                                                                                 FILED
                                                                     United States Court of Appeals
                                        PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      September 6, 2018

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

JOSEPH W. LEISER,

      Plaintiff - Appellant,

v.                                                             No. 17-3206

SHANNON MOORE; RANDY ROGERS,

      Defendants - Appellees.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                        (D.C. No. 5:16-CV-04110-DDC-KGS)
                       _________________________________

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




                                              2
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.


1
  Plaintiff argues that since the case was removed from state court, the district court
should have instead used the state pleading standard or should have provided him leave to
amend his complaint to conform to the federal rules. His argument that state pleading
standards apply is contrary to circuit precedent. See Wallace v. Microsoft Corp., 596
F.3d 703, 706 (10th Cir. 2010) (“After the removal of an action from state court the case
will proceed as if it originally had been brought in the federal court. Thus, it has been
settled by numerous cases that the removed case will be governed by the Federal Rules of
Civil Procedure and all other provisions of federal law relating to procedural matters.”
(ellipsis and internal quotation marks omitted)). As for leave to amend, Plaintiff
concedes that he did not raise that issue in district court. And on appeal he does not
argue for plain-error review, arguing only that we can review the issue because it is
important and “pure[ly] legal” in nature. Aplt. Br. at 27–28. We decline to consider his
forfeited argument because we typically review such claims only if the litigant argues for
plain-error review. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
2011).


                                               3
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


                                               4
rights.” White v. Pauly, 137 S. Ct. 548, 552 (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 (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.



                                              5
       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


2
  Plaintiff could also find support in our more recent decision in Anderson v. Blake, 469
F.3d 910, 914–15, 917–18 (10th Cir. 2006) (rape victim had a clearly established liberty

                                               6
       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 hostile purposes in our precedents.

       The second reason is the difference in governing law: the development—or,

perhaps more precisely, the clarification—of the relevant constitutional law by the

Supreme Court in the interval between our precedents and this case. As we proceed to

explain, our precedents relied on a reasonable misreading of two Supreme Court opinions

as establishing a right to informational privacy. More recently, however, the Supreme

Court has made clear that the existence of such a right is an open question and it has not

abandoned a third precedent which suggests that any right to informational privacy is

limited.



interest in challenging officials’ disclosure of videotape depicting the attack), although
the personal interest in that case might be based, at least in part, on the interest in privacy
regarding intimate sexual matters.

                                               7
       The lower courts that have declared a constitutional protection against government

disclosure of personal information have relied on two Supreme Court opinions from the

1970s, both of which held that there was no constitutional violation in the case before the

Court. In Whalen, 429 U.S. at 593–94, the Court considered a challenge to a New York

program that required physicians to disclose to the State certain information about their

prescriptions for various controlled substances. The physician needed to submit forms

identifying the physician, the dispensing pharmacy, the drug and dosage, and the patient

(by name, address, and age). See id. The plaintiff physicians and patients complained

that their privacy interests were violated by the required disclosures. See id. at 600. The

Court rejected the claim because of the significant public interest in the disclosures to the

government and the state’s statutory protections against improper disclosure by the

government agencies receiving the information. See id. at 600–04. One passage in the

opinion, however, appeared to recognize a constitutional right: “The cases sometimes

characterized as protecting ‘privacy’ have in fact involved at least two different kinds of

interests. One is the individual interest in avoiding disclosure of personal matters . . . .”

Id. at 598–99.

       A few years later the Supreme Court confronted a similar issue in Nixon v.

Administrator of General Services, 433 U.S. 425, 455–65 (1977). Former President

Nixon brought a Fourth and Fifth Amendment challenge to a federal statute that let the

government take custody of all his presidential tapes and other materials, which included

purely personal matters unrelated to his official duties. See id. at 429, 455. The Court

upheld the statute because of the important public interest served by preservation of the


                                               8
nonpersonal materials and the protections afforded to the President’s privacy. See id.

at 457–65. But again the Court appeared to recognize the constitutional protection

against disclosure, stating that “[o]ne element of privacy has been characterized as ‘the

individual interest in avoiding disclosure of personal matters.’” Id. at 457 (quoting

Whalen, 429 U.S. at 599).

       These two decisions were in tension with a Supreme Court opinion issued less

than a year before Whalen. In Paul v. Davis, 424 U.S. 693, 695 (1976), a town circulated

a flyer to merchants identifying the plaintiff as an “Active Shoplifter.” Although the

plaintiff had been arrested and arraigned on a charge of shoplifting, the charge had not

been pursued and was dismissed shortly after the flyer was circulated. See id. at 695–96.

