### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-40835

CARRIE RAHAT SAMA, Plaintiff–Appellant,
v. DOCTOR EDWARD HANNIGAN; DOCTOR LANNETTE LINTHIGUM; WILSON DEE, Director Texas Correctional Officer on Offenders Medical Condition; DOCTOR UVALDE; DOCTOR SNYDER; DOCTOR BENOIT; DOCTOR DEN; DOCTOR MIDDLETON, Defendants–Appellees.

Appeals from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, OWEN, and HAYNES, Circuit Judges. PRISCILLA R. OWEN, Circuit Judge: Carrie Rahat Sama, who was i n c a r c e r ated in the custody of the Texas D e p art m e nt o f C ri m i n al Ju s tic e

– C o rr e c ti o n al I n s tituti o n s D ivision (TDCJ–CID), sought damages under 48 U.S.C. § 19 8 3

. S h e asserted that her constitutional rights were violated when her ovary and lymph nodes were removed without her consent during a radical hysterectomy. The dist r i c t court granted summary judgment in f

av o r of the physicians who performed the surgery, holding they

were entitled to qualified immunity. The district court also denied Sama’s U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Februa ry 3, 201 2 Lyle W . Cayce Clerk Case: 10-40835 Document: 00511746639 Page: 1 Date Filed: 02/03/2012No. 10-40835

motion to recuse, submitted to the court after she filed her notice of appeal. We affirm the district court’s judgment. I Sama (TDCJ # 1362948) was incarcerated in the TDCJ–CID at the Lane Murray Unit i n Gatesville when she was diagnosed with a form of cervical

cancer known as endocervical adenocarcinoma in situ , C I N I II (Cervical Intraepithelial Neoplasi a) , a malignant condition that is thought not to have spread beyond the most superficial layer of the cells in the cerv i x . She was referred to the Benign GYN Service at the University of Texas Medical Branch (UTMB) and under w e n t a cervical conization, a surgical procedure, which

r e v e aled a more extensive cancer than had initially been suspected. I n discussing the treatment plan with UTMB physicians, Sama, who was then thirty-six years of age, provided her medical history. The notes of her medical history indicate that she told UTMB personnel t hat she had previously had biological children through a surrogate and that she did not want her left ovary removed if a hysterec t o m y was warranted. She desired to preserve the possibility of conceiving again. Sama was referred to the GYN Tumor Service, at which time Dr. Edward Hannigan, the Gynecologic Oncology Fellowship Progr a m Director for the Department of Obstetrics & Gynecology at UTMB, became involved in her case. A resident physician under Dr. Hanniga n’ s s u pervision evaluated Sama, and the assessment was malignant neoplasm of the endocervix. It is undisputed that the appropriate treatment for her malignant tumor was a radical hysterectomy. During a pre-operative consultation, a resident physician a n d t he attending faculty physician discussed with Sama the planned procedure, risks, and benefits. Lymph node dissection, which is part of the treatment of cervical

cancer and is necessar y for pathological evaluation, was included in the t reatment plan. During the consultation, Sama recounted that she h a d

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previously had ei gh t ab d o m inal surgeries for lysis of adhesions, which is the removal of scarring, and two years earlier, her right ov a ry h a d been removed. She also reiterated her desire to conserve her remaining ovary for future fertility. T h e p h y sicians agreed they would attempt to do so, but according to the outpatient clinic n o t e, Sama “underst[ood] that if [the ovary] is grossly abnormal” or “if anatomic constraints limit[] the abi l i t y to save her ovary,” it would be removed. On the date of the surgery, p r i o r t o the operation, Sama was further counseled by Dr. Michelle Benoit and another physician. The p r e - operative notes again indicate that Sama expressed understanding that the likelihood of preserving the ovary was low. Benoit and H a n nigan also stated in their affidavits that it was f u l l y discussed with, and understood by, Sama that preservation of the ovary would be an intra-operative decision based on findings during surgery. Sama does not dispute that she consented to a radical hysterectomy. She maintains, however, in a declaration submitted in support of her summary judgment response, that she made it clear “with each and every one of the team of [physicians]” that she would not consent to the removal of her ovary. S a m a s i gn e d a c o n s e nt f o r m auth orizing the following procedures: “R a dic al hysterecto m y a n d a ny o th e r i n dic at e d p ro cedures, lymph node dissection.” Sama also initialed Item 7 on a List of Risks incorporated into the form, which provides i n p e r t i n ent part: “I (we) understand that a hysterectomy is a removal of th e uterus through an incision in the lower abdomen or vagina. I also understand t h a t a dditional surgery may be necessary to remove or [re]pair other organs, including an ovary, tube, appendix, bladder, [re]ctum, vagina or ureter.” Items 7A and 8 were marked (presumably as relevant to Sama’s surgery), but were not initialed by Sama. Those items advis e d o f additional risks, including sterility associated with a total abdominal hyst e r e c t o m y and with fallopian tube and

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ovarian surgery. According to Sama, she refused to initial these items because she “would not sign any permits that allowed the removal of my ovary.” The procedures to be performed were handwritten on blank lines in t h e form, and Sama contends they were added to the form after she signed it. Benoit, a resident surg e o n , p erformed the surgery, and Hannigan was present throughout the procedu r e as the attending faculty physician. The surgery was difficult and lengthy because of “significant and dense adhesions” from Sama’s prior surgeries. The physicians observed that the l e f t ovary was grossly abnormal with multiple cys t s, and it had adhered to surrounding structures in Sama’s abdominal cavity. The surgeons were concerned with the risk of malignancy in the abnormal-appearing ovary and also determined that removal of the ovary was necessary “to get to the lymph node basin and perform the para m e t r e c tomy (radical portion of the hysterectomy).” Benoit and Hannigan concluded that the ovary was non-functional and that its removal was medically necessary and in Sama’s best, l o n g - term interest. The ovary was removed. The surgical p a thology report revealed no evidence of persistent local disease or metastatic cancer. The report did reflect a n ab n ormality of the left ovary—hemorrhagic corpus luteum—and although Hannigan could not “state conclusively that Ms. Sama’s ovary did not remain hormonally active, with the ability to produce eggs,” he could state, “with reasonable medical certainty, that b e c a use of the dense fibrosis and adhesions, it is very unlikely that any eg g harvesting could ever be performed.” During a second follow-up appointment four months after the surgery, Sama complained for the first time of leg weakness that had persisted since the
surgery. She claims t h i s c ondition was caused by the removal of the lymph nodes during surgery. Hannigan stated that any transient nerve damage resulting from the procedure would have been apparent immediately, and none

