     Case: 17-50022   Document: 00514484852     Page: 1   Date Filed: 05/23/2018




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

                                 No. 17-50022                        FILED
                                                                 May 23, 2018
                                                                Lyle W. Cayce
GLORIA BUSTILLOS,                                                    Clerk

             Plaintiff - Appellant

v.

EL PASO COUNTY HOSPITAL DISTRICT; UNIVERSITY MEDICAL
CENTER; FRANK MENDEZ; LYNETTE TELLES; DANIEL SOLOMIN;
MICHAEL PARSA,

             Defendants - Appellees



                Appeal from the United States District Court
                     for the Western District of Texas


Before KING, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      This case stems from a series of increasingly intrusive body searches
performed by state medical staff during a border stop in El Paso, Texas. The
district court dismissed Appellant’s claims based on qualified immunity,
failure to allege a valid claim for county liability under § 1983, and failure to
meet Texas state tort standards. We affirm.
                               BACKGROUND
I.    The Search and Seizure
      Appellant Gloria Bustillos (“Bustillos”) is a U.S. citizen. On September
19, 2013, Bustillos was crossing the Paso del Norte bridge from Juarez, Mexico,
     Case: 17-50022      Document: 00514484852         Page: 2    Date Filed: 05/23/2018



                                      No. 17-50022
to El Paso, Texas. Bustillos did not have any illegal drugs or contraband. After
presenting her passport to Customs and Border Protection agents, Bustillos
was immediately taken into custody despite telling agents that she was not in
possession of narcotics. An increasingly intrusive series of searches followed.
       First, two female agents conducted a pat down. The agents found no
drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert
to the presence of drugs. Two agents then took Bustillos to a restroom, where
they ordered her to pull down her pants and underwear and bend over slightly.
The agents conducted a visual inspection of Bustillos’ vaginal and anal area.
Again, the agents found no drugs. Despite no evidence of drugs, the agents
placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported
her to the University Medical Center (the “Hospital”) in El Paso.
       At the Hospital, Doctors Michael Parsa and Daniel Solomin (the
“Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed
no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam
evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin
found no evidence of drugs. As part of these searches, the Doctors, and Nurses
Lynette Telles and Frank Mendez (the “Nurses”), 1 allegedly “brutally” probed
Bustillos’ cavities in the presence of hospital personnel. Bustillos did not
consent to any of the above searches.
       At approximately 4:00 a.m. the next morning, after finding no evidence
of narcotics, the Doctors released Bustillos to CBP agents, who drove Bustillos
to the international bridge and released her.




       1Though Bustillos did not specifically name the Nurses while describing these probes,
Bustillos’ complaint names Lynette Telles and Frank Mendez as defendants, who were
“acting within the scope of [their] employment as a nurse” at UMC at the time of the probes.

                                             2
       Case: 17-50022     Document: 00514484852         Page: 3     Date Filed: 05/23/2018



                                       No. 17-50022
II.     Procedural History
        On September 18, 2015, Bustillos filed a complaint in a Texas state court
alleging Bivens and § 1983 claims against various state and federal actors. The
Hospital timely removed the case to federal court.
        Pertinent to this appeal, Bustillos alleged § 1983 claims under the
Fourth, Fifth, and Fourteenth Amendments against the Doctors and Nurses in
their individual capacities. Bustillos further asserted a § 1983 claim against
the El Paso County Hospital District/University Medical Center (the
“District”) 2 under a county liability theory. 3 Bustillos next asserted a claim
under the Texas Tort Claims Act (“TTCA”) against the District. Though not
listed as a cause of action, Bustillos maintained below, and on appeal, that she
asserted intentional tort claims against the Doctors and Nurses under Texas
law.
        All of the relevant defendants filed motions to dismiss under 12(b)(6) and
12(b)(1), asserting various immunity theories. Solomin also filed a motion for
a protective order, seeking to prevent discovery until the district court ruled
on his qualified immunity defense.
        Without ruling on the protective order, the district court granted the
motions to dismiss on all claims. The district court granted qualified immunity
to the individual defendants against the § 1983 claims and held that the tort
claims failed on immunity and Texas statutory grounds. As to the District, the
court found that Bustillos had failed to sufficiently allege any of the necessary




        2Bustillos’ Amended Complaint asserts § 1983 claims against both the District and
the Hospital. The district court noted that the Hospital and the District are the same entity.
Bustillos does not challenge that determination on appeal.

