the district court did
not dismiss the case as a sanction. The district court dismissed the case because
of its determination that the defendants were entitled to qualified immunity
based on the summary judgment evidence presented.
                                               VI
       With regard to Sama’s claim that Benoit and Hannigan violated her
Eighth Amendment right to receive adequate medical care, the district court
held that Sama failed to show the existence of a disputed material fact issue as
to whether Benoit and Hannigan were deliberately indifferent to her serious
medical needs and therefore failed to rebut their affirmative defense of qualified
immunity. We agree.
       “A prison official violates the Eighth Amendment’s prohibition against
cruel and unusual punishment when his conduct demonstrates deliberate



       6
           42 U.S.C. § 12102.
       7
           See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
       8
         Jackson v. Widnall, 99 F.3d 710, 713 (5th Cir. 1996) (analyzing prior version of FED.
R. CIV. P. 56).

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                                         No. 10-40835

indifference to a prisoner’s serious medical needs, constituting an ‘unnecessary
and wanton infliction of pain.’”9           We have held that unsuccessful medical
treatment and acts of negligence or medical malpractice do not constitute
deliberate indifference, nor does a prisoner’s disagreement with her medical
treatment, absent exceptional circumstances.10 Rather, a prison inmate can
demonstrate an Eighth Amendment violation by showing that “prison officials
‘refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a
wanton disregard for any serious medical needs.’”11
       Sama essentially contends the surgery was unnecessary, as the pathology
reports revealed that the removed ovary and lymph nodes were not cancerous,
and that she now suffers from continued leg weakness resulting from the
removal of her lymph nodes. At best, this constitutes a disagreement with her
treatment and a claim of medical malpractice. It is undisputed that Sama was
timely examined, diagnosed, and treated. The physicians involved in Sama’s
care exercised their reasoned medical judgment and determined that surgery
was the appropriate course of treatment based on their examinations, the test
results, and Sama’s diagnosis. There is no evidence that Benoit and Hannigan
were deliberately indifferent to Sama’s serious medical needs, and they are
entitled to qualified immunity on Sama’s Eighth Amendment claim.
                                               VII
       Sama also asserts that Hannigan and Benoit violated her Fourteenth
Amendment rights by removing her ovary and lymph nodes without her consent.


       9
        Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006) (quoting Wilson v. Seiter, 501 U.S.
294, 297 (1991)).
       10
            Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006).
       11
          Id. (quoting Domino v. Tex. Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir.
2001)) (internal quotation marks omitted).

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                                        No. 10-40835

Unlike her Eighth Amendment claim of deliberate indifference to her serious
medical needs, this claim asserts a violation of substantive due process as
guaranteed by the Due Process Clause of the Fourteenth Amendment,12 under
which a competent person has a liberty interest in refusing unwanted medical
treatment.13 The Supreme Court explained in Cruzan v. Director, Missouri
Department of Health that determining “‘whether [Fourteenth Amendment]
rights have been violated must be determined by balancing [a claimant’s] liberty
interests against the relevant state interests.’”14
       Qualified immunity generally shields government officials performing
discretionary functions, such as the administration of medical care, “‘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.’”15 Once raised, the burden shifts to the plaintiff, who may rebut
entitlement to immunity by demonstrating that “the official’s allegedly wrongful
conduct violated clearly established law.”16


       12
        See Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (noting that the Due Process
Clause “provides heightened protection against government interference with certain
fundamental rights and liberty interests”).
       13
         Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990) (“The principle that a
competent person has a constitutionally protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions.”); Washington v. Harper, 494 U.S.
210, 221-22 (1990) (prisoners possess “a significant liberty interest in avoiding the unwanted
administration of antipsychotic drugs under the Due Process Clause of the Fourteenth
Amendment”); Thompson v. Upshur Cnty., Tex., 245 F.3d 447, 462 n.10 (5th Cir. 2001) (“There
is no question that a competent person has a liberty interest in refusing unwanted medical
treatment.” (internal quotation marks and ellipsis omitted)).
       14
            497 U.S. at 279 (quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)).
       15
         Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)); see also Hall v. Thomas, 190 F.3d 693, 696 (5th Cir. 1999) (noting that
the administration of medical care is a discretionary function).
       16
         Kovacic v. Villarreal, 628 F.3d 209, 211-12 (5th Cir. 2010) (internal quotation marks
omitted).