Claiming that he had been impermissibly denied a liberty interest protected by the

Fourteenth Amendment, see U.S. Const. amend. XIV (“No State shall . . . deprive any

person of life, liberty, or property, without due process of law . . . .”), the plaintiff filed

suit under 42 U.S.C. § 1983. See Paul, 424 U.S. at 696, 698. The Court rejected the

claim. See id. at 709. It said that an interest in reputation alone was quite different from

any liberty or property interest recognized in its precedents and was not guaranteed

against state deprivation without due process. See id. at 711–12. The Court expressed

concern about “mak[ing] . . . the Fourteenth Amendment a font of tort law to be

superimposed upon whatever systems may already be administered by the States.” Id.

at 701. The Court also rejected the plaintiff’s claim that the state’s disclosure violated “a

right to privacy guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth

Amendments.” Id. at 712. It said that the right to privacy it had previously recognized


                                                9
outside of the context of search and seizure concerned “matters relating to marriage,

procreation, contraception, family relationships, and child rearing and education,” and

that the plaintiff’s claim was “far afield from this line of decisions.” Id. at 713.

       Whalen, however, appeared to undermine Paul. When it spoke of “the individual

interest in avoiding disclosure of personal matters,” it made no reference to Paul, a

striking omission considering how recently Paul had been decided. 429 U.S. at 598–99

& n.25. The only reference to Paul in Whalen was the quotation of Paul’s description of

“matters relating to marriage,” etc. as being the subject matter of those cases involving an

“interest in independence in making certain kinds of important decisions”—the second

kind of privacy interest the Court said had been addressed in its precedents. Id. at 600 &

n.26. As for Nixon, it ignored Paul altogether.

       It is thus unsurprising that this circuit’s precedents did not grapple with Paul in

determining the scope of the right to informational privacy. Herring, 218 F.3d at 1175,

for example, relied on our decision in Slayton v. Willingham, 726 F.2d 631 (10th Cir.

1984), which summarily disposed of Paul:

              We think that the district court misapplied Paul v. Davis. That case
       held that publicity that damaged the plaintiff’s reputation and no more was
       neither a deprivation of his fourteenth amendment liberty interest nor a
       violation of his constitutional right to privacy. 424 U.S. at 712–13. Since
       Paul v. Davis, however, the Supreme Court has explicitly recognized that
       the constitutional right to privacy encompasses an “individual interest in
       avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589,
       599 (1977) (footnote omitted); Nixon v. Administrator of General Services,
       433 U.S. 425, 457 (1977).

Id. at 635. That was a more than reasonable view of where the Supreme Court stood;

and, in any event, it would be binding precedent in this circuit—and therefore would be


                                              10
clearly established law that there is a constitutional right to informational privacy—

absent further elaboration by the Supreme Court. See United States v. Springer, 875 F.3d

968, 975 (10th Cir. 2017), cert. denied, 138 S. Ct. 2002 (2018) (we are ordinarily bound

by circuit precedent unless “subsequent Supreme Court authority undermines our prior

precedent”).

       But in recent years the Supreme Court has significantly elaborated on the

applicable law, raising serious doubts about the assumptions of governing law on which

we relied in our precedents on the disclosure of private medical information. First, in

Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), the Court recognized

that there was at least some life left in Paul. Doe had challenged the public disclosure of

Connecticut’s sex-offender registry because he had been denied a hearing to determine

whether he was no longer dangerous. The Court rejected the challenge. It noted that in

Paul it had “held that mere injury to reputation, even if defamatory, does not constitute

the deprivation of a liberty interest.” Id. at 6–7. But it did not need to decide whether

Paul itself demanded denial of the claim because state law required listing in the registry

even if Doe was no longer dangerous, so there would be no point in giving him the

requested hearing. See id. at 7–8.

       Much more importantly, in 2011 the Supreme Court made clear that any

statements in its precedents regarding a constitutional protection against government

disclosure of personal information were dicta. The opinion in NASA v. Nelson, 562 U.S.

134, 138 (2011), began as follows: “In two cases decided more than 30 years ago, this

Court referred broadly to a constitutional privacy ‘interest in avoiding disclosure of


                                             11
personal matters.’ Whalen v. Roe, 429 U.S. 589, 599–600 (1977); Nixon v. Administrator

of General Services, 433 U.S. 425, 457 (1977).” “[R]eferred broadly to” is not the sort of

language courts use to designate holdings. Then, after noting that the plaintiff federal

contract employees were relying on Whalen and Nixon to challenge questions on forms to

be filled out by employees and their references, the Court wrote: “We assume, without

deciding, that the Constitution protects the privacy right of the sort mentioned in Whalen

and Nixon.” Id. Why “assume” something if it had already been resolved by precedent?