        Bustillos additionally brought claims against Texas Tech University Health Sciences
        3

Center, which the district court remanded to state court. Bustillos does not challenge that
remand, and we therefore do not address those claims.
                                              3
     Case: 17-50022      Document: 00514484852   Page: 4   Date Filed: 05/23/2018



                                  No. 17-50022
elements for county liability under § 1983 and failed to timely give notice for
her state tort claims.
      This appeal timely followed.
                                 DISCUSSION
      Bustillos’ arguments on appeal can be divided into three broad
categories. First, she challenges the dismissal of her constitutional claims.
Second, she challenges dismissal of her state tort claims. Third, she challenges
the district court’s failure to allow discovery prior to ruling on the motions to
dismiss. We discuss each category in turn.
I.    Constitutional Claims
      Bustillos alleged § 1983 claims against the Doctors and Nurses in their
individual capacities, as well as against the District on a county liability
theory. Because disposition of the individual liability claims resolves both the
individual and county liability causes of action, we address only those claims
in detail. Before doing so, however, we discuss whether Bustillos’ claims for
substantive due process violations are cognizable as alleged.
      A.    Substantive Due Process Claims Not Cognizable
      Bustillos alleges that the searches violated substantive due process
standards because they were conducted “in a manner that shocks the
conscious.” We need not reach this issue. Bustillos’ substantive due process
claims are not cognizable with her Fourth Amendment allegations.
      The Supreme Court has “always been reluctant to expand the concept of
substantive due process.” Collins v. City of Harker Heights, 503 U.S. 115, 125
(1992). “Where a particular Amendment ‘provides an explicit textual source of
constitutional protection’ against a particular sort of government behavior,
‘that Amendment, not the more generalized notion of ‘substantive due process,’
must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266,


                                        4
    Case: 17-50022     Document: 00514484852      Page: 5   Date Filed: 05/23/2018



                                  No. 17-50022
273 (1994) (plurality opinion) (quoting Graham v. Connor, 409 U.S. 386, 395
(1989)).
      Bustillos’ substantive due process claims rest on the same underlying
acts that constituted the alleged unlawful search and seizure. Because the
Fourth Amendment “fully embraces” these allegations, the district court did
not err in dismissing the substantive due process claims. See Roe v. Tex. Dep’t
of Protective & Regulatory Servs., 299 F.3d 395, 411 (5th Cir. 2002).
      B.   Personal Capacity § 1983 Claims
      Bustillos argues that the Doctors and Nurses violated her Fourth
Amendment right to be free from unreasonable searches and seizures by
detaining her in order to conduct x-ray, pelvic, and rectal exams without
reasonable suspicion of criminal activity. The district court held those
allegations cannot overcome the Doctors’ and Nurses’ qualified immunity
because the right at issue was not clearly-established. We agree and affirm on
that ground. Nonetheless, we take this opportunity to clarify the constitutional
duties of medical staff when they cooperate with law enforcement searches.
      “Qualified immunity shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was ‘clearly established’
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011). “A right is clearly established only if its contours are sufficiently clear
that ‘a reasonable official would understand that what he is doing violates that
right.’” Carroll v. Carman, 135 S. Ct. 348, 350 (2014) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
            1.     Constitutional Violation
      The Fourth Amendment provides “[t]he right of the people to be secure
in their persons . . . against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause.” U.S. Const.
                                        5
    Case: 17-50022    Document: 00514484852     Page: 6   Date Filed: 05/23/2018