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                                        No. 10-40835

       For a right to be clearly established, “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is
doing violates that right.”17 “[P]re-existing law must dictate, that is, truly
compel (not just suggest or allow or raise a question about), the conclusion for
every like-situated, reasonable government agent that what [the] defendant is
doing violates federal law in the circumstances.”18
       In their motion for summary judgment, Hannigan and Benoit argued they
were entitled to qualified immunity from all of Sama’s claims.19 In her response
to the motion, Sama pointed to evidence (in the form of her declaration and the
partially initialed consent form) that she had refused to consent to the removal
of her ovary under any circumstances and argued, citing Cruzan, that the
defendants’ actions violated her “constitutionally protected liberty interest in
refusing unwanted medical treatment.”
       Exercising our discretion under Pearson v. Callahan, we may analyze and
resolve this issue under the “clearly established” prong of the qualified immunity
test.20 Because Sama did not meet her burden of demonstrating Benoit’s and
Hannigan’s conduct was not objectively reasonable in light of clearly established
law, the district court did not err in dismissing the case. Raising a fact issue as
to whether she consented to removal of her ovary did not suffice to meet her
burden regarding clearly established law.



       17
            Anderson v. Creighton, 483 U.S. 635, 640 (1987).
       18
         Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578-79 (5th Cir. 2009) (internal
quotation marks omitted).
       19
         Their motion for summary judgment asserted that “[t]he bifurcated test for qualified
immunity requires examination of (a) whether the plaintiff has alleged a violation of a clearly
established constitutional right; and (b) if so, whether the defendant’s conduct was objectively
unreasonable in the light of the clearly established law at the time of the incident.”
       20
            Pearson v. Callahan, 555 U.S. 223, 236 (2009); Pasco, 566 F.3d at 579.

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                                       No. 10-40835

       As noted above, in Cruzan, the Supreme Court addressed the scope of a
person’s liberty interest in refusing unwanted treatment. The Court explained,
“[D]etermining that a person has a ‘liberty interest’ under the Due Process
Clause [in refusing unwanted treatment] does not end the inquiry; ‘whether
respondent’s constitutional rights have been violated must be determined by
balancing his liberty interests against the relevant state interests.’”21 In the
prison context, such countervailing state interests include providing appropriate,
necessary medical treatment to inmates as well as prison safety and security.22
       Unlike her conclusional assertions about whether she consented to
removal of her lymph nodes,23 Sama declares that she affirmatively and
unequivocally told the physicians involved in her treatment that she would not
consent to removal of her ovary because she hoped to someday harvest her eggs,
and she refused to initial the portion of the consent form explaining risks
associated with ovarian surgery. We accept these assertions as true in our
review of the summary judgment, however, it is undisputed that Sama
consented to a radical hysterectomy after being advised that removal of the
ovary might be necessary if anatomical constraints limited the physicians’ ability
to leave the ovary in place and that this determination would have to be made
during the surgery. In spite of this knowledge, Sama did not withdraw her
consent to the radical hysterectomy. She proceeded. Her refusal to give express
consent to the removal of her ovary was not unequivocal. It was ambiguous in

       21
         Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 279 (1990) (footnote omitted)
(quoting Youngberg v. Romeo, 457 U.S. 307, 321 (1982)).
       22
         Washington v. Harper, 494 U.S. 210, 222, 236 (1990) (noting that the extent of a
prisoner’s rights in refusing unwanted treatment “must be defined in the context of the
inmate’s confinement” and upholding a state regulation permitting prison officials to forcibly
medicate a mentally ill prisoner “to reduce the danger that an inmate suffering from a serious
mental disorder represents to himself or others”).
       23
          Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 860 (5th Cir. 2004)
(conclusional allegations and unsubstantiated assertions do not create a fact issue).

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                                       No. 10-40835

