F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

C L I F F O R

D G E O R G E , Plaintiff-Appellant
,

v

.

T H O M A S W

. E D H O L M , individually in his capacity

as an M.D.; G R

E G F R E E M A N , individually

in his capacity as a PD Officer; Dary

ll J ohnson, individually

in his capacity as a PD Officer,

Defendants-Appellees

. N o. 11-57075

D.C. No. 2:06-cv-00200- GW -AJ W

OPI NI ON

A ppeal from the United States District Court for the Central District of California Georg e H. W u, District J u d g e, Presiding

Arg ued and Submitted J u ne 4, 2013—Pasadena, California

F iled May

28, 2014

B efore: Kim McL ane W ardlaw and W illiam A. F letcher, Circuit J udg es, and B arbara M. G. L y n n, District J udg e. *

Opinion by

J udg e W

. F letcher

* T h e Ho n orab l e B arb ara M. G. L y n n , District J u d g e f

o r th e U.S. District Co u rt f o r th e No rth ern District o f T ex as, sittin g b y

d esig n atio n

.G E O R G E V

. E D H O L M 2

SUMMARY * *

P risoner Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judg ment and remanded an act i o n broug ht pursuant to 4 2 U .S.C. § 1 983 alleg ing that police officers, a doctor, and two nurses violated plaintiff’s r i gh t s u nder the F o u r t h a n d F ourteenth Amendments when the doctor, forci b l y and without consent, r emoved a plastic bag g ie c ontaining cocaine base from plaintiff’s rectum.

Reversing the district court’s summary judg ment in favor of the police o fficers on the F ourth A men d m e n t c laim, the panel first held that the doctor’s c o nduct could be a ttributed
to the p olice officers because a reasona b l e j u ry could conclude that the officers g ave false inform a t ion about plaintif f ’ s medical condition to the hospital staff and to the doctor with the intent of inducing the doctor t o p erform an invasive search. The panel then held that based on the f actors set f orth in W inston v

. Lee
, 470 U.S. 75 3
, 7 5 9 –60 (1985), a jury could conclude the procedures perform e d by the doctor violated the F o urth Amendment. T he panel further h e ld that the police officers were not entitled to qualified immunity on the F ourth Amendment claim.

The panel affirmed the d istrict court’s summary judg ment in favor of defendants on plaintiff’s separate F ourteen t h Amendment claim which w a s b a s e d on his rig ht to refuse

u n w anted medical treatment. The panel determined that it

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.G E O R G E V

. E D H O L M 3

could not say that “every reasonable o fficial” would have known the procedures p e rformed by the doctor violated the F ourteenth Amendment and therefore defendants w e re entitled to qualified immunity

. F inally
, the panel declined to address issues related to the liability of the doctor w ho performed the procedure, stating that the district court could do so on remand.

COUNSEL

Michael B

. K im b e rly (arg u ed) and Charles Alan Rothfeld, May er B rown L L P, Washing ton, D.C., for PlaintiffAppellant.

Thomas W

. Edholm, pro se, Redding , California.

R og er A. Colvin and Sharon Apodaca (arg ued), Alvarez

Glasman & Colvin, City o f I ndustry
, California, for Defendants-Appellees.G E O R G E V

. E D H O L M 4

OP INION

W

. F L ETCHER, Circuit J udg e:

Clifford G eorg e appeals a g rant of summary judg ment to Pomona Police O fficers Greg F r ee m a n and Dary ll J ohnson. Acting p ro se, Georg e sued F reeman, J ohnson, and a medical doctor and two nurses under 42 U.S.C. § 1983, alleg ing that they viol at e d his rig hts under the F ourth and F ourteenth Amendments when the doctor, forcibly a nd w ithout consent, removed a plastic b ag g ie containing cocaine base from Georg e’s rectum. W e reverse in p a r t , a ffirm in part, a nd remand for further proceeding s.

I . B ackg round

A. F actual Summary

According to a police report w ritten by Officer F reeman,

on March 13, 2004, Georg e and another man were standing in the front courty ard of an apartment co m p l ex in Pomona, California. F reeman and his partner were patrolling the area, which they knew to be a hang out for g ang members and d rug dealers. T hey spotted the t w o men, g o t out of their police cruiser, and approached them. Georg e started to run “towards the f r o nt g ate, as if he was g o ing to flee.” F reeman ordered Georg e to stop, and Georg e complied. Georg e told F reeman he was on parole for an armed robbery conviction.

Of ficer F reeman and two other o f ficers conducted a parole search of G eorg e’s apartment. I nside, they encountered Georg e’s b r o t h er, J eremiah Eng lish. F reeman fo u n d a .380-caliber semi-automatic pistol in a hallway closet. F reeman arrested Georg e for violating his parole b yG E O R G E V

. E D H O L M 5

living in an a

partment w ith a firearm, Eng lish for being a g ang member with a f

irearm, and G eor g e’s companion for loitering

. F reeman and his p artner took all three men to the Pomona city

jail.

F reeman and J ohnson took Georg e to the “strip tank” for

a s t r i p s e arch. F reeman wrote in his report that Georg e removed his clothes, but “whe[ n] we asked him to turn around, he immediately started shaking and went to the
g round as if h e was possibly having a seiz ure.

. . . [ W ] hen he

was on the g round with his rig ht hand he reache d u n d e r his body and started pushing his fing er in his anus attempting to conceal an item, of what appeared to be some plastic bag g ie. Due to my tr a i n ing and ex perience in the field of narcotics,
my self and Corporal J o h n s on believed it was a bag o f cocaine.”

Officer F reeman testified in his deposition that he did not believe that Georg e w as having a seiz ure, “[ b ] ecause he was concealing the narcotics or cocaine that we recovered out o f his rear e nd.” F reeman estimated that h e h ad encountered “similar scenarios

. . . where someone un d e r go i n g a strip search either faked a seiz u re or attempted to conceal thing s in their rectum during the strip search

. . . f ive times — four to f ive times.” Officer J ohnson testified similarly in his deposition. He testified that in his ex perience it is “very

common f

o r people to carry [ crack cocaine or other contraband] between their butt cheeks.” He did n ot believe Georg e wa s h a v i ng a seiz ure. Rather, h e believed that Georg e “was faking having a s e iz ure to cover

. . . up” his attempt to c onceal a plastic bag g ie of cocaine base in his anal cavity

. He testified, “ [I ] t was obvious to me that that whole fake medical situation was a distract i o n so he could shove a bag g ie in his anus.”G E O R G E V

. E D H O L M 6

An unspecified person at the jail called f o r p a ramedics. Georg e t e s t ified in his deposition that “F reeman k ept hollering [ to the p ar amedics]
, y elling that I swallowed something and he stuck something up his anal and w e need to g et it out.” Officer F reeman t estified, “I think I told [ the paramedics] that he — that he p ossibly had a seiz ure and that

we needed to g et h im medically cleared for booking .” He testif i e d further that the paramedics took Georg e to the hospital “to save his life.” Officer J ohnson t e s t i f i ed differently

. W hen a sked if “ t h e r e was any thing medically
wrong ” with Georg e w hen he t o o k him to the hospital, J ohnson answered, “I did not think so.” H e t e s t ified that he

a n d a n o t h er officer took G eorg e to the hospital in a police vehicle. Hospital records state that police o fficers took Georg e to the h ospital, and that Georg e was in p olice c ustody when he arrived. J ohnson testified that F reeman came to the hospital sometime later. However
, G eorg e testified that “F reeman and J ohnson took me to the hospital.”

