Ruben Guzman Hernandez v. T. W. McCRAKEN, El Mirage Police Officer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN GUZMAN HERNANDEZ,
Plaintiff-Appellee,
v.
T. W. McCRAKEN, El Mirage Police
Officer,
Defendant-Appellant,
and
UNKNOWN PARTIES, named as John Doe
Nurse 1 and 2 and John Doe Security;
ALAN GREENBOAM, M.D., Physician at
Banner Boswell Memorial Hospital,
Defendants.
No. 18-16694
D.C. No. 2:16-cv-04238-GMS-
ESW
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-16694
Defendant T.W. McCracken appeals from the district court’s order denying
him qualified immunity on Arizona state prisoner Ruben Guzman Hernandez’s 42
U.S.C. § 1983 claims related to Hernandez’s forced catheterization. We have
jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291. Mitchell v.
Forsyth, 472 U.S. 511, 526-27 (1985). We review de novo the district court’s
ruling on qualified immunity. George v. Edholm, 752 F.3d 1206, 1214 (9th
Cir. 2014). We dismiss in part, reverse in part, and remand.
We lack jurisdiction to consider McCracken’s appeal of the district court’s
denial of qualified immunity with respect to Hernandez’s Fourth Amendment
claim because McCracken’s sole challenge to the denial of qualified immunity on
this claim is that the district court erred in finding genuine disputes of material fact
exist regarding the medical necessity of the catheterization and McCracken’s
involvement in the procedure. See Sialoi v. San Diego, 823 F.3d 1223, 1230 (9th
Cir. 2016) (when reviewing a denial of qualified immunity the court of appeals
lacks jurisdiction to review a district court’s conclusion that genuine factual
disputes exist). We dismiss McCracken’s appeal of the denial of qualified
immunity as to Hernandez’s Fourth Amendment claim.
The district court determined McCraken was not entitled to qualified
immunity on Hernandez’s Fourteenth Amendment claim for violation of
Hernandez’s right to refuse unwanted medical treatment. However, the district

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3 18-16694
court erred in concluding that a reasonable officer would have known that a forced
catheterization violates an arrestee’s due process right to refuse medical treatment
because none of the cases cited by Hernandez or relied upon by the district court
find a Fourteenth Amendment violation under similar circumstances. See George,
752 F.3d at 1221 (finding an officer entitled to qualified immunity because neither
Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), nor any
other case cited by the parties, established that an arrestee has the right under the
Fourteenth Amendment to refuse invasive medical treatment such as forced
sedation, anoscopy, intubation and bowel excavation). We reverse the district
court’s denial of qualified immunity as to Hernandez’s Fourteenth Amendment
claim, and remand with instructions to grant McCracken’s motion for summary
judgment on the basis of qualified immunity as to the Fourteenth Amendment
claim.
The parties shall bear their own costs on appeal.
DISMISSED in part, REVERSED in part, and REMANDED.

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18-16694
Hernandez v. McCraken, et al., No. 18-16694
CALLAHAN, Circuit Judge, concurring in part and dissenting in part:
I concur in the reversal of the district court’s denial of qualified immunity as
to the Fourteenth Amendment claim. I dissent as to the dismissal of the appeal of
the denial of qualified immunity as to the Fourth Amendment claim. I would find
jurisdiction and grant qualified immunity as to the Fourth Amendment claim.
FILED
JAN 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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