light of her simultaneous consent to a radical hysterectomy with the attendant
uncertainties. Benoit’s affidavit states that during surgery it was determined
that the ovary had to be removed in order to reach and remove anatomic
structures necessary to the performance of the radical portion of the
hysterectomy. This is uncontroverted. We therefore are presented with a
situation in which an inmate-patient has consented to a procedure while
maintaining that she did not and would not consent to a necessary part of that
procedure.       Sama has not established that the completion of the radical
hysterectomy under such circumstances violated clearly established law. The
right to refuse medical treatment is not unqualified.24 The lines separating
when a state actor may and may not constitutionally administer unwanted
medical treatment are far from clear.
      We also note that, as a factual matter, her alleged nonconsent to the
removal of her ovary was qualified by her purpose for withholding consent,
which was to attempt to harvest eggs at some point in the future; it was not a
binary “yes” or “no.” When, during surgery, the physicians observed the scar
tissue, cysts, and abnormality of Sama’s ovary, they relied on their medical
judgment to conclude that the ovary was nonfunctional. The dissent focuses on
the fact that the pathology report found no malignancy in the ovary and that the
physicians could not state conclusively that the ovary could not have produced
eggs. But this overlooks the more salient fact that during the surgery the
physicians saw “dense fibrosis and adhesions” and determined that because of
these conditions, “it [was] very unlikely that any egg harvesting could ever be
performed.” Sama’s condition in this regard is undisputed, and the surgeon’s
medical judgment and conclusion about the feasibility of harvesting an egg in
the future is unchallenged. The physicians did nothing to foreclose Sama’s


      24
           See Harper, 494 U.S. at 221-23, 236.

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                                       No. 10-40835

ability to have a biological child: Sama’s pre-existing condition prevented her
from having a biological child. The reason that Sama gave for her desire to
retain her ovary no longer obtained. The physicians’ removal of Sama’s ovary
was arguably within her grant of consent in light of this circumstance. At the
least, this leaves the general principle that an inmate may refuse medical
treatment sufficiently uncertain in application to trigger qualified immunity.
       There is an additional overlay. The ovary’s continued presence in Sama’s
body was, in the physicians’ judgment, life-threatening. The affidavit of one of
the physicians states that the abnormal appearance of the ovary “raised the
possibility of metastic disease in the ovary, which could not be ruled out until the
final Pathology report was obtained.” This exercise of professional judgement
signified that, at that point, the physicians were not frustrating her consent.
Although her declaration in support of her response to the motion for summary
judgment states that she told the surgeons that she did not want her ovary
removed under any circumstance, such a statement was not the equivalent of
stating that she would rather die than have an ovary removed, as the dissenting
opinion suggests. She assented to a radical hysterectomy that she knew might
well entail removal of her ovary. She did not express any desire to allow cancer
to take its course and end her life.            To the contrary, based on what she
communicated to those treating her at the time, her lack of consent was
grounded in her desire to live and conceive through a surrogate. Her expressed
desire was not frustrated by the physicians’ considered medical judgment. This
is not the stuff of a substantive due process violation. No juror could find on this
record anything more than negligence on behalf of the physicians, and
negligence is categorically insufficient to deprive someone of substantive due
process protection.25

       25
          Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849 (1998) (“[L]iability for negligently
inflicted harm is categorically beneath the threshold of constitutional due process.”).

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                                       No. 10-40835

       In light of all of these circumstances, we cannot say that the law is, or was
at the time of the defendants’ conduct, clearly established such that a reasonable
official in Benoit’s and Hannigan’s position would understand that their conduct
violated Sama’s Fourteenth Amendment due process rights. Sama had the
burden to negate qualified immunity. Accepting her assertions as true, and
considering the other undisputed facts in the record before us, Sama has not
cited, and we have not located, a Supreme Court or circuit court decision holding
that a violation occurred under similar circumstances,26 in which an inmate had
consented to at least part of the treatment provided, the additional treatment
was deemed medically necessary as well as necessary to complete the consented-
to procedure that was underway, and the attending physicians determined that
it would be potentially life-threatening to end the surgery without removing the
ovary and completing the radical hysterectomy. The few circuit and district
court cases involving somewhat similar factual situations provide support for the
position that an inmate’s liberty interest in such circumstances is outweighed
by the state’s interests and that a reasonable person in the defendants’ position
could not have believed his actions violated the Fourteenth Amendment.27 At


       26
          See McClendon v. City of Columbia, 305 F.3d 314, 329 (5th Cir. 2002) (en banc)
(holding that a right may be clearly established based on controlling authority—Supreme
Court or Fifth Circuit case law—or “‘a consensus of cases of persuasive authority’” in other
circuits (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999))).
       27
          See Lyons v. Traquina, No. CV 06-2339 RT, 2010 WL 3069336, at *10 (E.D. Cal. Aug.
4, 2010) (holding that an inmate’s Fourteenth Amendment rights were not violated when the
inmate consented to shoulder surgery and the doctor performed procedures on the shoulder
that were deemed medically necessary, despite the inmate’s claim that the specific procedures
performed differed from those to which he had consented); see also Brown v. Ionescu, No. 02
Civ. 1218LMM, 2004 WL 2101962, at *5 (S.D.N.Y. Sept. 21, 2004) (finding fact issues existed
as to whether an inmate consented to placement of a third stent and that, because there was
no evidence indicating the necessity or urgency of the stent, summary judgment on the
inmate’s Fourteenth Amendment claim was inappropriate); cf. Martinez v. Turner, 977 F.2d
421, 423 (8th Cir. 1992) (rejecting constitutional claim against prison regulations authorizing
medical officers to force-feed an inmate if they determined his life or permanent health was
in danger).