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was noted. In addition, the treat i n g p h y s ician at the follow-up appointment conclud e d t he symptoms likely were not related to any operative or postoperative causes. Sama stated in her declaration that a physician has since told her the n e u r o p a t h y was likely due to removal of her lymph nodes. She has presented no other evidence of causation, such as an affidavit or report from a medical professional. Sama su ed Benoit, Hannigan, and sever a l o ther physicians and officials under 42 U.S.C. §§ 1983 and 1 9 8 5 f o r violating, and conspiring to violate, her

cons t i t u t ional rights under the Eighth and Fourteenth Amendments. She alleged the removal of her ovary without her consent violated her right to refuse unwanted medical treatment and that the defendants were deliberat e ly indifferent to her serious medical needs. The district court granted Benoit and Hannigan’s motion f or summary judgment and dismissed the case with prejudice, holding Sama had failed to rebut the physicians’ assertion of qualified immunity by showing the existence of a disput e d f a ct issue material to determinin g w h e ther the physicians were deliberately indifferent under the Eighth Amendment. T h e d i strict court did not address Sama’s claim of a separate Fourteenth Amendment violation involving her right t o r e f use unwanted medical treatment. II As an initial matter, we note that, in addition to Benoit and Hannigan, Sama named six other defendants in her complaint. As part of its screening of the case under 28 U.S.C. § 1915A, the district court did not order that these six defendants be served with process or respond to the complaint. Thus, the 1

In re Jac obs , 213 F.3d 289, 290 (5t h C i r . 2 0 0 0 ) ( “ W e have long rec ognized the 1 autho rit y of the dis tri ct cour ts to asc ert ain the pot enti al fr ivolou sne ss of IFP sui ts bef ore dir ect ing se rvice of pr o c e s s , a n d this autho rit y has been cod ifi ed by the PLRA.” (int erna l cit atio n o mi tte d) ). 5 Case: 10-40835 Document: 00511746639 Page: 5 Date Filed: 02/03/2012No. 10-40835

d i s t r i c t court implicitly held that no cognizable claims existed against these defendants. In her brief on appeal, S a m a n a m es these other defendants as

2 parties and appears t o assume that they continue to be a part of this action. However, Sama has neither raised nor argued any issue on appeal regarding the propriety of the district co u r t ’ s § 1 915A order as to these defendants and accordingly has waived any such issue. 3 III Sama contends the di s trict judge should have recused himself from this

case because he “has a known bias on women[’]s issues.” Sama first raised this issue in one of two post-judgment motions filed in the district c o u r t a f ter she appealed the judgment. The district court determined that it lacked jurisdiction to rule on the motions and held that, to the extent it had jurisdiction over Sama’s recusal motion, it was untimely and without merit. Sama did not file a separate notice of appeal from that order, and we accordingly lack jurisdiction to review it. 4 IV We may dispose of two of Sama’s claims on waiver grounds. In her complaint, she alleged that Benoit’s and Hannigan’s conduct violated her equal protection rights under the Fifth and Fourteenth Amendments. However, she failed to present any argument or authority in support of this claim on appeal. Accordingly, the issue is waived. 5

See28 U. S. C. § 1 915A(b). 2
Bri nkm ann v. Da llasCnty. De puty Sher if

f Abn er , 813 F.2d744, 748 (5t h Cir. 1987)

. 3
Wil li am s v. Cha ter , 87 F. 3d 702, 705 ( 5th Cir. 199 6). 4
Uni ted States v. Thi bode aux , 211 F.3d 910, 912 (5t h Cir. 2000) (“ It has long been the 5 ruleint his c irc uit thatany iss ues no t brie fedonap pea l a re wa ived. ”)

. 6 Case: 10-40835 Document: 00511746639 Page: 6 Date Filed: 02/03/2012No. 10-40835

Sama also argues on appeal that, as a result of the surgery, she is now disabled as that term is defined in the Americans with Disabilities Act (ADA). 6 Sama did not assert an ADA claim in the district court and may not do so for the first time on appeal. Accordingly, the claim will not be considered. 7 V Sama contends that the district court erred in failing to hold a hearing on the motion for summary judgment. District courts are not required to hold an oral hearing on a summary judgment motion, and in a n y e v e n t , t here is no 8 indication in the record that Sama requested one. Sama also complains that dismissal was too severe a sanction and that a less restrictive measure would have been proper. However, the district court did not dismiss the case as a sanction. The district court dismissed the case because

o f its determination that the defendants were entitled to qualified immunity based on the summary judgment evidence presented. VI Wit h r e g ard to Sama’s claim that Benoit and Hannigan violated her Eighth Amendment right to receive adequate medical care, the district co u rt held that Sama failed to show the existence of a disputed material fact issue as to whethe r B e n o i t and Hannigan were deliberately indifferent to her serious medical needs and therefore failed to rebut their affirmative defense of qualified immunity. We agree. “A prison official violates the Eighth Amendment’s prohibition against cruel and unusual punishment when his conduct demonstrates delib erate

42 U. S. C. § 1 2102. 6
See Lev ere tte v

. Loui sv il leLa dderCo. , 183 F.3d339 , 342 (5t h Cir

. 1999)

. 7
Jac kson v. Wid nal l , 99 F.3d 710, 713 (5t h Cir. 1996) (ana lyzing pr ior vers ion of F E D

. 8 R. C IV

. P. 56). 7 Case: 10-40835 Document: 00511746639 Page: 7 Date Filed: 02/03/2012No. 10-40835

indifference to a prisoner’s serious medical needs, constituting an ‘unnecessary and wanton infliction of pain.’” We have held that unsucc e s s f u l m e dical 9
treatment and acts of negligence or medical malpractice do not constitute delibe r ate indifference, nor does a prisoner’s disagreement with her medical treatment, absent exceptional circumstances. Rather, a prison inmate can 1 0 demonstrate an Eighth Amendment violation by showing that “prison officials ‘refused to treat him, ignored his comp l a i n t s, intentionally treated him incorrectly, or e n g aged in any similar conduct that would clearly evince a wanton disregard for any serious medical needs.’” 1 1 Sama essentially contends the surgery was unnecessary, as the pathology reports revealed that the removed ovary and lymph nodes were not cancerous, and that she now suffers from continued leg we a k ness resulting from the removal of her lymph nodes. At best, this constitutes a disagreement with her treatment and a claim of medical malpractice. It is undisputed that Sama was timely examined, diagnosed, and treated. The physicians inv o lved in Sama’s

care exerc i s e d their reasoned medical judgment and determined that surgery

was the appropriate course of treatment based on their examinations, the test results, and Sama’s diagnosis. There is no evidence that Benoit and Hannigan

were delib erately indifferent to Sama’s serious medical needs, and they are entitled to qualified immunity on Sama’s Eighth Amendment claim. VII Sama also asserts that Hannigan and Benoit vi olated her Fourteenth Amendment rights by removing her ovary and lymph nodes without her consent.

Easte r v. Pow el l , 467 F.3d 459, 463 (5t h Cir. 2006) (quo ting Wilson v. Sei ter , 501 U. S. 9 294, 297 ( 1991) ).