                                 No. 17-50022
amend. IV. “[W]arrantless searches and seizures are per se unreasonable
unless they fall within a few narrowly defined exceptions.” United States v.
Cardenas, 9 F.3d 1139, 1147 (5th Cir. 1993). “One important exception is the
border search doctrine,” which allows “a governmental officer at the
international border [to] conduct routine stops and searches without a warrant
or probable cause.” Id. Nonetheless, for a “non-routine” search at the border,
officials must “reasonably suspect the traveler is smuggling contraband.”
United States v. Roberts, 274 F.3d 1007, 1012 (5th Cir. 2001). Cavity searches,
strip searches, and x-ray examinations are all “non-routine.” United States v.
Kelly, 302 F.3d 291, 294 (5th Cir. 2002). “Because [the District] is a state
hospital, the members of its staff are government actors, subject to the
strictures of the Fourth Amendment.” See Ferguson v. City of Charleston, 532
U.S. 67, 76 (2001).
      The searches conducted at the Hospital were all non-routine. The
Doctors and Nurses therefore needed reasonable suspicion of drug smuggling
to constitutionally justify those searches. Whether the Doctors and Nurses had
reasonable suspicion turns on an issue of first impression in this circuit: Must
medical staff establish their own, independent reasonable suspicion where law
enforcement officers either state that sufficient suspicion exists or request the
search? We conclude they do not. A medical professional has no constitutional
duty to independently evaluate the Fourth Amendment determinations of law
enforcement officers. Nonetheless, medical staff must, either through their
own independent determination or through reliance on law enforcement
officials, have sufficient suspicion to justify each search in a series of non-
routine searches.
      Though there is no Fifth Circuit case on point, our sister courts have held
that medical professionals do not violate the Constitution where they rely on
law enforcement officers’ Fourth Amendment determinations. See Marshall v.
                                       6
     Case: 17-50022       Document: 00514484852         Page: 7     Date Filed: 05/23/2018



                                       No. 17-50022
Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1178-81 (10th Cir. 2003); Rodriques
v. Furtado, 950 F.2d 805, 810 (1st Cir. 1991); United States v. Velasquez, 469
F.2d 264, 266 (9th Cir. 1972). This approach is sensible. “Nurses and other
medical personnel have neither the training nor the information that would be
necessary to second-guess police determinations regarding probable cause,
exigent circumstances, and the like.” Marshall, 345 F.3d at 1180. 4
       However, in each of these cases, the officers presented the medical
professionals with either a warrant, direct request for a specific search, or
other articulation of adequate suspicion. See id. at 1179 (granting qualified
immunity where nurse conducted blood test “at behest of police officers” who
“signed the consent form”); Furtado, 950 F.2d at 810-11 (granting qualified
immunity where doctor performed cavity search pursuant to a warrant);
Velasquez, 469 F.2d at 266 (holding that CBP officer’s “clear indication” that
contraband was hidden was “sufficient to justify the rectal search” by
physician).
       A different set of facts is presented where an “examining physician
conduct[s] a [search] without a request to do so by the customs agent; and
neither the physician nor the [law enforcement] agents . . . ha[ve] real suspicion
[the individual] [is] concealing narcotics.” See Velasquez, 469 F.2d at 266. For


       4 We do not resolve a related but distinct question: under what circumstances may a
medical professional be held liable for the manner in which a particular search is conducted.
Under Supreme Court caselaw, even if a particular type of compelled bodily intrusion is
justified by the circumstances, it may still violate the Fourth Amendment if performed in an
“improper manner.” See Schmerber v. California, 384 U.S. 757, 768 (1966); cf. Bell v. Wolfish,
441 U.S. 520, 560 (1979) (noting that while suspicionless visual body-cavity inspections in
prison are generally permissible, “[t]he searches must be conducted in a reasonable manner”).
To determine whether a particular procedure was conducted in an improper manner, other
courts of appeals have focused on several factors: location, hygiene, medical training,
emotional and physical trauma, and the availability of alternatives. See, e.g., United States
v. Fowlkes, 804 F.3d 954, 963 (9th Cir. 2015). We need not pass on those factors today. The
complaint is ambiguous as to whether the examinations were conducted in an improper
manner and the precise contours of the right were not clearly established under our law at
the time of the searches.
                                              7
     Case: 17-50022      Document: 00514484852         Page: 8     Date Filed: 05/23/2018