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                                      No. 10-40835

least one court has recognized the untenable position of physicians in the
defendants’ position, noting that if they had failed to perform other necessary
procedures while the surgery was underway, they “could have subjected
[themselves] to another deliberate indifference claim.”28
      With great respect, the dissenting opinion misunderstands the law of
qualified immunity. The dissenting opinion suggests that we remand this case
to the district court so that it may “address any necessary balancing between the
prisoner’s liberty interests and any state interests in providing appropriate
medical treatment.”29 The opinion then asserts, “[c]ertainly it cannot be said on
this record as a matter of law that the state’s interest in providing treatment for
a non-emergency condition outweighs Sama’s” Fourteenth Amendment right to
refuse medical treatment. We are not presented with a proceeding in which
Sama is seeking to prevent the State from going forward with treatment against
her will. We are looking in hindsight at physicians’ actions to determine if the
law was so clearly established in this area that it “compel[s] . . . the conclusion
for every like-situated, reasonable government agent that what [the] defendant
[was] doing violate[d] federal law in the circumstances.”30 This is a question of
law and one which this court routinely answers in qualified immunity cases,
even if the district court did not reach it. It was Sama’s burden to negate the
applicability of qualified immunity. She did not satisfy that burden.
      The dissenting opinion asserts that Sama was not “required to imagine
every possible argument a defendant could make—especially, such an
unfathomable argument as that doctors can act at will and contrary to a



      28
           Lyons, 2010 WL 3069336, at *9.
      29
           Infra at 19 n.3.
      30
         Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572, 578-79 (5th Cir. 2009) (internal
quotation marks omitted).

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                                         No. 10-40835

patient’s consent—and counter it.”31 We do not agree that this opinion or the
physicians have posited that Sama’s physicians could “act at will and contrary
to a patient’s consent.”         But irrespective of how the facts before us are
characterized, Sama bore the burden regarding clearly established law. Sama
controverted some, but not all, of the facts set forth in the surgeons’ affidavits.
She was required to demonstrate that the defendants violated clearly
established law when applied to all the salient facts—both the facts as she
claimed them to be and the other undisputed facts. Those facts include not only
Sama’s assertion that she did not consent to the removal of her ovary or lymph
nodes, but also the fact that she did consent to a radical hysterectomy, the
undisputed facts regarding what she was told about the nature of that surgery,
and the undisputed facts regarding her condition. Sama did not meet the
burden imposed upon her under the law of qualified immunity in her response
to the motion for summary judgment.
      In sum, the law governing Fourteenth Amendment claims involving
unwanted medical treatment in the prison context is far from certain. Given the
dearth of case law and the existence of at least some case law supporting the
position that Hannigan’s and Benoit’s conduct was not contrary to clearly
established law, Sama has failed to rebut the defendants’ entitlement to
qualified immunity on her Fourteenth Amendment claim, and summary
judgment was appropriate.
                                     *        *         *
      For the foregoing reasons, the district court’s judgment is AFFIRMED.




      31
           Infra at 17.

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                                       No. 10-40835

HAYNES, Circuit Judge, concurring and dissenting:
       I concur in the majority opinion’s disposition of this appeal with the
exception of Section VII, addressing the claim under the Fourteenth
Amendment, as to which I respectfully dissent.
       Initially, on procedural grounds, I disagree with reaching the Fourteenth
Amendment issue at all on this appeal. Although the doctors asserted qualified
immunity in a general sense to Sama’s lawsuit below in their motion for
summary judgment, they, as well as the district court, failed to address Sama’s
Fourteenth Amendment issue, focusing instead on Sama’s Eighth Amendment
issue.1 Thus, rather than addressing Sama’s Fourteenth Amendment issue for
the first time on appeal, we should remand to allow the district court to examine
it in the first instance. Although I recognize that once a defendant asserts a
qualified immunity defense the burden shifts to the plaintiff to rebut it, Kovacic
v. Villarreal, 628 F.3d 209, 211-12 (5th Cir. 2010), cert. denied, 131 S. Ct. 2995
(2011), I disagree procedurally that a plaintiff (particularly, a pro se prisoner) is
required     to   imagine     every     possible     argument       a   defendant      could
make—especially, such an unfathomable argument as that doctors can act at
will and contrary to a patient’s consent—and counter it.
       As the majority opinion acknowledges, under the substantive due process
clause of the Fourteenth Amendment, a competent person has a liberty interest
in refusing unwanted medical treatment. See Cruzan v. Dir., Mo. Dep’t of
Health, 497 U.S. 261, 278 (1990) (finding that “a competent person has a
constitutionally protected liberty interest in refusing unwanted medical