Go ber t v

. Cal dw el l , 463 F.3d339 , 346 (5t h Cir

. 2006)

. 1 0
Id. (quo ting Do mi no v. Tex

. De p’t of Cri m i n a l Ju s ti ce , 239 F.3d 752, 756 (5t h Cir. 1 1 2001) ) (int erna l q uota tio n m ark s om itt ed)

. 8 Case: 10-40835 Document: 00511746639 Page: 8 Date Filed: 02/03/2012No. 10-40835

Unlike her Eighth Amendment claim of deliberate ind i f f e r e n ce to her serious medical needs, this claim asserts a violation of substantive due process as guaranteed by the Due Process Clause of the Fourteenth Amendment, under 1 2 which a competent person has a liberty interest in refusing unwanted medical treatment. The Supreme Court explained in Cruzan v. Di re c tor, Missouri

1 3 Department of Health that determining “‘whether [Fourtee n t h A mendment] rights have been violated must be determined by balancing [a claimant’s] liberty interests against the relevant state interests.’” 1 4 Qualified immunity ge n erally shields government officials performing d i scretionary functions, such as the administration of medical care, “ ‘ f r o m liability for civil damages in s o f a r a s their conduct does not violate clearly established statutory or constitutional rights of which a r e a s o n ab l e p e r s o n w o ul d have known.’” Once raised, the burden shifts to the plaintiff, who may rebut 1 5 entitlement to immunity by demonstrating that “the official’s allegedly wrongful conduct violated clearly established law.” 1 6

See Was hington v. Gl ucks ber g , 521 U. S. 702, 720 (199 7) (no ting that the Du e Proc es s 1 2 Claus e “p rovid es height ened pr ote cti on agains t governm ent inte rf ere nce wi th cer tain fund ame ntal right s and liber ty inte res ts ”)

.

Cruzan v. Di r. , Mo

. De p’t of He al th , 497 U. S. 261 , 278 (199 0) (“ The pr incip le thata 1 3
com pet ent per so n has a cons tit utio nally pr ote cte d liber ty inte res t in ref usi ng unw ante d
me dic al tre atm ent may be infe rre d fr om our pr ior dec isi ons .” ); Was hington v. Ha rp er , 494 U. S. 210, 221- 22 (199 0) (p ris oner s pos se ss “a signi fic ant liber ty inte res t in avoid ing the unw ante d adm inis tra tio n of antip syc hoti c dr ugs unde r the Du e Proc es s Claus e of the Fourt eent h Ame ndm ent” ); Thom

ps on v. Up shur Cnty., Tex

. , 245 F.3d 447, 462 n.10 (5t h Cir. 2001) (“ There is no ques tio n that a com pet ent per so n has a l ibert y inte res t in ref usi ng unw ante d me dic al tre atm ent. ” (int erna l q uota tio n m ark s and ellip sis om itt ed) ).
497 U .S

. at 279 (quo ting Youngbe rg v
. Rom eo , 457 U. S. 307 , 321 (198 2))

. 1 4
Easte r v. Pow el l , 467 F.3d 459, 462 (5t h Cir. 2006) (quo ting Ha rlow v. Fitz gera ld , 457 1 5 U. S. 800, 818 (198 2)) ; see also Hal l v. Thom as , 190 F.3d 693, 696 (5t h Cir. 1999) (no ting that the adm inis tra tio n o f me dic al car e i s a d isc ret ionar y f unct ion)

. Kov ac ic v. Vi llar rea l , 628 F.3d 209, 211- 12 (5t h Cir. 2010) (int erna l quot atio n mar ks 1 6
om itt ed)

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For a right to be clearly established, “[t]he conto urs of the right must be sufficiently clear that a reasonable o f ficial would understand that what he is doing violates that right.” “[P]re-existing law mus t dictate, that is, truly 1 7 compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what [the] defendant is doing violates federal law in the circumstances .” 1 8 In their motion for summary judgment, Hannigan and Benoit argued they

were entitled to qualified immunity from all of Sama’s claims. In her response 1 9
to the motion, Sama pointed to evidence (in the form of her declaration and the partially initialed consent form) that she had refused to consent to the removal of her ovary under any c i r cumstances and argued, citing Cruzan , that the defendants’ actio n s v i olated her “constitutionally protected liberty interest in refusing unwanted medical treatment.” Exercising our discretion under Pearson v. Callahan , we may analyze and resolve this issue un d e r th e “c l e arly established” prong of the qualified immunity test. Because Sama did not mee t h e r b urden of demonstrating Benoit’s and 2 0 Hannigan’s conduct was not objectively reasonable in light of clearly established law, the district court did not err in dismissing the case. Raising a fact issue as to whether she consented t o removal of her ovary did not suffice to meet her burden regarding clearly established law.

Ande rso n v
. Creighton , 483 U. S. 635 , 640 (198 7). 1 7
Pasc o ex rel

. Pas c o v
. K n o b la uch , 566 F.3d 572, 578- 79 (5t h Cir. 2009) (int erna l 1 8 quot atio n m ark s om itt ed)

.

Their mo tio n for sum mar y judgm ent ass ert ed that “[ t] he bif urc ated tes t for qualif

ied 1 9 im mun ity requ ires exam inati on of (a) wh ethe r the plai ntif f has allege d a violat ion of a clea rly
es tabl ish ed cons tit utio nal right ; and (b) if so , wh ethe r the def enda nt’ s cond uct wa s objec tivel y unrea so nable in the light of the clea rly es tabl ish ed lawatt he tim e o f the incid ent. ”

Pearson v. Ca llaha n , 555 U. S. 223 , 236 (200 9); Pasc o , 566 F.3dat579

. 2 0
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As noted above, i n Cruzan , the Supreme Court addressed the scope of a person’s liberty interest in refusing unwanted treatment. The Court explained, “[D]etermining that a person has a ‘liberty interest’ under the D ue Process Clause [in refusing unwanted treatment] does not end the i n quiry; ‘whether

r espondent’s constitutional rights have been violated must be determined by balancing his liberty inter e sts against the relevant state interests.’” In the 2 1 prison context, such counterv aili n g s t at e i nt e r e s t s i nc lu d e p rovi di n g ap p ro p ri at e, necessary medical treatment to inmates as well as prison safety and security. 2 2 Unlike her conclusional assertions about whether she consented to removal of her lymph nodes, Sama declares that she affirm a tively and 2 3 unequivocally told the physicians involved in her treatment that she would not consent to removal of her ovary because she hoped to someday harvest her eggs, and she refused to initial the portion of the consent form explaining risks associated with ov a r i an surgery. We accept these assertions as true in our review of the summary judgment, however, it is undisputed that Sama consented to a radical hystere ctomy after being advised that removal of the

ov ary m i ght b e n e c e s s ary if a n atomical constraints limited the physicians’ ab ility to leave the ovary in place and that this determination would have to be made during the surgery. In spite of this knowledge, Sama did not withdraw her consent to the radical hysterectomy. She proceeded. Her refusal to give express consent to the removal of her ovary was not unequivocal. It was ambiguous in

Cruzan v. Di r. , Mo

. De p’t of He al th , 497 U

. S

. 2 6 1 , 2 79 (199 0) (f oot note om itt ed) 2 1 (quo ting Youngbe rg v
. Rom eo , 457 U. S. 307 , 321 (198 2))

.

