                                                       NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                           _____________

                            No. 14-4104
                           _____________

                       SHEMTOV MICHTAVI

                                  v.

      WILLIAM SCISM, FORMER WARDEN, LSCI ALLENWOOD;
      J. MILLER, SUPERVISING PHYSICIAN, LSCI ALLENWOOD;
 D. SPOTTS, COORDINATOR, HEALTH SERVICES, LSCI ALLENWOOD;
UNITED STATES OF AMERICA; J.L. NORWOOD, NORTHEAST REGIONAL
 DIRECTOR;HARRELL WATTS, NATIONAL INMATE ADMINISTRATIVE
  APPEALS ADMINISTRATOR; DELBERT G. SAUERS, WARDEN LSCI
ALLENWOOD; FRANK STRADA, FORMER WARDEN, LSCI ALLENWOOD;
                          DOES #1 TO #5

                              William Scism,
                              D. Spotts,
                              J. Miller,

                                       Appellants


            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                 (District Court No.: 1-12-cv-01196)
             District Judge: Honorable John E Jones, III


              Submitted under Third Circuit LAR 34.1(a)
                       on September 11, 2015


                   (Opinion filed: October 19, 2015)
              Before: VANASKIE, SLOVITER, RENDELL Circuit Judges


                                        O P I N I O N


RENDELL, Circuit Judge

       Shemtov Michtavi, a pro se prisoner, brought suit against William Scism, former

warden of the Federal Correctional Institution in Allenwood, D. Spotts, former Assistant

Health Services Administrator and medical supervisor at Allenwood, and Dr. J. Miller,

supervising physician at Allenwood (“Appellants”), for their failure to treat his retrograde

ejaculation condition. Appellants moved for summary judgment based on qualified

immunity, but the District Court denied their motion because it concluded that there was

a question as to whether retrograde ejaculation is a serious medical need requiring

treatment under the Eighth Amendment. Appellants appeal that order, and we conclude

that they are entitled to qualified immunity because a prisoner’s right to treatment of

retrograde ejaculation, infertility, or erectile dysfunction is not clearly established.

Accordingly, we will reverse the District Court’s order and remand for the District Court

to enter summary judgment in Appellants’ favor.





 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.


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    I.   Background

         While he was incarcerated at Allenwood, Michtavi received an operation to treat

his prostate. The Federal Bureau of Prisons (“BOP”) contracted with Dr. Chopra, who

was not a BOP employee, to perform the surgery. After the surgery, Michtavi noticed

that the quantity of his ejaculate had reduced. He was diagnosed with retrograde

ejaculation. He asked the BOP to treat this problem “because when I do finally get

released from prison, I wish to have a normal sex life.” (J.A. 163.) He also complained

that if he was not treated, he might become impotent. The BOP responded that it does

not treat impotence. On January 13, 2011, Michtavi saw Dr. Chopra, who “advised that

Psuedofel would be prescribed to close the hole that was opened during the laser surgery

which would thereby prevent ejaculate from leaking into the bladder.” (J.A. 267.)

         The BOP did not provide the medication because “[i]t is the Bureau of Prison’s

position that the treatment of a sexual dysfunction is not medically necessary,

and . . . medical providers are not to talk to inmates about ejaculation, since it is a

prohibited sexual act.” (J.A. 188.)1

         Michtavi filed suit, asserting an Eighth Amendment claim for deliberate

indifference to his serious medical need. Appellants filed a motion to dismiss and for

summary judgment and argued that they were entitled to qualified immunity. The

Magistrate Judge issued a Report and Recommendation, recommending that their motion

be denied because “the right to procreation is a fundamental right and the Supreme Court


1
    BOP regulations prohibit “[e]ngaging in sexual acts.” 28 C.F.R. § 541.3, tbl.1 no. 205.

                                               3
has recognized that a prisoner has a fundamental right to post-incarceration procreation.”

(J.A. 93.) The Magistrate Judge cited Skinner v. Oklahoma ex rel. Williamson, 316 U.S.

