in hudson vs palmer chief justice berger reminded us that the way a society treats those who have transgressed against it is evidence of the essential character of that society this case involves allegations that mr king's constitutional rights were violated by prison officials when he was coerced into consenting to a medically unnecessary surgery to remove his penile implant is the fundamental dispute between the parties boils down to a disagreement over the meaning of consent and whether mr king has alleged sufficient facts to demonstrate a lack of security interest in this case i'd like to begin by discussing mr king allegations in the context of his fourth amendment claim because that claim provides opportunities for us to discuss both the central issues of consent as well as the purported security interest in the context of mr fourth amendment claim this court's inquiry turns on whether king alleges a justifiable reasonable or legitimate expectation of privacy that's been invaded by government action although this court has not directly address this question the fourth amendment protects prisoners bodily integrity from one reasonable intrusions and prisoners retain an interest in their bodily privacy after the hudson case based on the supreme court's decision in  fish in fact the parties here agree that the belt test for reasonableness under the fourth amendment should be applied that test requires a balancing of the need for the particular search against the invasion of personal rights that the search entailed importantly under the supreme court's decision in winston versus lee body search requires a lot more substantial justification than other searches king's allegations that he was coerced to have surgery to remove his penile implants which pose no security threat as he has alleged it are sufficient to state a claim for relief under the belt test that is plausible on its face indeed all of the vela factors except the place of the search weigh in favor of finding the search was on reasonable here looking at the scope of the intrusion it's significant the coerced surgery involved and under the skin invasion of the most private area of king's body which was cut open the procedure is far more intrusive than other procedures the courts have deemed highly invasive and unconstitutional like the forcible stomach pumping that the supreme court found it shocks the conscience and was too clore close to the rack and screwed to survive scrutiny in the procedure alleged by cain is not like the needle used to draw blood  in that claim mr cain alleges that he was discriminated against on the basis that he was perceived to be a homosexual specifically in that claim he has to show that he was treated on equally taking the inferences in his favor would tend to show that in fact there was discriminatory and specifically he first alleges that corrections staff became aware of the implants when another inmate reported that he was engaged in what appeared to be homosexual activity with another inmate but the two inmates were implanting more holes in their penises he also alleges that the forced surgery gave the impression that he had been caught in a homosexual act and that he quote had to have his marbles removed because of that act he alleges that corrections officers made quote homo sexual remarks that the record isn't entirely clear about when the comments were made certainly the initial incident with where the two men were found in the cell by staff that certainly occurred before the surgery i know that  defense argued that these comments were made post surgery in some ways that would make sense because of course he was he was placed in segregation so he wouldn't have had the opportunity to be in the general population and have initial when he was initially found in the what he describes as the homosex what was perceived as homosexual activity that was prior to the surgery that was the event where he and the other inmate were found in the cell and informed them that they had to report to medical that of course happened before he was placed in segregation that's the about that sort of kicks everything off the much of the commentary that he alleges no doubt happened after he was placed in segregation and then had the surgery but the fact that they're making those remarks i think the fair inference that can be drawn in favor of my client on this motion to dismiss is that they were they continue to display that discriminatory animus and they were motivated by that at the time you have other questions on the fourth amendment or the fourteenth i guess i will go back to my fourth amendment argument in particular i wanted to discuss with you the issue of coercion with respect to the state is attempting to justify a constitutional violation on the basis of consent it has to demonstrate that the consent was voluntarily given and not the result of duress or coercion and this standard has been applied to individuals in government custody it's a fact intensive inquiry where you look at all of the circumstances of the individual consent and in this case mr king has alleged that his consent was the result of coersion and intimidation on the part of the prison officials the courts typically would turn a critical eye towards this what actions may truly be considered voluntary when dealing with prisoners claims in this context and that's because we recognize that where prisoners freedom to act on his own and protect his own interests has been limited by his incarceration and there's a corresponding increase in the control by the state then we need to look carefully at those allegations that prisoners have been coerced in order to preserve their will here there are allegations that specifically show coercion king alleges that defendants used threats of segregation until his discharge date and physical violence to intimidate him into consenting he alleges that he was threatened specifically by deputy you were rosencrantz with segregation until he had his implants removed he alleges that defendant thompson threatened him about placement at mount claims cannot be barred by that alleged consent and that would bring me to the third factor under the fourth amendment analysis which also leads into each of his other claims and that is the lack of justification for the surgery here it's clear that king has alleged there was no medical justification for going to medical professionals a nurse at the facility and also the doctor at the hospital examined him and confirmed that the implants were not recently done and there was no infection or other medical reason to have the surgery in light of the absence of that medical justification the defendant's speculate that if they're not permitted to force surgical removal of implants like these free