Was hington v. Ha rp er , 494 U. S. 210, 222, 236 (199 0) (no ting that the exten t of a 2 2 pr iso ner’ s right s in ref usi ng unw ante d tre a t m e nt “m ust be def ined in the cont ext of the inm ate’ s conf

inem ent” and upho ldi ng a st ate regula tio n per mi tti ng pr iso n off icia ls to for cibl y me dic ate a me ntall y ill pr iso ner “to red uce the danger that an inm ate suf fer ing fr om a se riou s me ntal dis ord er rep res ents t o h im se lf or othe rs ”)

.

Free ma n v. Tex

. De

p’t of Cr i m i n a l Justi ce , 369 F.3d 854, 860 (5t h Cir. 2004) 2 3 (c oncl usi onal allegat ions anduns ubs tant iate d ass ert ions d o n ot cre ate a f actis sue ).
11 Case: 10-40835 Document: 00511746639 Page: 11 Date Filed: 02/03/2012No. 10-40835

light of her simultaneous consent to a radical hysterectomy with the attendant uncertainties. Be n o i t ’ s affidavit states that during surgery it was determined that the ovary had to be removed in order to reach and remove anatomic structures necessary to the performance of t h e radical portion of the hysterectomy. This is uncontroverted. We therefore are p r e s e nted with a situation in which an i n mate-patient has consented to a procedure while maintaining that she did not and would not consent to a necessary part of that procedure. Sama has not established that the complet ion of the radical hysterectomy under such circumstances violated clearly establi s h e d law. The right to refuse medical treatment is not unqualified. The lin e s s e p a r a ting 2 4 when a state actor may and may not constitutionally administer unw a nted medical treatment are far from clear. W e also note that, as a factual matter, her alleged nonconse n t t o t h e removal of her ovary was qualified by her purpose for withholding c onsent, which was to attempt to harvest eggs at some point in the f u t u r e ; i t w as not a binary “yes” or “no.” When, during surgery, the physicians observed t h e s c ar tissue, cysts, and abnormality of Sama’s ovary, they relied on their medical judgment to conclude that the ovary was nonfunctional. The dissent focuses on the fact that the pathology report found no malignancy in the ovary and that the physicians could not state conclusively that the ovary could not have produced
eggs. But this overl ooks the more salient fact that during the surgery the physicians saw “dense fibrosis and adhesions” and determined that because of these conditions, “it [was] very unlikely that any eg g h a rvesting could ever be
p e r f o r med.” Sama’s condition in this regard is undisputed, and the surgeon’s medical judgment and conclusion about the f easibility of harvesting an egg in the future is unchallenged. The physicians did nothing to foreclose Sama’s

See Ha rp er , 494 U. S. at221 -23, 236

. 2 4
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ability to have a biological child: Sama’s pre-existing condition prevented her f r o m h aving a biological child. The reason that Sama gave for her desire t o retain her ovary no longer obtained. The physicians’ removal of Sama’s ovary

was arguab l y within her grant of consent in light of this circumstance. At the least, this leaves the gener a l principle that an inmate may refuse medical tr eatment sufficiently uncertain in application to trigger qualified immunity. There is an additional overlay. The ovary’s continued presence in Sama’s body was, in the physicians’ judgment, life-threatening. The affidavit of one of the physicians states th a t t h e abnormal appearance of the ovary “raised the possibility of metastic disease in the ovary, which could not be ruled out until the final Pathology report was obtained.” This exercise of profess i onal judgement signified that, at that point, the physicians were not fr u s t r ating her consent. Although her declaration in support of her response to the motion for summary judgment states that she told the surgeons that she did not want he r ovary removed under any circumstance, such a s t a t e m e n t was not the equivalent of stating that she would rather die than have an ovary removed, as the dissenting opinion suggests. She assented to a radical hysterectomy that she knew might well entail removal of her ovary. She did not express any desire to allow cancer to take its course and end her life. To the contrary, ba s ed on what she communicated to those treating h e r a t t h e time, her lack of consent was grounded in her desire to live and conceive through a surrogate. Her expressed desire was not frustrated by the physicians’ considered medical judgment. This is not the stuff of a substantive due process violation. No juror could find on this record anything more than negligence on behalf of t h e physicians, and negligence is categorically insufficient to deprive someone of substantive due process protection. 2 5

Cnty. of Sacram ento v. Lew is , 523 U. S. 833, 849 (199 8) (“ [L] ia b i l i t y f o r negligent ly 2 5 infl ict ed harm is c atego ric ally benea th the thr es holdof c ons tit utio nal due pr oce ss .” ). 13 Case: 10-40835 Document: 00511746639 Page: 13 Date Filed: 02/03/2012No. 10-40835

In light of all of these circumstances, we cannot say that the law is, or was at the time of the defendants’ conduct, clearly established such that a reasonable official in Benoit’s and Hannigan’s position would understand that their conduct violated Sama’s F o u r t e e nth Amendment due process rights. Sama had the b u r d e n to negate qualified immunity. Accepting her assertions as true, and considering t h e o t her undisputed facts in the record before us, Sama has not cited, and we have not located, a Supreme Court or circuit court decision holding that a violation occurred under similar circumstances, in which an inmate had 2 6 consented to at least part of the treatment provided, the addition a l t r e a tment

was deemed medically necessary as well as necessary to complete the consentedto procedure that was underway, and the attending physicians determined that it would be potentially life-threatening to end the surgery without removing the

o v a ry and completing the radical hysterectomy. The few circuit and district court cases involving somewhat sim il ar f ac tu al s itu ati o n s p rovide support for the position that an inmate’s liberty interest in such circum s t a n c es is outweighed by the state’s interests and that a reasonable person in the defendants’ position could not have b e l i e v e d his actions violated the Fourteenth Amendment. At 2 7

