                                    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, and RENDELL
                   Circuit Judges


Barbara L. Herwig, Esquire
United States Department of Justice
Appellate Section, Room 7263
950 Pennsylvania Avenue, N.W.
Washington, DC 20530

Lowell V. Sturgill, Jr., Esquire
United States Department of Justice
Civil Division, Room 7241
950 Pennsylvania Avenue, N.W.
Washington, DC 20530




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Melissa A. Swauger, Esquire
Office of United States Attorney
228 Walnut Street
P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

                    Counsel for Appellants


Shemtov Michtavi
Ayalon Prison
P.O. Box 16
Ramla, 72100
Israel

                    Pro Se Appellee




                       OPINION


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




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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.

 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,




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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 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.



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




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    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)).

          A. Defining the Right at Issue

        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.

        “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

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).




                                    6
or seizure violates the Fourth Amendment is of little help in
determining whether the violative nature of particular conduct
is clearly established.”) (citations omitted). “The dispositive
question is ‘whether the violative nature of particular conduct
is clearly established.’” Mullenix v. Luna, 136 S. Ct. 305, 308
(2015) (per curiam) (emphasis original to Mullenix) (quoting
al-Kidd, 131 S. Ct. at 2084). In Mullenix, the Supreme Court
reiterated that courts are to look to the specific conduct at
issue to determine whether such conduct is clearly established
as violative of a plaintiff’s constitutional or statutory rights.
Mullenix concerned the qualified immunity defense of a
police officer who had shot and killed a suspect in a high-
speed chase after that suspect had threatened to shoot the
police officers pursuing him. See id. at 306-07. The Fifth
Circuit had defined the conduct at issue as the legality of
“us[ing] deadly force against a fleeing felon who does not
pose a sufficient threat of harm to the officer or others.” Id. at
308-09 (quoting Luna v. Mullenix, 773 F.3d 712, 725 (5th
Cir. 2014)). The Supreme Court rejected this definition,
noting that the particular circumstances of the case warranted
a more specific definition of the right at issue. See id. at 309
(“The general principle that deadly force requires a sufficient
threat hardly settles this matter.”).

        Here, 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. We find
both of these definitions of the right to be too broad, as
neither focuses on the conduct at issue. That is, neither
definition allowed the District Court to examine whether the
“violative nature of [the] particular conduct” at issue in this
case was clearly established. Cf. id. at 308 (emphasis in
original). The particular conduct at issue in this case is the




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failure to treat retrograde ejaculation which could lead to
impotence and infertility. A properly tailored definition of
the right at issue here, thus, is whether the BOP is obligated
to treat conditions resulting in impotence and/or infertility,
such as retrograde ejaculation and erectile dysfunction.

   B. Determining Whether the Right at Issue is Clearly
      Established

        In determining whether a properly tailored definition
of the right at issue is clearly established, the Court must
consider whether “existing precedent [has] placed the
statutory or constitutional question beyond debate.” Id.
(quoting al-Kidd, 131 S. Ct. at 2084). 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 (2015)). Thus, Barkes makes
clear that there must be precedent indicating that the specific
right at issue is clearly established.




                               8
        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 treatment for conditions resulting in
impotence and/or infertility, such as retrograde ejaculation or
erectile dysfunction, Appellants are entitled to qualified
immunity.




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III.   Conclusion

        Accordingly, we will reverse and remand to the
District Court with instructions to enter summary judgment
for Appellants.




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