       1
        Indeed, the doctors only discussed the standards for an Eighth Amendment claim
regarding denial of medical treatment in their motion for summary judgment and similarly,
only addressed her Eighth Amendment claim in their reply to Sama’s response to their motion
for summary judgment. Quite notably, even Sama herself, in her surreply, pointed out that
the doctors had only addressed her Eighth Amendment claim and not her Fifth and
Fourteenth Amendment claims, and yet, the district court, like the doctors, only addressed her
Eighth Amendment claim in its memorandum and order of dismissal.

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                                      No. 10-40835

treatment”); Washington v. Harper, 494 U.S. 210, 221-22 (1990); Thompson v.
Upshur Cnty., Tex., 245 F.3d 447, 462 n.10 (5th Cir. 2001) (“There is no question
that a competent person has a liberty interest in refusing unwanted medical
treatment.”) (internal quotation marks, ellipsis, and citation omitted). Sama’s
complaint alleged that she refused to consent to the removal of her ovary under
any circumstances and complained of several alleged constitutional violations,
including violations of the Fifth, Eighth, and Fourteenth Amendments. She
further alleged that “[t]he wrongful removal of her ovary without her consent
and in violation of the agreed upon treatment plan [constituted a] violation of
her civil and constitutional rights[] to refuse non-court ordered treatments.” In
her response to the doctors’ summary judgment motion, Sama cited Cruzan and
argued that she had a constitutional liberty interest in refusing unwanted
medical treatment as well as the right to die if she so desired. Indeed, contrary
to the majority opinion’s assertion at pages 15-16, Sama fervently argued in her
response that she was willing to “risk death by the leaving of an ovary that
might have to be later removed due to malignancy, in order to have her own
child,” and further argued in her surreply that she “had a right to refuse those
parts of the treatment, even if it meant choosing the right to die.”
       Neither the motion for summary judgment nor the district court’s order
granting that motion addressed Sama’s claim that the doctors disregarded her
lack of consent to the removal of her ovary and thereby violated her Fourteenth
Amendment due process rights. Indeed, the doctors have never argued that they
could remove her ovary without consent. To the contrary, instead of arguing
that they did not need Sama’s consent, the doctors consistently argued in the
district court (and here2) that “they had a good faith belief that Sama understood


       2
        Their argument on this point, after acknowledging Cruzan, was the following: “[T]here
have been no cases where this Court or the Supreme Court have found that a doctor has
violated a patient’s right to refuse medical treatment where the evidence overwhelmingly

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                                       No. 10-40835

the probability of ovary removal and consented to the doctors’ intra-operative
judgment.” In other words, the doctors’ position has always been that they, in
fact, had Sama’s consent to the removal of her one remaining ovary. As a result,
nothing in the summary judgment motion would have put Sama on notice that
she must imagine an argument not made and rebut it.
       The district court did not address the Fourteenth Amendment claim at all,
analyzing Sama’s claims only under the Eighth Amendment deliberate
indifference standard. Accordingly, I conclude on procedural grounds that we
should remand the case to the district court with regard to Sama’s Fourteenth
Amendment claim.3
       The majority opinion concludes that “[b]ecause Sama did not meet her
burden of demonstrating Benoit’s and Hannigan’s conduct was not objectively