See Mc Cle ndon v. City of Colum bia , 305 F.3d 314, 329 (5t h Cir. 2 0 0 2 ) ( e n banc) 2 6 (h o l d i ng that a right may be clea rly es tabl ish ed bas ed on cont roll ing autho rit y—Sup r e m e Court o r F i f

t h Circ uit cas e law—or “‘ a cons ens us of cases of pe rsu as iv e author ity ’” in othe r cir cuit s (quo ting Wilson v. La yne , 526 U. S. 603 , 617 (199 9)) ).
See Lyons v. Tra quin a , No. CV 06-2 339 RT, 2010 WL 3069336 , at *10 (E. D. Cal. Aug. 2 7 4, 2010) (ho ldi ng that an inm ate’ s Fourt eent h Ame ndm ent right s we re not violat ed wh en the inm ate cons ente d to sho ulde r sur gery and the doc tor per for me d pr oce dur es on the sho ulde r that we re dee me d me dic ally nece ss ary, des pit e the inm ate’ s clai m that the sp ecif ic pr oce dur es per for me d dif

fer ed fr omthos e to w hich he had cons ente d) ; seea ls o Brow n v
. Iones cu , No. 02 Civ. 1218LM M, 2004 WL 2101962 , at *5 (S .D .N .Y

. Sep t. 21, 2004) (f indi ng fac t iss ues exis ted
as to wh ethe r an inm ate cons ente d to plac em ent of a thir d st ent and that , beca use ther e wa s no evide nce indi cat ing the nece ss ity or urgenc y o f t h e s t e n t, sum mar y judgm ent on the inm ate’ s Fourteen th Ame ndm ent claim w as inap pr opr iate ); cf . Ma rtinez v. Turner , 977 F.2d 421, 423 (8t h Cir. 1992) (r eject ing cons tit utio nal clai m agains t pr iso n regula tio ns autho rizing
me dic al off

icer s to for ce- fee d an i nma te if they det erm ined his lif e o r per man ent healt h w as in danger).
14 Case: 10-40835 Document: 00511746639 Page: 14 Date Filed: 02/03/2012No. 10-40835

l e a s t one court has recognized the untenable position of physicians i n t h e defendants’ positi o n , noting that if they had failed to perform other necessary procedures while the surgery was underway, they “could ha v e s ubj ected [themselves] to another deliberate indifference claim.” 2 8 With great respect, the dissenting opinion misunderstands th e l aw of qualified immunity. The dissenting opinion suggests that we remand this case to the district court so that it may “address any necessary balancing between the prisoner’s liberty interests and any state interests in provid i n g a ppropriate medical treatment.” The opinion then asserts, “[c]ertainly it cannot be said on 2 9 this record as a matter of law that the state’s interest in providing treatment for

a non-emergency condition outweighs Sama’s” Fourteenth Amendment right to refuse medical treatment. We are not presented wi t h a proceeding in which Sama is seeking to prevent the State from going forward with treatment against her will. We are looking in hindsight at physicians’ actions to determine if the law was so clearly established in this area that it “compel[s] . . . the conclusion for every like-situated, reasonable government agent that what [the] defendant [was] doing violate[d] federal law in the circumstances .” This is a question of 3 0 law and one which this court routinely ans w ers in qualified immunity cases,

even if th e d istrict court did not reach it. It was Sama’s burden to negate the applicability of qualified immunity. She did not satisfy that burden. The dissenting opinion asserts that Sama was not “required to imagine
every possible argument a defendant could mak e—especially, such an unfathomable argument as that doctors can act a t w i l l a nd contrary to a

Lyons , 2010 WL 3 069336, at*9

. 2 8 Infraat19 n.3. 2 9
Pasc o ex rel

. Pasc o v. Kno b l a u c h , 5 6 6 F.3d 572, 578- 79 (5t h Cir. 2009) (int erna l 3 0 quot atio n m ark s om itt ed)

. 15 Case: 10-40835 Document: 00511746639 Page: 15 Date Filed: 02/03/2012No. 10-40835

p a t ient’s consent—and counter it.” We do not agree that this opinion or the 3 1 physicians have posited that Sama’s physicians could “act at will and contrary to a patient’s consent.” But irre s p e c t ive of how the facts before us are characterized, Sama bore the burden regarding clearly established law. Sama controverted some, but not all, of the facts set forth in the surgeons’ affidavits. She was required to demonstrate that the defendan t s v i o l ated clearly established l a w w h e n applied to all the salient facts—both the facts as she claimed them to be and the other undisputed facts. Those facts include not only Sama’s assertion that she did not consent to the removal of her ovary or lymph nodes, but also the fact that s he did consent to a radical hysterectomy, the undisputed facts regarding what she was told about the nature of that surgery,

a n d the undisputed facts regarding her condition. Sama did not meet the burden imposed upon her under the law of qualified immunity in her response to the motion for summary judgment. In s u m, the law governing Fourteenth Amendment claims involving unwanted medical treatment in the prison context is far from certain. Given the dearth of case law and the existen c e o f a t least some case law supporting the position that Hann i g a n ’ s and Benoit’s conduct was not contrary to clearly established law, Sama has failed to rebut the defendants’ e n t itlement to
q ualified immunity on her Fourteenth Amendment claim, and summar y judgment was appropriate. * * * For the foregoing reasons, the district court’s judgment is AFFIRMED.

Infraat17. 3 1
16 Case: 10-40835 Document: 00511746639 Page: 16 Date Filed: 02/03/2012No. 10-40835

HAYNES, Circuit Judge, concurring and dissenting: I concur in the majority opinion’s disposition of t h is appeal with the exception of Section VII, addressing t h e claim under the Fourteenth Amendment, as to which I respectfully dissent. Initially, on procedural grounds, I disagree with reaching the Fourteenth Amendment issue at all on this appeal. Although the doctors asserted qualified im m u n ity in a general sense to Sama’s lawsuit below in their motion for
summary judgment, they, as well as the district court, failed to address Sama’s Fourteenth Amendment issue, focusing instead on Sama’s Eighth Amendment issue. Thus, rather than addressing Sama’s Fourteenth Amendment issue for

1 the first time on appeal, we should remand to allow the district court to examine it in the first instance. Although I recognize that once a defendant asserts a qualified immunity defense the burden shifts to the plaintiff to rebut it, Kovacic

v. Villarreal , 628 F.3d 209, 211-12 (5th Cir. 2010), cert. denied , 131 S. Ct. 2995 (2011), I disagree procedurally that a plaintiff (particularly, a pro se prisoner) is required to imagine ever y p o s s ib l e a r gu m e n t a d e f e n d a nt could make—especially, such an unfathomable argument a s t hat doctors can act at will and contrary to a patient’s consent—and counter it. As the majority opinion acknowledges, under the substantive due process clause of the Fourteenth Amendment, a competent person has a liberty interest in refusing unwant e d m e d i cal treatment. See Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 278 (1990) (finding that “a competent person h a s a constitutionally protected liberty interest in r e f using unwanted medical