                                      No. 17-50022
instance, in Huguez v. United States, 406 F.2d 366 (9th Cir. 1968), officers did
not articulate to medical staff any information indicating that the search was
reasonable. Id. at 378-79. Nor did the officers presenting the plaintiff to the
doctor have any reasonable suspicion themselves. Id. Nonetheless, the doctor
conducted a probe, “on his own initiative without any request or suggestion
that he do so.” Id. at 378. The Ninth Circuit found that search to be
unconstitutional. Id. at 379.
       Accordingly,     Bustillos’    allegations     could      potentially    assert    a
constitutional violation. The complaint is, however, ambiguous on critical
factual allegations. For instance, it is unclear who Bustillos alleges actually
ordered the various searches. Further, it is unclear what the CBP officers told
medical staff regarding their basis for requesting the various searches. These
facts are important because the officers’ articulation of probable cause for a
minimally invasive search, such as the x-ray, would not necessarily shield the
Doctors and Nurses from liability for the more intrusive searches, such as the
rectal probe, if the officers did not request that search or represent that
sufficient suspicion justified it. 5 However, if the officers requested all of the
medical examinations, the Doctors and Nurses would have a strong argument
that they had no duty to second-guess the Fourth Amendment basis for those
searches.
       Regardless, we need not determine the sufficiency of Bustillos’
allegations. Even if the complaint sufficiently alleges a Constitutional
violation, the violated right was not clearly established under our law at the
time of the searches.


       5 We do not resolve whether medical professionals can be held liable under the Fourth
Amendment for procedures they perform for medical reasons and not at the behest of law
enforcement. See United States v. Chukwubike, 956 F.2d 209, 212 (9th Cir. 1992) (“Invasions
of the body by doctors for medical purposes are neither a search nor a seizure.”).

                                             8
    Case: 17-50022     Document: 00514484852      Page: 9   Date Filed: 05/23/2018



                                  No. 17-50022
            2.     Clearly Established Right
      We cannot “define clearly established law at a high level of generality.”
See al-Kidd, 563 U.S. at 742. This inquiry “must be undertaken in light of the
specific context of the case, not as a broad general proposition.” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting Brosseau v. Haugen, 543 U.S. 194,
198–99 (2004)). The Supreme Court does “not require a case directly on point,
but existing precedent must have placed the statutory or constitutional
question beyond debate.” al-Kidd, 563 U.S. at 741. “It is the plaintiff’s burden
to find a case in [her] favor that does not define the law at a ‘high level of
generality.’” Vann v. City of Southaven, 884 F.3d 307, 310 (5th Cir. 2018)
(quoting Cass v. City of Abilene, 814 F.3d 721, 733 (5th Cir. 2016)).
      Appellant has not carried her burden of pointing this panel to any case
that shows, in light of the specific context of this case, that the Doctors’ or
Nurses’ conduct violated clearly established law. Further, our independent
review has uncovered only one case, Huguez. Though we find the analysis in
Huguez persuasive, and adopt it above, we are not persuaded that a single,
fifty year old case from another circuit is sufficient in this instance to have
“placed the . . . constitutional question [at issue] beyond debate.” See Al-Kidd,
563 U.S. at 741.
      The district court did not err in granting the Doctors and Nurses
qualified immunity.
      C.   County Liability § 1983 Claims
      Because Bustillos did not demonstrate a clearly established right, it
follows that her claims for deliberate indifference against the District also fail.
      The Amended Complaint’s county liability theory is premised on the
District’s “deliberate indifference” to the need “to train its personnel in how to
handle government request[s] for body cavity searches.” However, a
“policymaker cannot exhibit fault rising to the level of deliberate indifference
                                        9
      Case: 17-50022     Document: 00514484852          Page: 10     Date Filed: 05/23/2018