F r eeman was asked about o ther instances in which a person was taken to the hospital because of c o c ai n e base concealed in the rectum. He responded:

Specifically
, I remember a doctor had one on

a Porta-Potty

. Another one, I beli e v e the d o ctor h ad to g ive him a sedative or

s o m ething to relax the body

. . . . I thin k t h e doctor used forceps to pull it o ut of his
rectum.

I n the instance where forceps were used, F reeman did not say whether the person had consented to the procedure. F reeman did not describe any case in which th e p e r s o n had been intubated or had his bowels evacuated.G E O R G E V

. E D H O L M 7

J ohnson testified that on “six or eig ht” previous occasions he transported to the hospital p eo p l e w h o had inserted into their rectums bag g ies containing cocaine. He testified:

I know, in some instances, they were g iven

some ty p e of a pill or a d r ink, may be a lax ativ e o f some ty

pe. On another occasion, there was a lax ative like a suppository

. Another time I waited in the i n t e n sive care

u n it with somebody that had cocaine in their rectum, and it was all up to the doctor.

J ohnson testified that in all but one of the instances, the bag g ie was intact w hen it emerg ed

. J o h n son described the

one instance in which the bag g ie had not been intact. I n that instance, the p erson had b een taken to intensive care because of a hig h heart rate. At one poi n t , J ohnson and another officer had actually seen, “barely protr uding ,” the “ clear plastic and the actual white cocaine,” but by the time they g ot to the hospital it was no long er visible:

The doctor u sed a ty

pe of scope. I believe the person’s heart rate was very h i gh and the doctor couldn’t find it, and we told him that

we had actually seen it, the b oth of u s. And

so I b elieve the doctor was — had him taken
up to I CU because o f his heart rate , and he

was monitored. H e was g iven suppository or, y ou k now, some ty

p e o f lax ative, a

nd eventually the lax ative worked and the bag g ie of cocaine was recovered.

The recovered bag g ie was not intact when J ohnson saw it, but he testified, “I don’t k

now if it came out not intact or if it wasG E O R G E V

. E D H O L M 8

ripped by the suspect.” W h en asked if any of the six or eig ht people had the c o caine “removed s u r gically ,” J ohnson answered, “No, I h ave n ever seen that.” B ut he h a d seen “some ty pe of device,” which he d escribed as “not r e a l ly forceps,” used to pull out a bag g ie or bag g ies.

Acting pro se, Georg e sent Requests for Admission to Officers F reeman and J oh n s o n

. T hey provided identical

answers to a Request concerning the paramedics’ evaluation. They both wrote, “The L os Ang eles County F ire Department Paramedics informed me that plaintiff was not h a v i ng a seiz ure.” I n h is deposition, F reeman backtracked f r om this

answer. I n response to the ques t i o n , “Did the paramedics
convey to y ou any inform a t i on about Mr. Georg e’s medical condition? ” F reeman testified, “I d o n’t remember a ny thing specifically .”

Officers F reeman and J ohnson both answered “Admit” to the following Request: “Admit that, when y o u arrived at said medical hospital, y ou informed D r. Edholm
, ( t he treating [ doctor] ,) that plaintiff appear[ ed] to h a ve swollen some drug s and/or that there may be some in h is rectum.” I n their depositions, they both backtracked. D u r ing F reeman’s deposition, the following ex chang e occurred:

Q: You didn’t say

— y o u didn’t tell any o ne any thing about him swallowing d rug s throug h his mouth?

. . .

A: I don’t remember tellin g a n y body about
any thing

. . . .G E O R G E V

. E D H O L M 9

. . .
Q: As y ou sit here today
, do y ou recall telling Dr. Edholm that t h e p atient may have — o r that Mr. Georg e may have swallowed some drug s or “swollen,” any sort of variation o f that word?

A: No.

J ohnson testified, “I don’t recall ever say ing so m e t h i n g like ‘swo l l e n ’ or ‘ swallowed drug s.’ I don’t recall that in this incident.”

H o s p i t a l records indicate that the “police department” t o l d intake p ersonnel that Georg e had swallowed cocaine, had put cocaine into his r ectum, a n d had possibly had a seiz ure. The hospital’s Emerg ency Department Triage R ecord, filled out when G eorg e arrived at the hospital, state d
, “ Per P.D: pt. ing ested cocaine & put some into his rectum. Possibly had a seiz ure.”

Officer J ohnson testified that Georg e was taken to a room at the hospital, placed on a g u rney , and restrained with straps. He testified t h a t nurses initially evaluated Georg e, and that Dr. T homas Edholm, an emerg ency -room phy sician, arrived a short time later. Georg e wrote in his verified complaint:

The defendant Edholm was then informed b y the defendant’s [ sic] J ohnson & F reeman, that there ex ist a medical emerg e ncy

. . . that pl a intiff may have swallowed d rug s. “W e need it out now.”G E O R G E V

. E D H O L M 10

An intake form lists Georg e’s blood p ressure a s 180/108, his pulse as 108, his respiratory rate a s 18, his temperature a s 98, and his condition as “ stable.” The hospital’s triag e record, prepared at roug hly the same time, lists his breathing

as normal and d escribes him as “ [ a] lert and oriented x 4” (the hig hest level). The h o s p i t al discharg e report, sig ned by Dr. Edholm at Georg e’ s release, shows G eorg e as having h ad blood p ressure of 180/115, a pulse of 120, r espiratory rate o f 18, and a temperature of 98. I n his deposition
, E d h olm described these numbers as “severely hig h” and “consistent with cocaine tox icity .”