citizens apparently anticipating future incarceration will surgically implants i don't like razor blades handcuff keys or drugs beneath their skin according to the defendant's segregation of mr king or removal of his implants was the only reasonably available option in dealing with that security risk but contrary to their arguments king alleges facts sufficient to show there was no legitimate security interest in requiring or compelling the surgery here first king alleges he had the implants professionally inserted prior to his incarceration and that they were stimulation he specifically alleges the nature of the implants two small surgical marvels he alleges he was incarcerated for nearly a year before anyone even noticed and certainly without incident the inmate who reported king to staff specifically told them that king had implants at marbles and the two examinations by the medical professionals confirmed to us he also alleges that multiple other inmates were allowed to retain similar implants at least some of them pieces of plastic dominoes and he he it's clearly can be can inferred from the fact that he did not have access to these marbles without surgery so he couldn't use them for any nefarious purpose absent conducting surgery on himself to remove them the marbles were incorporated into and became part of his body when they were implanted  and interesting you know the defendants did not employ any other less detrimental techniques like requiring king to just simply keep the implants covered so that other inmates weren't aware of them they were if they truly were concerned that they may be keys or other metal using an x ray or other metal detection techniques to determine they were actually there wasn't any dispute about what the world was there not a doctor but they knew they were marked right and so you know it's hard to see where the alleged security justification is supposedly bringing metal or narcotics into the facility clearly that wasn't implicated in this case and that's what makes mr king no different from the other inma who had gone pieces of dominoes implanted who were allowed to retain him so based on king's allegations it's clear that the stated security interests is protection rule and while courts will defer legitimate security concerns that deference afforded to prison and ministers does not insulate them from review for actions taken and bad so as alleged in the complaint the lack of any medical or security justification weighs in favor of finding the search was on reasonable and so now unless you have further questions i'd talk briefly about the eighth amendment claim king's eighth amendment claim obviously requires that he meet both an objective and a subjective component he has to show that he was he was deprived of a basic human need that was objective least sufficiently serious and that subjectively the officials acted with a culpable state of mind objectively he has clearly alleged physical and emotional injuries that are sufficient to meet the standard and this these also weigh in the much because they show the pain and suffering that the surgery caused him he is specifically alleged that the pain and suffering was caused by the surgery and did not occur prior to the surgery and that pain and caused her to suffer nausea uncontrollable it changing and depression as well as an uncontrollable urge to mutilate herself king also alleges allegations to meet the culpable state of mind required under the subject of test a plaintiff can satisfy that standard by showing that the risk of harm that to which he was exposed was obvious and here it's clear that invasive surgery on a highly sensitive body part like that in this marbles were not recently implanted and the removal was not medically necessary and king as we have discussed has alleged that he was intentionally worst to have the surgery without justification so for those reasons king has also sufficiently alleged an eighth amendment claim  on behalf of the i am here to ask this court to affirm the district court's dismissal under twelve b six of mr king's cross a complaint that was filed under section one hundred eighty three this is a case that is not necessarily involving consent it is also not involving a right to privacy this case is very novel in its facts and very unique particularly given the circumstances allow as alleged by mr king the at how we use do not dispute that this analysis and this court's review certainly is to novo and it is certainly in to can be construed in the light most favorable to mr king and every allegation that he's asserted nevertheless this is a case involving an inmate who was convicted of an institutional violation irrespective of what mr king dao alleges in his complaint and was charged convicted and sentenced in that in as a result of the institutional violation for placing foreign objects in his penis but he didn't place the foreign objects he was in the institution on the phone the by the institutional violation was a result of mr king placing foreign objects in his penis while in the institution and that was the basis of that was the basis of the conviction and the charge in fact the charge was exposing bodily fluids there was a subsequent one smith king was taken to the hospital the doctor according to mr king's allegations as we are to assume them to be true concluded that they were not infected and did not have to be medically removed and we did not certainly dispute that they needed to be medically removed we do believe in do certainly do dispute whether there was a pen a logical interest in needing to remove contraband which was admittedly inside complaint identified in response to his grievance a response by the warden and the unit manager that did identify it as a security risk what the security risk was necessarily does not have to be identified by the jail administration for many reasons as a public public policy reason a lot of times joe administrators do not want to identify what a particular inmate or inmates could do with particular contraband does that mean you don't have to answer the question no i can i can answer the question and is that analyzed and our rational basis and there are many rational bases and it does not have to be one  one sure one could be if mr as mr king alleges he is being perceived as a homosexual or other inmates are ridiculing him it could be for his own protection to keep him from segregation from the general population to keep him in segregation for his protection that was that was upheld by this court in vieni there are interests in ensuring that individuals perceived to be homosexual are are in fact homosexual to th and all that rational it is a well that is a rational basis as this court has determined under vien the case vini where the court determined