535, 541 (1942), in which the Supreme Court struck down a law mandating sterilization

for habitual criminals. The Magistrate Judge then concluded that “prisoners retain a

fundamental right to preserve their procreative abilities for use following release from

custody.” (J.A. 93.) She recommended that, because Michtavi had alleged that

retrograde ejaculation could make him sterile, his Eighth Amendment claims should

survive summary judgment. She also concluded that the Defendants were not entitled to

qualified immunity because Eighth Amendment jurisprudence clearly establishes that

prison officials may not be indifferent to a serious medical need. The District Court

adopted the Magistrate Judge’s Report and Recommendation. Appellants then filed this

interlocutory appeal challenging the District Court’s denial of qualified immunity.


    II.   Analysis2

          Appellants are entitled to qualified immunity. “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, 131 S. Ct. 2074,

2080 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).


2
  We have jurisdiction over this interlocutory appeal because “a district court’s denial of a
claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable
‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a
final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).

                                               4
       The District Court defined the right at issue as either the Eighth Amendment right

to treatment of serious medical needs or the fundamental right to procreate, but both of

those definitions are too broad. Courts must define the right at issue with specificity: “In

determining whether a right has been clearly established, the court must define the right

allegedly violated at the appropriate level of specificity.” Sharp v. Johnson, 669 F.3d

144, 159 (3d Cir. 2012); see also al-Kidd, 131 S. Ct. at 2084 (“We have repeatedly told

courts . . . not to define clearly established law at a high level of generality. The general

proposition, for example, that an unreasonable search or seizure violates the Fourth

Amendment is of little help in determining whether the violative nature of particular

conduct is clearly established.”) (citations omitted). A properly tailored definition of the

right at issue here is whether the BOP is obligated to treat retrograde ejaculation,

infertility, or erectile dysfunction.

       In Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam), the Supreme Court

held that there was no clearly established right to suicide prevention measures in prisons

and emphasized the importance of the “clearly established” prong of qualified immunity.

The Supreme Court explained that, “[n]o decision of this Court establishes a right to the

proper implementation of adequate suicide prevention protocols. No decision of this

Court even discusses suicide screening or prevention protocols.” Id. at 2044. It also

noted that, “‘to the extent that a robust consensus of cases of persuasive authority’ in the

Courts of Appeals ‘could itself clearly establish the federal right respondent alleges,’ the

weight of that authority at the time of Barkes’s death suggested that such a right did not

exist.” Id. at 2044 (quoting City & Cnty. of S.F., Cal. v. Sheehan, 135 S. Ct. 1765, 1778

                                              5
(2015)). Thus, Barkes makes clear that there must be precedent indicating that the right

at issue is clearly established.

       There is no Supreme Court or appellate precedent holding that prison officials

must treat retrograde ejaculation, infertility, or erectile dysfunction; in fact, the weight of

authority is to the contrary. The Magistrate Judge relied on Skinner, but Skinner

establishes only that states may not sterilize prisoners; it does not hold that prisoners are

entitled to treatment for infertility or sexual problems. The Court of Appeals for the

Sixth Circuit has held that a prisoner is not entitled to treatment for erectile dysfunction.

It upheld a district court’s grant of summary judgment to prison officials who failed to

treat an inmate’s erectile dysfunction because “erectile dysfunction cannot be said to be a

serious medical condition, given that no physician indicated its treatment was mandatory,

it was not causing . . . pain, and it was not life-threatening.” Lyons v. Brandly, 430 F.

App’x 377, 381 (6th Cir. 2011). And, in Goodwin v. Turner, 908 F.2d 1395 (8th Cir.

1990), the Court of Appeals for the Eighth Circuit upheld the BOP’s policy against

permitting prisoners to procreate. The BOP had denied a prisoner’s request for “a clean

container in which to deposit his ejaculate, and a means of swiftly transporting the

ejaculate outside the prison” to his wife, who could inject herself with a syringe. Id. at

1398. The Goodwin court held that, even though procreation is a fundamental right, “the

restriction imposed by the Bureau is reasonably related to achieving its legitimate

penological interest.” Id. While Goodwin did not involve a medical condition, it did

hold that the BOP is not required to help a prisoner procreate. Because there is no

authority establishing—let alone “clearly” establishing—a right for prisoners to receive

                                               6
treatment for retrograde ejaculation, infertility, or erectile dysfunction, Appellants are

entitled to qualified immunity.

       Accordingly, we will reverse and remand to the District Court with instructions to

enter summary judgment for Appellants.




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