shows that the doctor performed the allegedly unwanted procedure with the good faith belief
that the patient consented to it, and when it was undisputedly in the patient’s best interest.”
       3
         On remand, the district court could address any necessary balancing between the
prisoner’s liberty interests and any state interests in providing appropriate medical treatment.
Certainly it cannot be said on this record as a matter of law that the state’s interest in
providing treatment for a non-emergency condition outweighs Sama’s interest in preserving
whatever possibility she may have of conceiving a biological child. This is not to say that had
there been a claimed emergency or necessity, the outcome would be different. Indeed, as
discussed in Cruzan, a competent person has the right to refuse even lifesaving medical
treatment. 494 U.S. at 278-87.
        Furthermore, the majority opinion states that the assertion in Dr. Benoit’s affidavit
that “it was determined that the ovary had to be removed in order to reach and remove
anatomic structures necessary to the performance of the radical portion of the hysterectomy”
is uncontroverted. Maj. Op. at 12. However, review of the record shows that there was no
medical emergency or necessity requiring removal of the ovary. Indeed, even the affidavit of
Dr. Hannigan, Dr. Benoit’s attending faculty surgeon, calls into question the claim that the
ovary absolutely had to be removed for any reason: “[i]t was our opinion that there was no
grossly viable - normal ovarian tissue, that the ovary was non-functional, and, therefore, the
ovary was removed. . . . It was our reasoned medical judgment that the best long-term outcome
for the patient would be removal of the ovary at the time of this procedure. It was in the
patient’s best interest to remove the ovary.” Moreover, Dr. Hannigan, despite the incentive
to state otherwise, never asserts that removal of the ovary was necessary to complete the
radical portion of the hysterectomy. Thus, not only was removal of the ovary not the result
of some life-threatening emergency or imminent situation, but also the suggested necessity
of removal is indeed in doubt.

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                                      No. 10-40835

reasonable in light of clearly established law, the district court did not err in
dismissing the case.” Maj. Op. at 10. Furthermore, although the majority
opinion acknowledges a clear constitutional right for a prisoner to refuse medical
treatment, it finds that the doctors are entitled to qualified immunity for the
unauthorized removal of Sama’s ovary because Sama had arguably authorized4
a “radical” hysterectomy and because the doctors’ intra-operative observation of
the ovary suggested that the ovary was nonfunctional. Maj. Op. at 11-13.
Furthermore, the majority opinion contends that the doctors would not have
been on notice that they were violating clearly established law because there is
not another case like this one. Maj. Op. at 14.
       That there be another case exactly like this one is not required to deny
qualified immunity. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (“We
do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.”); Hope v. Pelzer, 536
U.S. 730, 739 (2002). Moreover, although we should certainly be relieved that
there is not another case exactly like this one, even the very precedents cited in
the majority opinion clearly establish that a prisoner-patient has the right to
refuse treatment. Maj. Op. at 10 n.18. Given that body of law, it is difficult to
see how it is “objectively reasonable” to think that one is not violating the rights
of a patient as adamant as Sama claims she was about what she did and did not
authorize.
       Indeed, even the doctors themselves have not made the argument utilized
by the majority opinion. The doctors, perhaps in consideration of their own
medical ethics5 and professional reputations, never said they could countermand


      4
        Sama contends that the handwritten language “radical hysterectomy and any other
indicated procedure, lymph node dissection” was not there when she signed the consent form.
      5
                    The characteristic that distinguishes a profession, such as
              medicine, from a trade, such as repairing automobiles, is that the

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                                     No. 10-40835

their patient’s expressed wishes and remove the ovary over her objection. See
Murphy v. Russell, 167 S.W.3d 835, 838 (Tex. 2005) (“Medical treatment will not
constitute a battery unless it is provided without the patient’s consent.”); Miller
v. HCA, Inc., 118 S.W.3d 758, 767 (Tex. 2003) (“[T]he general rule in Texas is
that a physician who provides treatment without consent commits a battery.”).
No doubt, the doctors are well aware that “all fallopian tube and ovarian surgery
with or without hysterectomy, including removal and lysis of adhesions,” is a
List A procedure as dictated by the Texas Medical Disclosure Panel and thus,
disclosure and consent to ovarian surgery are specifically required by Texas
statute. TEX. CIV. PRAC. & REM. CODE ANN. § 74.101, et seq. (West 2011); 25 TEX.
ADMIN. CODE §§ 601.1, 601.2(g)(3) (2011).
      The doctors thus have not, could not, and indeed, dared not, argue that a
doctor providing treatment to a prisoner-patient is free to roam about the
prisoner-patient’s body during surgery, exercising his “medical judgment”
against the expressed wishes of the prisoner-patient. Instead, they argued that



            members establish and maintain standards of training,
            competence, and professional behavior. These standards are
            enforced by professional organizations, such as the American
            Medical Association, which has a Council on Ethical and Judicial
            Affairs.
                   Traditionally, medical ethics covers a wide range of
            behavior, including the physician’s involvement with patients
            and their families, and his or her competence, public image, and
            commercial behavior.
                   Physicians must not abuse the relationship of trust they
            develop with patients. . . . They must give clear priority to their
            patients’ interests.
                   ....
                   The physician should ensure that the patient not only
            consents to all procedures, investigations, and treatments, but
            that this consent is based on an unbiased and full explanation of
            any risks, drawbacks, and alternatives that might be considered.