it was it was involved a homosexual inmate and he was he alleged that the homosexual population was being treated differently and the court said there are security interests that could be affected primarily the security and risk of individuals if there are for instance other inmates that will not be  there may be violence perpetrated against those individuals there are other non homosexual rational bases which i'm happy to go through have there been any manifestation of such manifestations of violence or anything to suggest that to you other than this generalized concern which i find kind of remarkable because of your knowledge that your perception that he was a homosexual was part of the motivation for your behavior not at all they're not going to start that was how did that how did you not just say that in your response because what i what my point was assuming what mr king is alleging is correct and that is no the question or will mark question my question is how are these more balls a security threat and i understood you to say they're part of the reason there are security threat is that people who  perceive he could be perceived as a homosexual subject to violence on that basis that is certainly a possibility that is one potential risk there are more compelling risks that are that have nothing to do with sexual orientation or the perception of sexual orientation which are certainly much more compelling from a kind of logical standpoint that includes introducing an individual with contraband in his body could effectively prompt other inmates to do similar to do similar conduct to engage in similar conduct and if if it is perceived by other inmates within the general population that they are entitled to do to their bodies what they will and that is outside the jurisdiction of the jail mobile that is that is that is true and of course we are still assume that is to be true however the lens of the jail officials back in two thousand and thirteen when they did this action was in response to an institutional violation that he did not appeal mr king did not appeal so he was convicted of a charge for exposing bodily fluids when he was discovered in by the officer reported that he was engaging in inserting objects into his penis and that violation and  nodding your head that we are to assume that we don't agree but of course we're we are to assume that correct and if that's what we're assuming how does the officer discover the exposure of bodily which the exposing of the bodily fluids was what he was charged with as a result of implanting objects and he was convicted and found guilty of that and sentenced institutionally by the institutional magistrate and that was not appealed now i do understand obviously there does appear to be a there is a question of fact when were the marbles implanted we are we are here to readily admit and embrace the facts as alleged by mr king that they were that he came in and was booked with marvel's implants in two thousand and eight even even assuming that's true what we need to what the court needs to look at particularly when we're you know lies in this under a qualified immunity analysis particularly because this was a this is an extremely unique scenario when a jail official or jail officials are looking at the facts and looking at what they need to do in response to an inmate who is found guilty of inserting contraband in his body what are their alternatives recognizing the right however curtailed it is but recognizing a privacy right was something that the jail in ministration did when they offered mr king to keep to stay in segregation to make sure that contraband and that the belief that or the potential perpetration of inmates ideas that they can do this when you have a policy if other people decided to do it you could punish them the doctor who evaluated king since that the marbles had not been recently implanted in there was no medical reason to remove them to the extent that you're concerned that the marbled he is having these marbles in his body would encourage objectionable behavior on  it's just the way that they if for instance if there is a it's usually in the context of either doing piercings in the jail or doing tattoos they're catching guns that are smuggled in the jails that's typically what significant deference to these jail administrators because as lay individuals we can't come we can't articulate the hundreds of ways that this could potentially cause a risk for example if in  as as your honor mentioned we have a policy that prohibits implanting contraband in a body certainly the risk though is if you then if mr king was allowed to return to the general population and speak with the other inmates were guarding what he was allowed to do and the fact that the jail was not prohibited from removing the contraband and confiscating the contraband even if the court w assume that these blasts marbles do not pose a risk although they were glass and so could technically be if you wanted to remove them could potentially serve as a weapon but there are the risk is there are other inmates that could then decide well if the jail cannot contain what i can do to my body the risk is they could decide not to put marbles next time but put something more dangerous at school moran i'm sure in order for the question the question here is how how did the officers in responding to the conviction of the institutional charge irrespective of whether we are now to believe that they were implanted in two thousand eight which the investigator the in excuse me the institutional violation was not appealed we have the officers we're looking at it through that lens and so you have an inmate who has been convicted of a felony and the determination of whether to allow him to return to the general population or not they gave him the option he did not have to have surgery he could help they can just put him in this raid of segregation until he changed his mind they would have to and you are and this is how do you define consent well consent under these particular circumstances is is a fairly low threshold because consent in this particular instance is you have a an analysis that based on the allegations as construed by mr king while he says that it was coercion understanding that certainly he did not like his alternative being in administrative segregation a ministry of segregation is a lawful option and so when you're analyzing the idea of consent the question then becomes what exactly was it that the defendants did that that were unlawful or coercive and the only thing identified by mr king is the is the the the threat or the option however it is to be characterized but certainly characterized by mr king as a threat to keep him away from the general population because he had contraband