There would be no need to merely assume the proposition, and there would be nothing to

reserve decision on, if the Supreme Court had previously held that the Constitution

protected such privacy rights. (In this regard, it is important to remember that the

constitutional claims in Whalen and Nixon were both rejected by the Court.) Later in its

NASA opinion, the Court made the point explicitly, saying: “As was our approach in

Whalen, we will assume for present purposes that the Government’s challenged inquiries

implicate a privacy interest of constitutional significance.” Id. at 147.

       Thus, it can no longer be said in the context of government disclosure of

information that “[t]here is no dispute that confidential medical information is entitled to

constitutional privacy protection.” A.L.A., 26 F.3d at 990 (emphasis added).3 The


3
  Indeed, the concurrence of Justice Scalia in NASA shows that the existence of a right of
informational privacy is a matter of vigorous dispute. The concurrence asserted that not
only is there no Supreme Court precedent on the existence of a constitutional protection
against government disclosure of personal information, but that Paul forecloses the
existence of such a right:

       Our due process precedents, even our “substantive due process” precedents,
       do not support any right to informational privacy. . . . [W]e have held that a

                                             12
Supreme Court has stated that this is an open question—it has never held that there is a

constitutional right to prevent government disclosure of private information. This is not

to say that our precedents on this issue are incorrect or that they have been overruled.

That is a matter we need not decide on this appeal. The question before us is only

whether the law is clearly established that government disclosure to family and friends

that a prisoner is suffering from cancer violates the prisoner’s constitutional rights. Even

if we assume that the disclosures in A.L.A. and Herring were unconstitutional, it is

certainly unclear how far those opinions should be extended when we do not know the

doctrinal boundaries of the protection against government disclosure. For example, it

would be consistent with our precedents to say that disclosures are prohibited only when

they shock the conscience. Cf. Browder v. City of Albuquerque, 787 F.3d 1076, 1078–79

(10th Cir. 2015) (Gorsuch, J.) (“If the [alleged constitutional due-process] infringement is


       government act of defamation does not deprive a person “of any ‘liberty’
       protected by the procedural guarantees of the Fourteenth Amendment.”
       Paul v. Davis, 424 U.S. 693, 709 (1976). We reasoned that stigma,
       standing alone, does not “significantly alter” a person’s legal status so as to
       “justify the invocation of procedural safeguards.” Id. at 708–709.

Id. at 161–62 (Scalia, J., concurring) (emphasis added) (original brackets omitted).
Justice Scalia then argued that if the Constitution does not provide protection against
public disclosure of false information, it makes no sense to say that it protects against
disclosure of information that is true: “If outright defamation does not qualify, it is
unimaginable that the mere disclosure of private information does.” Id. at 162. The
majority opinion in NASA did not take issue with the substance of Justice Scalia’s
discussion of the existence of the constitutional right; it responded only by saying that
this was not the case to resolve the matter. See NASA, 562 U.S. at 147 n.10. (“The
opinions concurring in the judgment . . . would . . . provide a definitive answer to the
question whether there is a constitutional right to informational privacy. . . . There are
sound reasons for eschewing [that] course.”).


                                             13
the result of executive action, the Supreme Court has instructed us to ask whether that

action bears a reasonable justification in the service of a legitimate governmental

objective or if instead it might be characterized as arbitrary, or conscience shocking.”

(internal quotation marks omitted)). The government disclosures that the plaintiffs in our

two precedents were HIV positive were vicious and outrageous.

       In this regard, we think a decision by the Second Circuit is particularly relevant.

In Matson v. Board of Education, 631 F.3d 57, 58–60 (2d Cir. 2011), decided a week

before NASA, a teacher sued for public disclosure of her fibromyalgia. The court rejected

the claim, distinguishing its precedents holding that a constitutional “privacy right exists

with respect to a person’s HIV status and transsexualism.” Id. at 64 (citation omitted). It

declared that “the interest in the privacy of medical information will vary with the

condition,” id. (internal quotation marks omitted), noting that “[h]istorically, courts have

considered on a case-by-case basis whether a disease was contagious or attributed in any

way to socially repugnant conduct and whether it could be said that society as a whole

views the disease as directly associated with any disease which might conceivably be

characterized as loathsome,” id. at 66. (ellipsis, brackets, and internal quotation marks

omitted); see id. (noting a New York case saying that cancer is not a loathsome disease).

What distinguished fibromyalgia from AIDS and transsexualism was that its disclosure

would not “bring about public opprobrium [or] expose a person to discrimination and

intolerance.” Id. at 67 n.7.

       We cannot say that it is clearly established that this court, in light of NASA’s

characterization of Whalen and Nixon as expressing only dicta, would reject the kind of


                                             14
distinction between diseases that the Second Circuit expressed in Matson. In short, in our

view clearly established law does not support Plaintiff’s constitutional claim.

       II.    CONCLUSION

      We AFFIRM the district court’s judgment. We GRANT plaintiff’s motion

to proceed in forma pauperis.




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