Georg e testified that D r. Edholm initially tried to remove the plastic bag g ie by inserting his fing ers in Georg e’s rectum. Georg e recounted:

The doctor came i n a

nd say , hey
, what’s the problem.

F reeman k ept stipulating we think that he took s o m ething and we think he shoved something up his a- s

- s a n d the doctor put

— they put me on the table.

. . . I was lay ing there naked and the doctor said lift him up

. . . so the officers came and they held m e d o wn and then the nex t thing y ou know I see the d octor he put on

. . . this g love and put som e ty pe of g e l or w hatever

. . . and

. . . he stuck his fing ers his hands up my butt.

. . .

He went up in me and it h urt.

. . . I y e lled I said why are y ou doing this? Y ou can’t doG E O R G E V

. E D H O L M 11

this. You’re battering me. You can’t d o this I k ept telling him and F reeman kept openi n g his mouth, too, telling the doc tor like, y ou know, G oddamn it, I know that he’s g ot it, so h o l d h im down so they held me down a nd then the nex t thing y ou know this doctor said, hey
, this is not g oing to work.

. . .
[ The officers] were holding my leg s down.

. . .

The police o f

ficers

. . . flipped me over. They said roll him over, because that nurse she was too b u s y holding that I V in my

arm . . ., and I

kept telling them what are y ou doing this for, an d a s soon as he stuck his thing up my a s s a n d I was screaming I was hollering because it hurted.

. . . I mean he h ad his h ands rig ht up my rect u m and never h ad
t h at before, ma’am, y ou understand, and tha t violated me and I was, y o u know, I just never had any body g o up in me like that, ma’am.

Georg e was asked at the deposition if he remembered either of the officers telling Dr. Edholm w hat t o d o

. He responded, “All I know is I h ear F r eeman tell him that y ou need to g et this out of his ass. He’s g ot something up his ass, Goddamn it, I know he d o e s

. ” He reiterated later that F reeman said, “I know he’s g ot something up his ass

. Y ou

ne ed t o g et that out. I know h e does.” F reeman denied having said that:G E O R G E V

. E D H O L M 12

Q: At a

ny point, did y ou tell Dr. Edholm that
y ou needed the cocaine out now?

A: No. He would have laug hed at me.

F reeman testified that he d i d not remember holding Georg e down: “I f I would have, I would have remembered.” J ohnson testified that he did not recall holding Georg e down or turning him onto his side.

Georg e testified that Dr. Edholm told him that he would be sedated: “[ H] e ex plained to me

. . . we’re g oing to paraly z e y ou.” Georg e testified:

I was

. . . looking at this doctor what he’s
g oing to d o , because I didn’t know what he

was g oing to do and kept g etting all these big clamps, I seen these big cla m ps and I kept asking
, y ou k

now, I remember one of th e officers ask i n g

. . . . He say s, well, we’re
g oing to open u

p his r ectum w ith this. That’s when I just g ot hy sterical.

Georg e testified that, when he reg ained awareness, he

woke up on my back with a big tube down my mouth and stuff kept coming out of me out o f
my anal. They had a big plastic bag I remember o n the bed an d w h a tever that was inside of me was flush i n g stuff throug h my stomach coming out of my anal an d I remember a lot of stuff, water coming out o f
my buttock, my

anal.G E O R G E V

. E D H O L M 13

. . .

And then I ’m still there w hatever they ’re doing f lushin g m e out I ’m just lay ing there and just I was so mad

. . . because what t h e y had done to me and all I jus t s e en was just blood on that bed and every thing and my anal hurting so bad because I

was bleeding

a lot.

He testified that h e w as still bleeding when he was discharg ed from the hospital, w earing his jail jumpsuit: “I was hurting bad, ma ’am. And even throug h that jumpsuit I was still bleeding I was bleeding

so bad.”

Dr. Edholm testifi e d in his d eposition that he had no specific recollection of tre ating Georg e. He testified solely based on notes he had dictated after treating Georg e, which

w e re contained in Georg e’s discharg e report. Edholm recounted that he was able to feel “ a plastic ty pe of material” in Georg e’s rectum, but Georg e’s resist a n c e prevented him from removing it by hand. Edholm then eng ag e d in w hat he called “ag g ressive manag ement.”

Dr. E dholm testified that a nurse sedated Georg e

. Edholm then inserted a metal anoscope into Georg e’s rectum. He stated that throug h the anoscope, he and one of the police officers viewed a g olf b all-siz e d bag g ie filled with white material. Edholm removed the b ag g ie with long forceps a nd
g ave it to the officer. The plastic bag g ie was intact.

Dr. Edholm then intubated Georg e and in s e rted a tube throug h his nose into his stomach. Throug h the tube, Georg e

was g iven one g allon of a liquid lax ative called GoL YTEL Y
,G E O R G E V

. E D H O L M 14

which, according to Edholm, “flushes and washes every thing out of y our intestines completely .”

D r. Edholm testified that his treatment of Georg e “ w a s based on the information from the police and the nurses a nd his phy sical evidence of c ocaine tox icity .” This information led him to conclude that G eo r ge ’s life was in dang er. He

ex p lained, “I f a p a t i ent has e vidence of a life-threatening condition, w e h a v e t o

. . . ag g ressively treat it.” Edholm stated the b asis for his c onclusion was “[ t] he e levated blood
pressure, pulse, history of h av i n g a seiz ure. I f y ou have a seiz ure from cocaine, it’s u sua l ly associated with severe tox icity

. ” Edholm believed that Georg e had ing ested cocaine based on the medical history taken by a nurs e a n d recorded

o n the triag e r ecord. I n his deposition, he read a lou d t h e nurse’s note on the record, say ing
, “ [ p] er PD, patient ing ested cocaine.”

I t is undisputed that Georg e did n ot c onsent to any of the medical p rocedures. Dr. Edholm ackn o w l e d g ed in his deposition that the procedures requi r e d patient consent a nd said he acted “ wi t h out [ G eorg e’s] compliance.” Edholm testified that, a s an emer ge n cy doctor, he does not routinely seek patient consent: “I t’s an emerg e ncy , so I don’t routinely ask patie nts for consent.” I n his v iew, the “admissions staff [ was] responsible for obtaining patient consent.”

L ater testing showed that the intact p l a s tic bag g ie removed from Georg e’s rectum containe d a b o ut 8 .99 g rams of cocaine base. Georg e was c harg e d with possession o f cocaine base for sale in violation of California H e a l t h & Safety Code § 11351.5. He p l e d no contest to the offense. He is currently serving an eig ht-y ear prison term. DefendantsG E O R G E V

. E D H O L M 15

in this case have made n o arg ument based on H ec k v

. Humphrey , 512 U.S. 477 (1994).