THE AMERICAN MEDICAL ASSOCIATION, ENCYCLOPEDIA OF MEDICINE 422 (Charles B. Clayman,
MD ed., 1989).

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                                        No. 10-40835

she consented (or that they had a good faith belief that she did), a point as to
which the majority opinion concedes (or at least accepts for argument’s sake)
there is a fact issue. With that said, it is bewildering that such bedrock
principles of medical ethics and legal-medico jurisprudence that there be consent
to treatment and respect for a patient’s right to choose his course of treatment
are effectively deemed not clearly established law by operation of the majority
opinion. See Tex. Med. Providers Performing Abortion Servs. v. Lakey, No. 11-
50814, 2012 WL 45413, at *13 (5th Cir. Jan. 10, 2012) (Higginbotham, J.,
concurring) (“The doctor-patient relationship has long been conducted within the
constraints of informed consent to the risks of medical procedures, as demanded
by the common law, legislation, and professional norms. The doctrine itself rests
on settled principles of personal autonomy, protected by a reticulated pattern of
tort law, overlaid by both self- and state-imposed regulation.”); Wall v. Brim, 138
F.2d 478, 481 (5th Cir. 1943) (“The law is well settled that an operation cannot
be performed without the patient’s consent and that one performed without
consent, express or implied, is a technical battery or trespass for which the
operator is liable. . . . The same principle . . . also supports the holding that a
surgeon may not perform an operation different in kind from that consented to
or one involving risks and results not contemplated.” (footnotes omitted)).6
       A pro se plaintiff’s pleadings are to be construed liberally with all well-
pleaded allegations taken as true. Perez v. United States, 312 F.3d 191, 194-95
(5th Cir. 2002) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972) (holding that
allegations in a pro se complaint are to be held “to less stringent standards than


       6
         I certainly recognize that § 1983 is not a means to federalize state tort law, and I do
not suggest that the doctors can or should be held liable here merely for violations of Texas
law. I cite to these cases, statutes, and standards because they inform the analysis of what
clearly established law shows the right to refuse consent means and whether it could be
objectively reasonable for the doctors to think they could act contrary to the prisoner-patient’s
refusal under the facts as Sama alleges them to be.

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                                       No. 10-40835

formal pleadings drafted by lawyers”)); Johnson v. Atkins, 999 F.2d 99, 100 (5th
Cir. 1993) (citing Brinkmann v. Johnston, 793 F.2d 111, 112 (5th Cir. 1986)). In
addition, on summary judgment, “all evidence produced by the nonmovant is
taken as true and all inferences are drawn in the nonmovant’s favor.” Celestine
v. Petroleos de Venezuella SA, 266 F.3d 343, 349 (5th Cir. 2001).
       Applying those standards, Sama’s evidence, as the majority opinion notes,
is that she vociferously and clearly stated that she did not want her ovary
removed because she fiercely desired at least the chance to have a biological
child born through a surrogate.7 She averred that she stated this at every turn
to every medical professional along the chain of professionals she
encountered—“[w]ith each and every one of the team of [doctors,] I made it clear
that I would not sign any permits that allowed the removal of my ovary.”
Indeed, she purposely refused to initial the section of the disclosure forms that
would permit removal of the ovary even if deemed medically necessary—“I was
given no fewer than three lymph node and ovary removal permits and I would
not sign them because I would not consent to the removal of my ovary under any
circumstances.” Thus, she had taken every step she could possibly take to make
her lack of consent to ovary removal known. She then trusted in the doctors to
follow her wishes while she was unconscious and unable to physically stop them.
       Here, it is undisputed that the doctors did just the opposite of Sama’s
wishes and removed Sama’s ovary and, thereby, extinguished her last hope of




       7
         It is uncertain whether Sama has previously had children. Her memorandum of law
in support of her first amended complaint states that she never had any children and that
prior to her incarceration, Sama and her husband had looked into the possibility of harvesting
her ova for implantation in a surrogate because of her fertility problems. However, a note in
her medical records states that Sama reported having children via surrogacy before.
Regardless, one fact that is resoundingly clear, even in that same medical records note, is that
Sama desired to keep her remaining ovary.