Indeed , the doc tor s only dis cus se d the st andar ds for an Eighth Ame ndm ent clai m 1 regar ding de nial of

med icaltreat me nt in theirmot ion fo r sum mar y judgmentand sim ilar ly, only add res se d her Eighth Ame ndm ent clai m in thei r rep ly to Sam a’s res pons e to thei r mo tio n fors umm ary judgm ent. Qu iteno tabl y, even Sam a he rs elf, in her s urr epl y, poi ntedout that the doc tor s had only add res se d her Eighth Ame ndm ent clai m and not her Fi f t h a n d Fourt eent h Ame ndm ent clai ms , and yet, the dis tri ct cour t, lik e the doc tor s, only add res se d her Eighth Ame ndm ent clai m in its m em oran dum andor derof d ism iss al. 17 Case: 10-40835 Document: 00511746639 Page: 17 Date Filed: 02/03/2012No. 10-40835

treatment”); Washington v. Harper , 494 U.S. 210, 221-22 (1990); Thompson v. Upshur Cnty., Tex. , 245 F.3d 447, 462 n.10 (5th Cir. 2001) (“There is no question that a competent person has a liberty interest in refusing unwante d m edical treatment.”) (internal quotation marks, ellipsis, and citation omitted). Sama’s complaint alleged that she refused to consent to the removal of her ovary under
any circumstances and complained of several alleged constitutional violations, including violations of the Fifth, Eighth, and F o u r t e enth Amendments. She further alleged that “[t]he wrongful removal of her ovary without her consent and in violation of the agreed upon treatment plan [constituted a] violation of her civil and constitutional rights[] to refuse non-court ordered treatments.” In her response to the doctors’ summary judgment motion, Sama cited Cruzan and argued that she had a constitutional liberty interest in refusing unwanted medical treatment as well as the right to die if she so desired. Indeed, contrary to the majority opinion’s assertion at pages 15-16, Sama fervently argued in her
response th a t she was willing to “risk death by the leaving of an ovary that might have to be later removed due to malignancy, in order to have her own child,” and further argued in her surreply that she “had a right to refuse those parts of the treatment, even if it meant choosing the right to die.” Neither the motion for summary judgment nor the distr i ct court’s order granting that motion addressed Sama’s claim that the doctors disregarded her lack of consent to the removal of her ovary and thereby violated her Fourteenth Amendment due process rights. Indeed, the doctors have never argued that they could remove her ovary without consent. T o t h e contrary, instead of arguing that they did not need Sama’s consent, the doctors consistently argued in the district court (and here ) that “they had a good faith belief that Sama understood 2

Their argum ent on this poi nt, aft er ackno wl ed gin g Cruza n , wa s the fol low ing: “[ T]he re 2 have been no cas es wh ere this Court or the S u p rem e Court have fou nd that a doc tor has violat ed a pat i e n t ’ s right to ref use me dic al tre atm ent wh ere the evide nce overw helm ingly

18 Case: 10-40835 Document: 00511746639 Page: 18 Date Filed: 02/03/2012No. 10-40835

t h e p robability of ovary removal and consented to the doctors’ intra-operative judgment.” In other words, the doctors’ position has always been that they, in fact, had Sama’s consent to the removal of her one remaining ovary. As a result, nothing in the summary judgment motion would have put Sama on notice that she must imagine an argument not made and rebut it. The district court did not address the Fourteenth Amendment claim at all, analyzing Sama’s claims only under the Eighth A m endment deliberate indifference standard. Accordingly, I conclude on procedural gr o u n ds that we should remand the case to the district court with regard to Sama’s Fourteenth Amendment claim. 3 T h e m ajority opinion concludes that “[b]ecause Sama did not meet h e r burd e n of demonstrating Benoit’s and Hannigan’s conduct was not objectively

sho ws that the doc tor per for me d the allege dly unw ante d pr oce dur e wi th the good fai th belie f that the pat ient cons ente d to it, and wh en it wa s undi sp uted ly in the pat ient ’s bes t inte res t. ”
On rem and, the dis tri ct cour t coul d ad d r e s s any nece ss ary balanc ing betw een the 3 pr iso ner’ s liber ty inte res ts and any st ate inte res ts in providin g app ro priate medic al tre atm ent. Cert ainly it canno t be sai d on this rec ord as a mat ter of law that the st ate’ s inte res t in pr ovidi ng treat me nt fo r a non-e me rgenc y condit ion out we ighs Sam a’s inter es t in pre se rving wh ateve r pos sib ilit y she may have of conc eiving a biolo gical child

. This is not to say that had ther e been a clai me d em ergenc y or nece ss ity, the outc om e wo uld b e d i f f e rent

. Indeed , as dis cus se d in Cruzan , a com pet ent per so n has the right t o r e f u s e even lif

es aving me dic al tre atm ent. 494 U. S. at278 -87. Furt herm ore , the majo rit y opi nion st ates that the ass ert ion in Dr

. Benoit ’s aff idavit that “it wa s det erm ined that the ovary had to be rem oved in ord er to re a c h and rem ove anato mi c st ruc tur es nece ss ary to the per for man ce of the rad ical por tio n of the hyst ere cto my” is uncon tro vert ed. Maj. Op

. at 12. Ho we ver, revie w of the rec ord sho ws that ther e wa s no me dic al em ergenc y or nece ss ity requ iring rem oval of the ovary. Indeed , even the affid avit of Dr

. Ha nnigan, Dr

. Benoit ’s att endi ng fac ulty sur geon, call s into ques tio n the clai m that the ovary abs olut ely had to be rem oved for any reas on: “[ i]t w a s our opi nion that ther e wa s no gros sly viable - norm al ovaria n tis sue , that the ovary wa s non-fun cti onal, and, ther efo re, the ovary wa s rem oved

. . . . It wa s our reas oned me dic al judgm ent that the bes t long- ter m outc om e for the pat ient wo uld be rem oval of the ovary at the t i m e o f t h is pr oce dur e. It wa s in the pat ient ’s be stin ter es t to rem ove the ovary. ” Mo reo ver, Dr

. Ha nnigan, des pit e the ince ntive to st ate othe rw ise , never ass ert s that rem oval of t h e o v a ry wa s nece ss ary to com ple te the rad ical por tio n of the hyst ere cto my. Thus, n o t o nly wa s rem oval of the ovary not the res ult of so me lif

e-t hrea teni n g em ergenc y or im min ent sit uatio n, but als o the sugges ted nece ss ity of rem oval is inde ed in doub t. 19 Case: 10-40835 Document: 00511746639 Page: 19 Date Filed: 02/03/2012No. 10-40835

reasonable in light of clearly e s t ab l ished law, the district court did not err in dismissing the case.” Maj. Op. at 10. F u r t hermore, although the majority opinion acknowledges a clear constitutional right for a prisoner to refus e m e dical treatment, it finds that the doctors are entitled to qualified immunity for the unauthorized removal of Sama’s ovary because Sama had arguably authorized 4