B

. Procedural History

Georg e b roug ht suit under 42 U.S.C. § 1983 a ga i nst Officers F reeman and J ohnson, Dr. Edholm, and two nurses. He a lleg ed violations o f the F ourth and F ourteenth Amendments b ased on his initial detention, the search of his apartment, and his treatment at t h e h ospital. See G eorge v

. Edholm
, 410 F

. A pp’x 32, 3 3–34 (9th Cir. 2010). Neither Edholm nor the nurses answered the complaint.

The district court g ranted summary judg ment in favor o f Officers F reeman and J ohnson. I t dismissed with prejudice Georg e’s claims ag ainst Dr. Edholm a nd the nurses because they had not been served. Id. On a p p eal, we affirmed
summary judg ment a s to Georg e’s clai m arising out of his initial detention. Id. at 34. We al so affirmed summary j u d gment in favor of the nurses. Id. W e reversed a nd remanded as to the remainder of Georg e’s clai m s

. I d. at 33

– 3 4

. W e held that Georg e should have been allowed to withdraw his deemed admissions d uring discovery
, h e ld that his sworn complaint should serve as an affidav i t , and instructed the district court to allow G eorg e to perfect service on Dr. Edholm. Id. at 33–34 & n.1.

O n r emand, Georg e, now represented by pro bo n o counsel, served the complaint o n Dr. Edholm. Edholm still has not answered. After limited d iscovery
, Officers F reeman and J ohnson ag ain m o v e d for summary judg ment. The district court g ranted the motion. The court believed that its ruling
, if correct, would resolve Georg e’s claims against Edholm. To take care of the “technicality ” of Edholm’sG E O R G E V

. E D H O L M 16

failure to appear, the court sug g ested that Georg e voluntarily dismiss Edholm without p rejudice. B efore Ge o r g e filed a voluntary dismiss a l
, t he court entered a final judg ment dismissing Georg e’s c o mplaint in its entirety

. The following day , Georg e filed a voluntary dismissal as to Edholm.

G eorg e timely appealed. He appeals only the g rant o f
summary judg ment o n his claims arising out of his treatment at the hospital.

I I . Standard of Review

W e review de novo the district court’s g rant of summary judg ment. Bagdadi v. Nazar
, 84 F.3d 1 194, 1197 (9th Cir. 1996). W e must determ ine, “viewing the evidence in the lig ht most favorable to the n onmoving party , whether g enuine issues of material fact ex ist.” I d

. W e will affirm only if no “reasonable jury viewing the summary judg ment record could find by a preponderance of the evidence that the p lain t iff is entitled to a favorable verdict.” Narayan v

. EGL, Inc.
, 616 F .3d 895, 899 (9th Cir. 2010). “I f a rational trier of fact could resolve a g enuine issu e o f material fact in the

n o n m o v i n g p a r t y ’ s f

a v o r , ” s u m m a r y j u d g m e n t i s inappropriate. Bravo v. City of Santa M aria
, 665 F

. 3d 1076, 1083 (9th Cir. 2011). “[ C] r edibility determ inations, the weig hing of the eviden c e , and the drawing of leg itimate inferences from facts are jury functions, not those of a judg e.” Id

. (quoting Nelson v. City of D avis
, 571 F .3d 924, 927 (9th Cir. 2009)).

W e also review de novo the district court’s ruling on qualified immunity

. Fu r n a c e v. Sullivan
, 705 F .3d 1021, 1026 (9th Cir. 2013). At t h e summary judg ment stag e, we ask whether the facts, “[ t] aken in the lig ht most favorable toG E O R G E V

. E D H O L M 17

the party asserting the injury ,” show that the officers v iolated

a constitutional rig ht. Saucier v

. Katz
, 533 U.S. 194, 201 (2001), overruled in part on other grounds by P e a r s o n v

. Ca l lahan
, 555 U.S. 2 23 ( 2009). I f the officers v iolat e d a constitutional rig ht, we d e termine de novo “whether federal rig hts asserted by a plaintiff were clearly established a t the time o f the alleg ed violation.” Martinez v. Stanford
, 323 F .3d 1178, 1183 (9th Cir. 2003).

I I I

. Discussion

Georg e claims that the conduct o f Officers F reeman a nd J ohnson, and the treatment a dministered by Dr. Edholm at the hospital, violated his F ourth Amendment rig ht to be free from unreasonable searches, as well as his F ourteenth A mendment rig ht to refuse medical trea t m ent. The district court g ranted
summary judg ment to F reeman and J ohn s o n on the g r ound that Edholm a cted as a private citiz en w h o s e c onduct could
not be imputed to F reeman and J ohnson. T h e d i strict court f u r t h e r held that even if F reeman and J ohnson violated Georg e’s constitutional rig hts, they were entitled to qualified immunity

.

A. State Action

The district court held as a matter of law that Dr. Edholm’s conduct could not be a ttributed to the state. W e disag ree.

Georg e does not dispute that D r

. Edholm is a private citiz en whose c onduct ordinarily would not be attributable to the state. See Brunette v

. Humane Soc’y of Ventura Cnty.
, 294 F .3d 1205, 1209 (9th Cir. 2002). Private a ction may be attributed to the state, however
, i f “ there is such a ‘closeG E O R G E V

. E D H O L M 18

nex us b e t ween the State and the challeng ed action’ that seeming ly pr ivate behavior ‘may be fairly treated as that o f the State itself.’” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n
, 531 U.S. 288, 295 (2001) (quoting Jackson v

. Metro. Edison Co.
, 419 U.S. 345, 351 (1974)). Such a nex us may ex ist w hen, for instance, private action “results from the State’s ex ercise of ‘coerc i v e power,’” or “when the State provides ‘sig nificant encourag e ment, e ither overt or covert,’”
to the private actor. Id. at 2 96 (qu o t i n g Blum v. Y aretsky
, 457 U.S. 991, 1004 (1982)).