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                                      No. 10-40835

conceiving her own biological child.8 In spite of that, the majority opinion
focuses on Sama’s arguable consent to a “radical” hysterectomy. Yet even the
majority opinion’s own discussion shows that a “radical” hysterectomy does not
necessarily entail removal of the ovary. The majority opinion also posits that
Sama’s nonconsent was only limited by her purpose for ovarian conservation so
that when the doctors concluded in their medical judgment that Sama’s ovary
was nonfunctional and possibly (ultimately, but certainly not immediately) life-
threatening, they did not violate her nonconsent by removing it. Maj. Op. at 12-
13. This argument was never made by the doctors.
       The majority opinion’s argument presupposes that Sama would have
consented to the removal of her ovary if she had known that it was
“nonfunctional” or (ultimately) “life-threatening.” These ruminations turn the
summary judgment review standard on its head. Rather than taking Sama’s
evidence as true, the majority opinion creates an implied consent by directly
contravening Sama’s position and evidence and ignoring Sama’s claim that she
refused consent “no matter what” and that she was willing to risk needing future
surgical procedures and even death to conserve her one remaining ovary.
Moreover, a highly disturbing aspect of this case is that despite the doctors’
exercise of “considered medical judgment” and their self-serving assessments
that it was “unlikely that any egg harvesting could ever be performed,” even the
doctors themselves admitted that they could not “state conclusively that Ms.
Sama’s ovary did not remain active, with the ability to produce eggs.”
Furthermore, the pathology report on the ovary whose continued presence in




       8
        Although it has been the focus of much of the majority opinion, removal of Sama’s one
remaining ovary was not simply the end to her ability to have biological children. Instead,
there are also immediate physical consequences that may seriously impact Sama—for
example, the (sometimes severe) hormonal changes caused by ovary removal. An ovary is not
an appendix.

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                                       No. 10-40835

Sama’s body was allegedly life-threatening in the doctors’ judgment, revealed
that the ovary was not cancerous.9
       In addition, the core of the issue at bar is the liberty interest in refusing
unwanted medical treatment, even life-saving medical treatment. Accordingly,
the ultimate purpose for Sama’s desire for ovary conservation is irrelevant if we
take as true that Sama refused consent to ovary removal “under any
circumstances.” The majority opinion’s emphasis on the viability of the ovary or
the eventual threat that it may have posed to Sama’s life as bringing the
removal of Sama’s ovary “within her grant of consent” cannot be squared with
the prisoner-patient’s liberty interest in refusing unwanted medical treatment.
       Given Sama’s clear instructions not to remove the ovary, we do not have
a murky situation of a doctor having consent to perform a specific surgery but
then some emergency arises necessitating some other form of surgery. See
Dunham v. Wright, 423 F.2d 940, 941-42 (3d Cir. 1970) (calling it a “blackletter
rule, clear and simple on its face,” that “[l]egal-medico jurisprudence requires
that a physician obtain the consent of a patient before performing surgery unless
the need for such consent is obviated by an emergency which places the patient
in immediate danger and makes it impractical to secure such consent”). Nor do
we have any other “gray area” where the “not clearly established” jurisprudence
arises. We have clear law that says a prisoner-patient has a constitutional right
to say “no,” we have a patient who said “no,” and we have doctors who are not
claiming that the law would have permitted their conduct despite this “no.”
       The effect of the majority opinion’s conclusion today is that, once a patient
consents to at least some treatment, all treatment is permissible so long as the



       9
          I do not here quarrel with the idea that medical negligence is insufficient for § 1983
liability. Instead, I seek to counter the majority opinion’s assumption that the right to refuse
consent can be vitiated by the doctor’s own (apparently incorrect) “medical judgment” against
the will of his patient or that it would be reasonable for a doctor to think so.

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                                 No. 10-40835

doctor deems it necessary. What, then, is left of the right to refuse treatment?
At the very least, Sama should be permitted to develop this issue in the district
court. Furthermore, at this juncture, whether Sama is entitled to remand on her
Fourteenth Amendment claim should not be diminished or influenced by her
chances of obtaining damages at trial.
      For the foregoing reasons, I respectfully dissent to Section VII of the
majority opinion.




                                       26