in his body and that is a lawful option it's been held lawful routinely by this court and so then even though it's still the idea of consent is he had two viable options he did not appeal on any level until after the surgery he never appealed any of these options and so you have these officers who are acting in an extraordinarily unique situation where you have not even about a body cavity search but you have the permanent implanted in an inmate what does a judge what do the jail officials do so as they are on the ground making a decision their best decision at that time due to the unique situation of exactly what happened was to give him those two options either have the removal bit well then it turned into administrative segregation to keep him ensure that the general population is not exposed to the contraband and the potential security threat that could be posed by that well the reason it couldn't be monitored in this particular situation or a reason it couldn't be monitored is because what it even even if you could monitor or marbles and assuming certainly that let's assume that the marbles themselves are not we can't contemplate a real security risk for these marbles that are implanted into a penis even assuming all of that there are other security risks that are still that are still in existence if inmates believe that other inmates could implant things into their body without repercussion without having them confiscated because if they cannot be confiscated according to jail officials when there is such thing this that you could have someone you could require someone to remove a tattoo there's no this argument chases its tail first of all i've yet to hear a legitimate security interests associated with marcus that's that's the first marbles that you can access non surgical well let me only in the only response is to say that it might encourage other people to do other things which could also be monitored well but but those other things i mean these are all the hypothetical reasons why we give jails deference those other things could be implanting even more dangerous objects they could do that anyway without mr without mr king's marks well that there would be a deterrence the jail would have a deterrence it has a deterrent because it already has a deterrence it has a policy but the policy and they can act on the policy but the policy would not allow for the contraband within somebodies body to be confiscated if it was a bobby pin or if it was a key one not because mr because they wouldn't be allowed to s wasn't implying to you in the prison which and if that's true what that means it is worst case scenario assuming that that's true which we just assuming it's true all that means is that the conviction was wrong that the convention is sort of focused on my question sure which it was and continues to be what happen as a result of not requiring forcing mr king to undergo surgery with what is the necessary parade of horribles monitor you would not be able to possibly monitor other inmates that have in their bodies you cannot necessarily because they would put it in their bodies and it may not necessarily be not already got you've already got the distinction that he came with the m things that are prohibited why can't you enforce why isn't the logical response that you can enforce your own policies because the gears the people who are doing them under your control because the inmates in jails at this has been recognised look for loopholes routinely in policies and the concern that the jail administrator staff during using their discretion and in their discretion within their discr for you could you put them in a really strait of segregation for sixty days then you still have it but the problem is you still have the individuals that have contraband in their bodies that could pose a security risk scar tissue and this is what makes it somewhat unique because i am actually speaking and we are all actually speaking in hypotheticals normally not well and the reason i say that is because the because the conviction is based  rational was reasonably based on information that was provided to the jail officials that is not necessarily in the record what's in the record is said this is all surgical procedure there is no active infection there is no medical reason for any resection on his penis to remove these objects that is not his assertion the medical evidence there has not been any medical evidence aside from his assertions because we already just twelve b six motion and so aside from the complaint and what mr king has attached to the complaint that we don't we don't yet beyond anything outside of the hospital and we do know that he didn't have the surgery when he went for the first time for why did you make him have to be concerned because we wanted to honor whatever privacy rights he would be entitled to and ensure that the at courts have held that comments like that are not themselves actionable when there is no because there is no information or allegation about the details of his parole simply  saying and this is i mean this is true when you're talking about simply a consequence i know that on the face it seems well you know you're being thrown in seg or being told you have to have surgery but when you're looking at it from a jail perspective they th officials didn't feel like obviously they didn't have any other option because two of the six was the appropriate procedural posture in which to rest i would understand that i think maybe even on the merits but i do believe that based on qualified immunity given how novel this is there is no clearly established law throughout the country that addresses the contours of the right that to segregation and whether or not they they have the right to protect the general population from the risks of inmates having contraband in their person situations as we discussed in our briefing pursuant to the supreme court's prior precedents in bell which this court applied in us vs at words in two thousand and eleven and the the wincing case which clearly addressed of surgery to attempt to find evidence a reasonable officer would have known that a wholly unjustified sexually invasive surgery would violate the fourth amendment because that is what king has alleged here there is no qualified immunity defense available at the motion to dismiss stage for these defendants unless you have further questions  complaint multiple times that the implants were in place prior to his incarceration he also alleged that he attempted to make the defendants aware of that when he was incarcerated and that the officer refused to note the implants on his records so you know at this motion to dismiss stage where we take those allegations is true the defendant's dispute about that simply isn't relevant