Police o fficers may not a void the requiremen ts of the Fourth Amendment by inducing
, coercing
, p romoting
, or encourag ing private p arties to perform searc hes they would
not otherwise perform. See United States v

. Re e d
, 15 F .3d 928, 932–33 (9th Cir. 1994); see also Mendocino Envtl. Ctr.

v. Mendocino Cnty.
, 192 F .3d 128 3
, 1 3 0 1 (9th Cir. 1 999) (allowing a finding of state action w here a jury c ould find that actions w ere “unlikely to have been undertaken” without state encourag ement (internal quotation marks omitted ) )

. The Supreme Court has stated, “[ I ] t is

. . . ax iomatic t h a t a state may not induce, encourag e or promote private persons to accomplish w hat it is co n stitutionally forbidden to accomplish.” N

o r w ood v

. Harrison
, 413 U.S. 4 55, 465 (1973) (internal quotation marks omitted). A private party ’s search may be attributed to the state when “the private party acted as a

n instrume n t or ag ent o f the Government” in conducting the search. S kinner v. Ry. Labor Execs.’ A ss’n
, 489 U.S. 602, 614 (1989); Reed
, 15 F .3d at 931; United States

v. W alther
, 652 F .2d 7 88, 791 ( 9 th Cir. 1981). Police officers
may be liable for a private p a r t y ’ s search when the police “ordered or w ere complicit in the search[ ] .” United States v

. Sparks
, 265 F .3d 825, 831 (9th Cir. 2001), overruled on other grounds by United S

tates v

. G r i s el
, 488 F .3d 844 ( 9th Cir.G E O R G E V

. E D H O L M 19

2007) (en b anc); s e e also United States v. Ziegler
, 474 F .3d 1184, 1188, 1190 (9th Cir. 2007) (finding state action where

a n FBI ag e nt told a private employ er to make a c opy of i t s

em ploy ee’s computer files); Dyas v. Superior Court
, 5 22 P.2d 674, 677 n.2 (Cal. 1974).

A reasonable jury c o u l d conclude that Officers F reeman and J ohnson g ave false information about Georg e’s medical condition to t h e hospital staff and to Dr. Edholm, with the intent of in d u ci n g Edholm to perform an invasive search. There is e viden ce i n the record showing that F reeman a nd J ohnson knew that Georg e did not have a seiz u re. They both admitted in response to written requests f rom Georg e that the paramedics told them that G eorg e had not had a seiz ure, a nd they both testified in their depositions that they bel i e v e d Georg e was faking a seiz ure. There is evidence in the record showing that neither F r eeman nor J ohnson believed that Georg e had swallowed any cocaine. They both denied telling
any one that he had done so. B u t the hospi t a l triag e record indicates that hospital staff had been t o l d b y police (“per P.D.”) that, in addition to inserting cocaine i n t o his rectum, Georg e h ad a lso ing ested cocaine a n d had possibly had a seiz ure. Georg e specifically stated that h e heard F reeman tell Edholm that Georg e had swallowed coca i n e. There is evidence in the record t hat the information that Georg e h ad ing ested cocaine and had possibl y had a seiz ure led Edholm
to perform a more invasive search than he otherwise would have. Edholm testified that his decision to tr e at Georg e ag g r essively was based in p art on that inform a t i o n. F inally
, there is evidenc e i n the record that F reeman and J ohnson phy sically assisted Edholm by turning Georg e on th e table and holding his leg s, and that F reeman e mphasiz ed to Edholm the n ecessity for prompt a c tion in removing the cocaine from Georg e’s rectum.G E O R G E V

. E D H O L M 20

There is, of cour s e , contrary evidence. F reeman backtra cked from his response to Georg e’s Request for Admissi o n , c l aiming in his deposition that he did not recall the paramedics say ing t h a t Georg e did not have a seiz ure. F r eeman and J ohnson both backtracked from their admis s i o n s that “plaintiff appear[ e d] to have swollen [ sic] some drug s.” F reeman stated in h i s d eposition, “I don’t remember telling
any body about any

thing .” J ohnson stated, “I don’t recall ever say ing something like ‘swollen’ o r ‘swallowed drug s.’” These statements, if believed, w ould tend to show that neither F reeman nor J o hnson was the source of the false information in the h ospital’s triag e record

. Fu rther, F reeman denied telling Edholm to take the cocaine o ut of Geo rg e’s rectum, and F reeman a

nd J o h n son both stated that they could not remember turning

and holding Georg e down in the hospital.

H o w ever, a reasonable jury would not be required t o believe any of the contrary evidence just described. I nstead, it could b elieve the evidence favorable to Georg e. B ased on this evidence, a reasonable jury could find that F reeman a nd J ohnson provided “sig nificant encourag e ment, either overt o r covert,” to D r. Edholm, Brentwood Acad.
, 5 31 U.S. at 295, and that they “ induce[ d]
, encourag e[ d ] or promote[ d] ” Edholm to do what he would n ot otherw i s e have d one, Norwood
, 413 U.S. at 4 65; see Reed
, 15 F .3d at 932–33, such that Edholm’s actions are attributable to the state.

To h old Dr. Edholm personally liable as a state actor, Georg e must establish not only that Edholm was i nduced to act as he did, b ut also that Edholm intended to assist F reeman and J ohnson in obtaining evidence for their investig ation. See United States v. Attson
, 900 F .2d 1 427, 1433 ( 9th Cir. 1 990) (holding that “a party is subject to the [F ] ourth [ A] mendment only when he or she has formed the n ecessary intent to assistG E O R G E V

. E D H O L M 21

in the g overnment’s investig ative or adminis t rative functions”). W e h old o n l y t hat Edholm’s actions could be attributed to the state, based on our h olding that a reasonable jury could conclude that F reeman and J ohnson provided false information, encourag ement, and active phy sical assis t a n ce to Edholm. W e do not reach the different question w h e ther

a jury could conclude that E dholm is himself liable under § 1983. See Harvey v. Plai n s Twp. Police Dep’t
, 421 F .3d 185, 196 n.13 ( 3 d C i r

. 2005) (noting that even if a private
actor cannot b e liable “simply because she is co m p e l l e d to take an action by a state actor,” it is “entirely proper to find that the state actor eng ag ed in state action, including whatever

a c tions the private party was compelled to undertake”); see also United States v. Booker
, 728 F .3d 535, 540 (6th Cir. 2013) (“W hen police officers bring a suspect in custody to a purportedly independent actor, and s t a n d by without interfering while the actor unlawfully batters the subject in a way that the police clearly could not, it can hardly be arg u ed that resulting evidence is admissible.”).

B . F ourth Amendment Claim

1. Reasonableness of the Search

B e cause w e h o ld that Officers F reeman and J ohnson could be held responsible for the procedures p e r fo rmed b y Dr. Edholm, w e now turn to the q uestion whether, taking the fa c t s i n t he lig ht most favorable to Georg e, this search was unconstitutional. See Saucier , 533 U.S. at 201.