a “radical” hysterectomy and because the doctors’ intra-operative observation of the o v a r y suggested that the ovary was nonfunctional. Maj. Op. at 11-13. Furthermore, the m ajority opinion contends that the doctors would not have been on notice that they were violating clearly established law because there is not another case like this one. Maj. Op. at 14. That there be another c a s e e x a c tly like this one is not required to deny qualified immunity. See Ashcroft v. al-Kidd , 131 S. Ct. 2074, 2083 (2011) (“We do not require a case directly on point, but existing precedent must have placed the statutory or const i t u t i o n a l question beyond debate.”); Hope v. Pelzer , 536 U.S. 730, 739 (2002). Moreover, although we should certainly be relieved that there is not another case exactly like this one, even the very precedents cited in t h e m a j o r ity opinion clearly establish that a prisoner-patient has the right to refuse treatment. Maj. Op. at 10 n.18. Given that body of law, it is difficult to

see how it is “objectively reasonable” to think that one is not violating the rights of a patient as adamant as Sama claims she was about what she did and did not authorize. Indeed, even the doctors themselves have not made the argument utilized by the majority opinion. The doctors, perhaps in consideration of their own medical ethic s a n d p ro fessional reputations, never said they could countermand 5

Sam a cont ends that the handw rit ten language “rad icalhyster ect om y and any othe r 4 indi cat ed pr oce dur e, lymp h node dis se cti on” wa s not ther e wh en she signe d the cons ent for m.

The char act eris tic that dis tinguis hes a pr ofe ss ion, suc h as 5
me dic ine, fr om a tra de, suc h as rep airi ng auto mo biles , is that the 20 Case: 10-40835 Document: 00511746639 Page: 20 Date Filed: 02/03/2012No. 10-40835

t h e i r patient’s expressed wishes and remove the ovary over her objection. See Murphy v. Russell , 167 S.W.3d 835, 838 (Tex. 2005) (“Medical treatment will not constitute a battery unless it is provided without the patient’s consent.”); Miller

v. HCA, Inc. , 118 S.W.3d 758, 767 (Tex. 2 0 0 3 ) ( “ [ T] he general rule in Texas is that a physician who provides treatment without consent commits a battery.”). No doubt, the doctors are well aware that “all fallopian tube and ovarian surgery with or without hysterectomy, including removal and lysis of adhesions,” is a List A procedure as dictated by the Texas Medical Disclosure Panel and thus, disclosure and consent to ovarian surgery are specifically required b y Texas statute. T E X

. C I V

. P RA C

. & R E M

. C O D E AN N

. § 74.101, et seq
. (West 2011); 25 T E X

. AD M I N

. C O D E §§ 601.1, 601.2(g)(3) (2011). The doctors thus have not, could not, and indeed, dared not, argue that a doctor providing treatment to a p r i s o ner-patient is free to roam about the prisoner-patient’s body during surgery, exercising his “medical judgment” against the expressed wishes of the prisoner-patient. Instead, they argued that

me mbe rs es tabl ish and mai ntain st andar ds of tra ining,
com pet ence , and pr ofe ss i onal behavio r. Thes e st andar ds are enf orc ed by pr ofe ss ional organi zatio ns, suc h as t he Ame ric an Me dic al Ass ocia tio n, wh ich has a Counci l on Ethic al and Judi cial Aff airs

. Trad itio nally, m e d ical ethi cs cover s a wi de range of behavio r, inclu ding the phys icia n’s i n v o l veme nt wi th pat ient s and thei r fam ilies , and his or her com pet ence , publ ic im age, and
com me rci al behavio r. Physic ians mus t not abus e t he rela tio nshi p of tru st they deve lop wit h pati ents

. . . . They m ustgive clea r pr iori ty to thei r pat ient s’ in ter es ts

.

. . . . The phys icia n s h ould ens ure that the pat ient not only
cons ents to all pr oce dur es , inves tigat ions , and tre atm ents , but that this cons ent is bas ed on an unbias ed and full expla natio n of any ris ks , dr awback s, and alte rnat ives that mi ght be cons ide red

. T HE AME RICAN M E DI CAL A SSO C IA T IO N , E N CYC L OP E DIA OF M E DI C IN E 422 (Char les B. Clayma n, MD ed ., 198 9). 21 Case: 10-40835 Document: 00511746639 Page: 21 Date Filed: 02/03/2012No. 10-40835

she consented (or that they had a good faith b e l i e f t hat she did), a point as to which the majority opinion concedes (or at least accepts f o r argument’s sake) there is a fact issue. With that said, it is bewildering that s u c h b e drock principles of medical ethics and legal-medic o j uri s p ru d e nce that there be consent to treatment and respect for a patient’s right to choose his course of treatment

are effectively deemed not clearly established law by operation of the majority opinion. See Tex. Med. Providers Performing Abortion Servs. v. Lakey , No. 11- 50814, 2012 WL 454 1 3 , a t *13 (5th Cir. Jan. 10, 2012) (Higginbotham, J.,

c o nc urri n g) (“Th e do ct or-patient relationship has long been conducted withi n th e constraints of informed consent to the risks of medical procedures, as demanded by the common law, legislation, and professional norms. The doctrine itself rests

on settled principles of personal autonomy, protected by a reticulated pattern of tort law, overlaid by both self- and state-imposed regulation. ”); Wall v. Brim , 138 F.2d 478, 481 (5th Cir. 1943) (“The law is well settled that an operation cannot be performed without th e p a t ient’s consent and that one performed without consent, express or implied, is a technical battery or trespass for which the operator is liable.

. . . T h e s a m e p r i n c iple

. . . also supports the holding that a surgeon may not perform an operation different in kind from that consented to or one involving risks and results not contemplated.” (footnotes omitted)). 6 A pro se plaintiff’s pleadings are to be construed liberally with all wellpleaded allegations taken as true. Perez v. United States , 312 F.3d 191, 194-95 (5th Cir. 2002) (citing Haines v. Kerner , 404 U.S. 519, 520 (1972 ) (holding that allegations in a pro se complaint are to be held “to less stringent standards than

I cer tainl y recognize that § 1983 is not a means to feder alize stat e tor t law , and I do 6 not sugges t that the doc tor s can o r s h o u l d be held liable here me rely for violat ions of Texas law