                                       No. 17-50022
to a constitutional right when that right has not yet been clearly established.”
Hagans v. Franklin Cty. Sheriff’s Office, 695 F.3d 505, 511 (6th Cir. 2012)
(quoting Szabla v. City of Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (en
banc)). The district court properly dismissed the county liability claim. 6
II.     State Tort Claims
        Bustillos argues that the district court erred in dismissing her
intentional torts claim against Doctor Solomin. We disagree. The court
properly concluded that Bustillos’ state tort claims fail under the TTCA.
        “The TTCA provides a limited waiver of immunity for certain suits
against Texas governmental entities.” Bustos v. Martini Club Inc., 599 F.3d
458, 462 (5th Cir. 2010). “But a plaintiff who sues under the TTCA must elect
pursuant to § 101.106 of that act between suing a governmental unit and suing
an employee of that unit.” Id. “If the plaintiff sues both the governmental unit
and any of its employees under the TTCA, ‘the employees shall immediately be
dismissed on the filing of a motion by the governmental unit.’” Id. (quoting Tex.
Civ. Prac. & Rem. Code § 101.106(e)).
        The Amended Complaint asserted tort claims against both Texas Tech
and its employee Doctors. The conduct and injuries underlying all of those torts
stemmed from the same allegations. Texas Tech filed a motion to dismiss its
employees pursuant to § 101.106(e). Accordingly, the district court properly




        6In dismissing the county liability claims, the district court stated that it had found
the Doctors and Nurses “did not violate the constitution.” This is not our understanding of
the district court’s qualified immunity analysis, which found “the second qualified immunity
prong dispositive.” Granting of qualified immunity on the “clearly-established” prong is not
the same as holding that no constitutional violation occurred. That would conflate the two
prongs of qualified immunity. Thus, a grant of qualified immunity based on the “clearly-
established” prong does not necessarily negate the constitutional violation element of a
county liability claim, as the district court erroneously assumed. See Matusick v. Erie Cty.
Water Auth., 757 F.3d 31, 61-63 (2d Cir. 2014); Veneklase v. City of Fargo, 78 F.3d 1264, 1268-
70 (8th Cir. 1996).
                                             10
       Case: 17-50022    Document: 00514484852     Page: 11    Date Filed: 05/23/2018



                                    No. 17-50022
dismissed the tort claims against the Doctors because Bustillos had also sued
their employer entity.
         Bustillos’ arguments asserting error are unavailing. In Bustos, we
directly rejected the argument that § 101.106(e) does not bar claims for
intentional torts such as assault and battery. 599 F.3d at 463. Bustos also
rejected a claim that § 101.106(f) dismissal is improper if the tort claim is not
brought directly under the Texas Tort Claims Act. See id. (stating that common
law tort claims without a statutory basis are assumed to have been brought
under the TTCA).
         The district court did not err in dismissing the intentional tort claims
against the Doctors.
III.     The Discovery Issue
         Bustillos claims that the district court abused its discretion by failing to
grant her requests to conduct discovery prior to ruling on the motions to
dismiss. We disagree.
         Both motions for protective orders noted that the Doctors had asserted
qualified immunity. “One of the most salient benefits of qualified immunity is
protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648
(5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified
immunity is alleged, the district court must first find ‘that the plaintiff’s
pleadings assert facts which, if true, would overcome’ a qualified immunity
defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014)
(quoting Backe, 691 F.3d at 648).
         Because Bustillos’ claims could not overcome the clearly-established
prong of the qualified immunity defense, the district court did not err by
declining to grant Bustillos’ discovery requests.




                                          11
    Case: 17-50022   Document: 00514484852      Page: 12   Date Filed: 05/23/2018



                                 No. 17-50022
                               CONCLUSION
        Though the treatment Bustillos allegedly suffered is concerning,
Bustillos has failed to assert a valid claim for relief under either Texas state
law or the law of our circuit at the time of the alleged conduct. We AFFIRM in
full.




                                      12