The F ourth Amendm e n t requires that a nonconsensual phy sical search o f a suspect’s body
, li k e a ny other

n onconsensual search, be reasonable. See W inston v. L e e , 470 U.S. 7 53, 759–60 (1985). A body search, however,G E O R G E V

. E D H O L M 22

r e q u i r e s “a more substantial justification” than other searches. Id. at 767. I n W

inston
, the Supreme Court rejected the state’s request for a court order requiring a suspect t o u n d e rg o

su rg ery to remove a bullet from the suspect’s chest. Id. at 755. I n ho l d i n g t hat the forced surg ery would be unconstitutional, the Court identified three primary f a ctors courts should w eig h in deciding the reasonableness of a body search. Those factors are (1) “the ex tent t o which the procedure may threaten the safety or health of the individual,” (2) “the ex tent of intrusion upo n t h e individual’s dig nitary interests in pe r s o nal privacy and bodily integ r ity
, ” a nd ( 3) “ the c ommunity ’s interest in fairly and accurate l y determining g u ilt or innocence.” I d. at 761–62. The failure
to obtain a warrant, w hile n ot necessarily fat a l t o a c laim o f reasonableness, is also relevant. See id. at 761; United States v. Cameron , 538 F .2d 254, 259 (9th Cir. 1976).

The foundational case is Rochin v. Ca l i f o rnia
, 342 U.S. 165 (1952), in which police officers entered Rochin’s h ouse and saw him swallow two capsules of morphine. Id. at 166. The officers took Rochin to a hospital, where “ [ a] t t he direction of o ne of the officers a d o c t o r forced an emetic solution throug h a tube into Rochin’s stom a ch a g ainst his will.” Id. Rochin vomited up the morphine capsules, which the prosecution then introduced as evidence at trial. Id. The Court reversed, holding that the f o rcible sto m a c h-pumping “shock[ ed] the conscience” and was “ too close to the r ack a nd the screw” to s u r v i v e constitutional scrutiny

. Id. at 172. Thoug h Rochin was d ecided under the Due Process Clause o f the F ourteenth Amendment, the Court has made cl e a r it would now “be treat e d u n der the F ourth Amendment, albeit with the sam e result.” Cnty. of Sacramento v. Lewis
, 523 U.S. 833, 849 n.9 (1998).G E O R G E V

. E D H O L M 23

Analy z ing the W

inston factors in lig ht of Rochin
, we hold that there is evidence in the r ecord, viewed in the lig h t most favorable to G eorg e, that would support a f i n d i n g that Officers F reeman and J ohn son violated Georg e’s F ourth Amendment rig hts. W e address the W inston factors in turn.

F ir s t , t h e dang er to G eorg e’s health and safety f r om the procedures performed in the h ospital a ppears to have been slig ht, thoug h not nonex istent. Neither Georg e n o r t he officers have provided evidence of the g eneral risks (or lack thereof) of sedation, a noscopy , intubation, and bowel evacuation. Georg e testified, h o wever, that the anoscopy caused him sig nificant pain and a nal bleeding that continued after he left the hospital.

Second, the “intrusion upon [ Georg e’s] dig n i tary interests in personal privacy and bodily in t e g rity ” was ex treme. W inston
, 470 U.S. at 761. Edholm sedated Geo r ge

. He opened Georg e’s anus w ith an anoscope and i n s e rted long f o r ceps into Georg e’s rectum. He inserted a tube into Georg e’ s n ose, ran the tube into Georg e’s stomach, a nd pumped a g allon of liquid lax ativ e t hroug h Georg e’s dig e stive
sy stem, trig g ering a complete e vacuation of Georg e’s b owels. W h en Georg e reg ained consciousness, the bowel evacuation

was still in p r o c e s s. Georg e did not consent to any of these procedures. The offi c e r s n e ither had a warrant authoriz ing these procedures nor attempted to g e t one.

These pr o cedures were “hig hly intrusive a nd humiliating .” Tribble v. Gardner
, 8 60 F .2d 321, 324 (9th Cir. 1 988). The search invaded Georg e ’s anus and n ostr i l s , a s well as his throat, stomac h
, and intestines. The anoscopy “targ eted an area of the body that is h ig hly persona l and private.” United States v. Gray , 669 F .3d 556, 564 (5th Cir.G E O R G E V

. E D H O L M 24

2012), v a c a t e d on other grounds
, 133 S. Ct. 1 51 (2012). F orced sedation, anoscopy , intubation, and bowel evacuation

are more invasive than the stomach-pumping t h a t Rochin described as “close to the rack and screw.” 342 U.S. at 172; accord United States v. B ooker
, 728 F .3d 535, 545 (6th Cir. 2013). I f Georg e’s evidence is believed, the procedures were performed d espite his vociferous protests and withou t

ex p lan a t i on, consultation, o r other “reasonable steps to mitig ate [his] an x i ety , discomfort, and humiliation.” Cameron
, 538 F .2d a t 258; see also W inston
, 470 U.S. at 765 (“[ T] o take control o f respondent’s body
, to d r ug this citiz en—not y et convicted of a crimina l o ffense—with narcotics and barbiturates into a state of unconsciousness, a nd then to search beneath his skin for evidence of a crime

. . . involves a virtually total divestment of respondent’s ordinary control over surg ical probing beneath his skin.” (citation a nd internal quotation marks omitted)).

The search here was at least as invasive a s s ea r c hes we and other courts have characteriz ed as unwarranted intrusions

on dig nitary interests. I n United States v. Cameron
, a suspect underwent a dig ital rectal ex am and two enemas b e fore being forced to drink a liquid lax at i v e

. 5 38 F .2d at 258. I n an opinion by t h en-J udg e Kennedy
, w e held that search unreasonable

. I

d

. at 258–60. I n Ellis v. City of San Diego
, 176 F

. 3d 1183 (9th Cir. 1999), we held that the plaintiff h ad alleg ed a clear F ourth Amendment violation w hen he claimed that doctors sedated him, took blood samples, and inserted a catheter into h i s p e n is. Id. at 1186, 1191–92; see also Booker
, 728 F .3d at 5 47 (sedation, intubat i o n, and anal probi n g a r e “an affront to personal d ig nity

. . . categ orically
g reater” than the surg ery in W inston ) ; Gray , 669 F

. 3d at 564 (proctoscopy is “a g reater affront to

. . . dig n itary interest[ s] than full-on e x ploratory surg ery ”); United States v. Husband
,G E O R G E V

. E D H O L M 25

226 F .3d 626, 632 (7th Cir. 2000) (sedation and reaching into suspect’s mouth “ constitute a serious invasion of

. . . personal privacy a

nd liberty interests”); Rodriques v

. F urtado
, 950 F .2d 805, 811 (1st Cir. 1 9 9 1 ) (vag inal inspection is “a drastic and total intrusion of

. . . personal privacy a nd security ”); Kennedy v

. L.A. Police Dep’t
, 901 F .2d 702, 711 (9t h Cir. 1989) (visual inspections of body cavities a re “dehumaniz ing and humiliating ”), abrogated o n other grounds by H

unter v. B ryant , 502 U.S. 2 24 (1991) (per curiam); Tribble
, 860 F .2d at 325 (dig ital rectal ex am is “one of the most intrusive methods of detecting contraband”); Y a nez v. Romero
, 619 F .2d 851, 855 ( 10th Cir. 1 980) (catheteriz ation is a “g ross personal indig nity ”); Huguez v

. United States
, 406 F .2d 366, 379 ( 9 t h Cir. 1968) (dig ital rectal e x am was “a brutal invasion o f p rivacy ”); S tate v

. Payano-Roman
, 714 N.W .2d 548, 5 6 0 (W is. 2006) (being forced to drink a lax ative is a “sig nificant intrusion”).