. I cit e t o t hes e c ase s, s tat utes , and st andar ds beca use they info rm the analys is of wh at clea rly es tabl ish ed law sho ws the right t o r e fus e cons ent me ans and wh ethe r it coul d be objec tivel y reas onable for the doc tor s to think they coul d act cont rar y to the pr iso ner- pat ient ’s ref usa l u ndert he fac ts as S amaal leges t hem t o b e. 22 Case: 10-40835 Document: 00511746639 Page: 22 Date Filed: 02/03/2012No. 10-40835

formal pleadings drafted by lawyers”)); Johnson v. Atkins , 999 F.2d 99, 100 (5th Cir. 1993) (citing Brinkmann v. Johnston , 793 F.2d 111, 112 (5th Cir. 1986)). In addition, on summary judgment, “all e v i d ence produced by the nonmovant is taken as true and all inferences are drawn in the nonmovant’s favor.” Celestine v. Petroleos de Venezuella SA , 266 F.3d 343, 349 (5th Cir. 200 1). Applying those standards, Sama’s evidence, as the majority opinion notes, is that she vocife r o u s l y a n d clearly stated that she did not want her ovary removed because she fiercely desired at least the chance to have a b i o l ogical child born through a surrogate. She averred that she stated this at every turn 7
to every medical professional along t h e chain of professionals she encountered—“[w]ith each and every one of the team of [doctors,] I made it clear that I would not sign any permits that allowed the removal of my ovary.” Indeed, she purposely refused to initial the section of the disclosure forms that would permit removal of the ovary even if deemed medically necessary—“I was given no fewer than three lymph node and ovary removal permits and I would not sign them because I would not consent to the removal of my ovary under any circumstances.” Thus, she had taken every step she could possibly take to make her lack of consent to ovary removal known. She then trusted in the doctors to follow her wishes while she was unconscious and unable to physically stop them. Here, it is undisputed that the doctor s d i d j u s t the opposite of Sama’s wishes and removed Sama’s o v a r y a n d, thereby, extinguished her last hope of

It is uncer tain wh ethe r Sam a has pr evious ly had child ren. He r me mo rand um of law 7 in sup p o r t of her fir st ame nded com plai nt st ates that she never had any child ren and that pr ior to her incar cer atio n, Sam a and her husb and had look ed into the pos sib ilit y of harves ting her ova for im plan tat ion in a sur rogat e beca use of her fer tili ty pr oblem s. Ho we ver, a note in h e r m e d i c al rec ord s st ates that Sam a rep ort ed having child ren via sur rogac y bef ore
. Regard les s, one fac t that is res ound ingly clea r, even in that sam e me dic al rec ord s note , is that Sam a d es iredt o k eep he r rem aining ovary. 23 Case: 10-40835 Document: 00511746639 Page: 23 Date Filed: 02/03/2012No. 10-40835

conceiving her ow n biological child. In spite of that, the majority opinion 8 focuses on Sama’s arguable consent to a “radical” hyster e c t o m y . Yet even the majority opinion’s own discussion shows that a “radical” hysterectomy does not necessaril y e n t a i l removal of the ovary. The majority opinion also posits that Sama’s nonconsent was only limited by her purpose for ovarian conservation so that when the doctors concluded in their me d ical judgment that Sama’s ovary

was nonfunctional and possibly (ultimately, but certainly not immediately) lifethreatening, they did not violate her nonconsent by removing it. Maj. Op. at 12- 13. This argument was never made by the doctors. The majority opinion’s argument presupposes that Sama would have consented to the removal of her ovary if she had known that it was “nonfunctional” or (ultimately) “life-threatening.” These ruminations turn the
summary judgment review standard on its head. R a t her than taking Sama’s

e vidence as true, the majority opinion creates an implied consent by d i r e c t l y contravening Sama’s position and evidence and ignoring Sama’s claim that she refused consent “no matter what” and that she was willing to risk needing future surgical procedures a n d e v e n death to conserve her one remaining ovary. Moreover, a h i gh l y disturbing aspect of this case is that despite the doctors’ exercise of “consider e d medical judgment” and their self-serving assessments that it was “unlikely that any egg harvesting could ever be performed,” even the doctors themselves admitted that they could not “state conclusively that Ms. Sama’s ovary did not remain active, with the ability to produce eggs.” Furthermore, the pathology report o n t h e ovary whose continued presence in

Altho ugh it has been the foc us of muc h of the majo rit y opi nion, rem oval of Sam a’s one 8
rem aining ovary wa s not sim ply the end to her abilit y to have biolo gical child ren. Inst ead , ther e are als o im me diat e phys ical cons equenc es that may se riou sly im pac t S a m a

—for
exam ple , the (s om eti me s se vere) horm onal changes caus ed by ovary rem oval. An ovary is not an a pp endi x. 24 Case: 10-40835 Document: 00511746639 Page: 24 Date Filed: 02/03/2012No. 10-40835

Sama’s body was a l l e g e dly life-threatening in the doctors’ judgment, revealed that the ovary was not cancerous. 9 In addition, the core of the issue at bar is the liberty interest in refusing unwanted medical treatment, even life-saving medical treatment. Accordingly, the ultimate purpose for Sama’s desire for ovary conservation is irrelevant if we take as true that Sama refused consent to ovary r e moval “under any circumstances.” The majority opinion’s emphasis on the viability of the ovary or the eventual threat that it may have posed to Sama’s l ife as bringing the removal of Sama’s ovary “within her grant of consent” cannot b e squared with the prisoner-patient’s liberty interest in refusing unwanted medical treatment. Given Sama’s clear instructions not to remove the ovary, we do not have

a murky situation of a d o c t o r having consent to perform a specific surgery but then some emergency arises necessitating some other form of surgery. See Dunham v. Wright , 423 F.2d 940, 941-42 (3d Cir. 1970) (calling it a “blackletter rule, clear and simple on its face,” t h a t “ [ l]egal-medico jurisprudence requires that a physician obtain the consent of a patient before performing surgery unless the need for such consent is obviated by an emergency which places the patient in immediate danger and makes it impractical to secure such consent”). Nor do

we have any other “gray area” where the “not clearly established” jurisprudence arises. We have clear law that says a prisoner-patient has a constitutional right to say “no,” we have a patient who said “no,” and we have doctors who are not claiming that the law would have permitted their conduct despite this “no.” The effect of the majority opinion’s conclusion today is that, once a patient consents to at least some treatment, all treatment is permissible so long as the

I do nothere quarr el wi th the ide a that m edi cal neglige nce is insuf fic ientfor § 1983 9 liabil ity. Inst ead , I se ek to count er the majo rit y opi nion’ s ass ump tio n that the right to ref use cons ent can be vitiat ed by the doc tor ’s ow n (ap par entl y inco rre ct) “m edi cal judgm ent” agains t the wi ll of his p atie nt or thatitw ouldber eas onable f or a d oct or to thinks o. 25 Case: 10-40835 Document: 00511746639 Page: 25 Date Filed: 02/03/2012No. 10-40835

doctor deems it necessary. What, then, is left of the right to refuse treatment? At the very least, Sama should be permitted to develop this issue in the district court. Furthermore, at this juncture, whether Sama is entitled to remand on her Fourteenth Amendment claim should n o t b e diminished or influenced by her chances of obtaining damages at trial. For the foregoing rea s o n s , I respectfully dissent to Section VII of the majority opinion.

26 Case: 10-40835 Document: 00511746639 Page: 26 Date Filed: 02/03/2012