I n trusive body searches are permissible when they a re reasonably necessary to respond to an immediate m edical

e m e r g ency

. S

ee Husband
, 226 F .3d at 635; People v. Bracamonte
, 540 P.2d 624, 629 (Cal. 1975). O fficers F reeman and J ohnson contend that su ch a n emerg ency e x isted because of the risk that the bag g ie of cocaine base in Ge o r ge ’s r ectum would rupture. They contend that the procedures performed b y D r. Edholm were n e cessary to save Georg e’s life. B ut “since the suspect h imself w o u l d have been responsible for a

ny such [medical] risk, only a showing of the g r eatest imminent harm would justify intrusive action for the purpose of removal of the drug .” Cameron
, 538 F .2d at 259 n.8.

Fr e eman and J ohnson rely h eavily on D r. Edholm’s testimony that the proce d u r e s were “life-saving treatment”G E O R G E V

. E D H O L M 26

n e c e ssary to address the risk that the bag g ie of cocaine b a s e in Georg e’s rectum would rupture. B ut Edholm’s testimony would be of limited use if a jury concluded that F reeman a nd J ohnson were the source of false information leading Edholm
to believe that a life-threatening e merg ency ex isted. Edholm

never testified that he believed the b ag g ie had actually ruptured. He testified only that it could rupture: “I f the g o lf ball siz e a mount of c o c a ine in h is r ectum had r upt u r ed, he likely would have died that evening .” As to “drug -packing ” i n general, Edholm testified that “if y o u don’t g et the d r u gs out, then they can rupture. ” E d holm did not testify that he had any reason to think the bagg ie in Georg e’s rectum was more likely

to rupture than in any

other drug -packing

case.

Viewing the evidence i n t h e lig ht most favorable to Georg e, a reasonable jury could conclude that the o nly actual risk to Georg e’s health was the possibility that the bag g ie of cocaine base could rupture. That sort o f s p e culative,
g eneraliz ed risk cannot on its own just i fy nonconsensual procedures a s invasive a s those performed b y D r. Edholm. Every person who hides a bag g ie of drug s in his rectum faces

a risk that the bag g ie will rupture. B ut the mere fact “that the suspect is concealing c o n traband d oes not authoriz e g overnment officials t o r e s o r t to any and all means at their d isposal to retrieve it.” Cameron
, 538 F .2d at 258; see W inston
, 4 7 0 U

. S

. at 767. Otherwise, hig hly invasive searches of drug -packing suspects’ rectums would n ever violate the F ou r t h Amendment. That clearly is not the law. See Rochin , 342 U.S. at 172; Cameron
, 538 F .2d at 256–59; Bracamonte
, 540 P.2d at 628–31.

The record could support a jury conclusion that the search

was not reasonably necessary to address the risk o f rupture o f the bag g ie in Georg e ’ s rectum. Officers F reeman a ndG E O R G E V

. E D H O L M 27

J ohnson both testified they h ad seen doctors allow suspects with drug s in their rectums to p ass the drug s naturally
, using only lax atives, including one suspect who had a “very hig h” heart rate and, as a result, was plac e d i n i n tensive care. A rational jury could thus find that the potential r isk of rupture could be a d e q u a tely addressed by keeping Georg e in the hos p i t a l and monitoring his bowel movements. See United States v. Aman , 624 F .2d 911, 913 (9th Cir. 1980) (allowing police to hold d

rug -packing suspect “ w h e r e medical personnel a

nd facilities were immediately available” in case the packag e ruptured); Cameron , 538 F .2d at 258 & n.7.

Third, we we i gh the intrusiveness of the search ag ainst “the communi t y ’ s interest in fairly and accurately determining g uilt o r innocence.” W inston
, 470 U .S. at 762. The community h as a strong interest in prosecuting those w ho

are selling cocaine base, and Georg e like l y could not have been prosecuted without the evidence h e h ad hidden in his
rectum. B ut a jury could reasonably conclude that the bag g ie of cocaine b ase could have been recove r e d t hroug h far less intrusive means. I f G eorg e’s life was not in immedi a t e jeopardy
, doct o r s c o uld have kept him in the hospital, administered lax atives, and monitored his bowel movements. See Cameron
, 538 F .2d at 258. F u rther, if t h a t co u rse o f
treatment had been followed, the officers th e n would have had t i m e to seek a search warrant. See United States v

. E r w i n , 625 F .2d 838, 841 (9th Cir. 1980). Under t h e s e circumstances, t h e intrusiveness o f the search far ex ceeded what was necessary to serve the community ’s interest in recovering

evidence of Georg e’s crime.

W e therefore hold, based on the W inston factors, tha t a jury could c onclude the procedures performed by Dr. Edholm violated the F ourth Amendment.G E O R G E V

. E D H O L M 28

2. Qualified I mmunity

Even if Officers F reeman and J ohnson v iolated Georg e’s F ourth Amendment rig ht s, they a re entitled to qualified immunity if those rig hts were not “clearly established” at the time of the search. S

e e S t anton v. Sims
, 134 S. Ct. 3, 4–5 (2013) (per curiam); Ashcroft v. al-Kidd
, 131 S. Ct

. 2 0 7 4, 2083 ( 2 0 1 1 ). F or a rig ht to be clearly established, the “contours o f the rig ht must be sufficiently clear that a reasonable official would understand that what h e is doing violate s t h a t rig ht.” Anderson v

. Creighton
, 483 U.S. 635, 640 (1987). Viewing the evidence in the lig ht most favorable
to Georg e , we hold that F reeman and J ohnson are not entitled to qualified immunity

on the F ourth Amendment claim.

Georg e has provided eviden c e t h at would support a jury conclusion that F reeman and J o hnson g ave false information
to Dr. Edholm, and that this false infor m ation induced Edholm to perform u nconstitutionally i n trusive procedures that he wo u l d n o t o therwise have performed. “[ E] very reasonable official would have unders t o o d ” that conduct to violate the F ourth Amendment. al-Ki d d
, 1 3 1 S. Ct. a t 2083 (internal q

uotation mark omitted). W e reach this decision based o n Sup reme Court precedent, “cases of controlling authority in [ the officers’] jurisdiction,” and “a consensus o f

cases o f persuasive a

uthority

. ” W

ilson v. Layne
, 526 U.S. 603, 615–17 (1999).

F irst, it was clearly establi s h e d that a private citiz en’s search may be attributed to the police when the “the p r i vate party act[ s] as an instrument or ag ent of the Government” in

c o n d u cting the search. Skinner
, 4 89 U.S. a t 614. Th at principle had b een repeatedly and clearly applied to doctors’ searches of suspects’ bodies. S e e, e.g. , Ellis
, 176 F .3d atG E O R G E V

. E D H O L M 29

1191–92 (apply ing the Fo urth Amendment to doctor a nd nurse’s actions performed based on police instruction); Cameron
, 538 F .2d at 256–60 (same); Bracamonte
, 540 P.2d
at 626–31 (same). No reasonable officer could have believed that h e could avoid responsibility for an unconstitutional search by using deception to induce a private party to perform the search. The Supreme Court has deemed that principle so obviou s a s t o be “ ax iomatic.” Norwood
, 413 U.S. at 465. The Court w rote, “[ A ] state m a y n o t induce, encourag e, o r p romote private persons to accomplish what i t i s constitutionally forbidden to a ccomplish.” Id. (internal quotation marks omitted).

Second, i t was clearly established that a search of a patient’s b ody must be reasonable. Se e W inston
, 4 70 U.S. at 759–62; Cameron
, 538 F .2d a t 2 5 7

– 5 9. As we ex p lained above, forced sedation, anoscopy , intubation, insertion o f a nasog astric tube, and bowel evacuation are more intrusive than the stomach-pumping rejected in Rochin
, and at least a s intrusive a s other searches characteriz e d as hig hly invasive b y courts across the country

. S ee, e.g

. , H

u s b and
, 226 F .3d at 632; Rodriques
, 950 F

. 2d at 811; Kennedy , 901 F .2d at 712; Tribble
, 860 F .2d at 325; Y anez , 619 F .2d a t 8 55; Huguez
, 406 F .2d at 3 7 9 ; Bracamonte
, 540 P.2d at 631. Case law clearly e s t a b lished that the possibility that a bag g ie of drug s could rupture, standi n g a lone, c annot justify a warrantless search as intrusive as that conducted here. See, e.g. , R o chin
, 342 U.S. at 172; Cameron
, 5 3 8 F .2d at 258, 259 n.8; Utah v

. Hodson
, 907 P.2d 1 155, 1158 (Utah 1995 )

. I ndeed, the Californi a S u p reme Court so held nearly thirty y ears before the search in this case. Bracamonte
, 540 P.2d at 629 & n.5;

see Stanton
, 134 S. Ct. at 7 ( finding important the holding s o f
courts in the jurisdiction where officials act); al-Kidd
, 131 S. Ct. at 2086–87 (Kennedy , J ., concurring ) (same).G E O R G E V

. E D H O L M 30

C. F ourteenth Amendment Claim

I n addition to his claim under the F ourth A m e ndment, which applie s t o the states throug h the F ourteenth Amendment, see Mapp v. Ohio
, 367 U.S. 643, 654–55 (1961), Georg e bring s a separate F o urteenth A mendment claim based on his r ig ht to refuse unwanted medical treatment, see Cruzan v. Dir., Mo. Dep’t of Health
, 497 U.S. 261, 278 (199 0 )

. W e do not reach the merits of this c laim,

see C.F. ex rel. Farnan v. Ca p i s t rano Unified Sch. Dist.
, 654 F .3d 975, 978 (9th Cir. 2 0 11), but hold that F reeman a nd J ohnson are entitled to qualified immunity

. Georg e has not id entified a sing le case finding a F ourteenth Amendment v iolation under circumstances like those here. He cites the Seventh Circuit’s decision in United States v. Husband
, 226 F .3d at 632, but the court in that case considered the rig ht to refuse medical treatment only as a factor in analy

z ing a F ourth Amendment claim. Georg e relies primarily on cases dealing either with the trea tment o f
persons in veg etative states, see Cruzan , 497 U.S. at 2 65, o r with the use of medication to r ender criminal de f e n d a n ts competent to stand trial, see Riggins v. Nevada
, 504 U

. S. 127, 133–38 (1992); United States v. Rivera-Guer r e r o , 426 F .3d 1130, 1133 (9th C i r. 2 0 05); see also Benson v. Terhune
, 304 F .3d 874, 880–85 (9th Cir. 2002). Tho s e c a s e s a re “readily disting uishable.” Stanton
, 134 S. Ct. at 7. B ased on the cases cited to us by George
, w e cannot say that “every reasonable o ffici al” would have known the procedures performed by Dr. Edholm violated the F ou rteenth Amendment. al-Kidd
, 131 S. Ct. at 2083 (internal quotation mark omitted).G E O R G E V

. E D H O L M 31

D . Claims Ag ainst Edholm

I n lig ht of its ruling on Officers F reeman and J o h n s o n ’s
summary judg ment motion, the district court sug g ested t hat Georg e voluntarily dismiss w i t hout prejudice his c laims
ag ainst Dr. Edholm. B e fore Geor g e did so, however, the district court ente r e d a f

inal judg ment d ismissing Georg e’s complaint in its entirety

. One day later, Georg e filed a notice of dismissal under F e deral Rule of Ci v i l Procedure 41(a)(1)(A)(i). Georg e n ow arg ues his voluntary d ismissal was a nullity

because it followed the district court’s order o f final judg ment. Georg e cites no case on point, and o ur circuit does not appear to have a ddressed the issue. T h e district court may address that issue, as well as any o thers related to Edholm, on remand.

Conclusion

W e reverse the g rant of summary judg ment to Officers F reeman and J ohnson on Georg e’s F ourth Amendment c laim. W e affirm the g rant of summary judg ment on his F ourteenth Amendment c laim. We decline to address i s s u e s related to Dr. Edholm. Each party

shall bear its own costs on appeal.

R E V ERSED in part, AF F IRMED in part, an d REMANDED.