June 4, 2020- Timothy Young v. Gila Regional Medical Center, No. A-1-CA-36474

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
Opinion Number: _______________	2
Filing Date: JUNE 4, 2020	3
No. A-1-CA-36474	4
TIMOTHY YOUNG,	5
Plaintiff-Appellant,	6
v.	7
GILA REGIONAL MEDICAL	8
CENTER and BRYANT	9
BEESLEY, M.D.,	10
Defendants-Appellees.	11
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY	12
J.C. Robinson, District Judge	13
Kennedy, Kennedy & Ives	14
Joseph P. Kennedy	15
Shannon L. Kennedy	16
Adam C. Flores	17
Albuquerque, NM	18
for Appellant	19
Serpe, Jones, Andrews, Callender & Bell, PLLC	20
M. Randall Jones	21
Ryan L. Clement	22
Houston, TX	23
for Appellee Gila Regional Medical Center	24
Court of Appeals of New Mexico
Filed 6/4/2020 9:30 AM

Rodey, Dickason, Sloan, Akin & Robb, P.A.	1
Edward R. Ricco	2
Rick Beitler	3
Melanie B. Stambaugh	4
Albuquerque, NM	5
for Appellee Bryant Beesley, M.D.	6

OPINION	1
B. ZAMORA, Judge.	2
{1} 	Plaintiff Timothy Young sued Defendants Gila Regional Medical Center	3
(GRMC), Dr. Bryant Beesley, and others not party to this appeal for negligence,	4
battery, and civil rights violations stemming from a digital rectal examination and	5
x-ray conducted by Beesley while Plaintiff was in the custody of the Hidalgo County	6
Sheriff’s Department. Prior to trial, the district court dismissed all claims against	7
GRMC on summary judgment and dismissed Plaintiff’s civil rights claims against	8
Beesley on grounds of qualified immunity. Following a trial on the merits for	9
Plaintiff’s remaining battery and negligence claims, a jury returned a verdict in favor	10
of Beesley and the district court entered judgment for all Defendants.	11
{2} 	On appeal, Plaintiff contends the district court erred in: (1) granting Beesley’s	12
motion 	for 	summary 	judgment 	on 	qualified 	immunity 	grounds 	and 	denying	13
Plaintiff’s motion for summary judgment on his civil rights claims; (2) denying	14
Plaintiff’s motion for judgment as a matter of law against Beesley on Plaintiff’s	15
battery claim; (3) dismissing Plaintiff’s claim for punitive damages against Beesley;	16
and (4) granting GRMC’s motion for summary judgment on the grounds that	17
Plaintiff failed to provide timely notice under the New Mexico Tort Claims Act (the	18
TCA), NMSA 1978, §§ 41-4-1 to -27 (1976, as amended through 2020). We	19
requested supplemental briefing from Plaintiff and Beesley on the issue of qualified	20

2
immunity. We reverse the district court’s orders granting summary judgment in	1
favor of Beesley and denying Plaintiff’s motion for summary judgment on his civil	2
rights claims, but otherwise affirm. We remand this matter to the district court for	3
further proceedings to determine whether qualified immunity bars Plaintiff’s civil	4
rights claims against Beesley and whether Plaintiff is entitled to judgment on said	5
claims.	6
BACKGROUND	7
{3} 	On October 13, 2012, at approximately 9:42 p.m., Plaintiff and a companion	8
were traveling in Plaintiff’s vehicle in Lordsburg, New Mexico, when they were	9
pulled over by Deputy Javier Peru of the Hidalgo County Sheriff’s Department for	10
failure to signal. According to the officer, Plaintiff’s demeanor and actions during	11
the stop gave rise to a suspicion that he was transporting contraband. Deputy Peru	12
requested and received consent from Plaintiff to search his vehicle, which he did	13
with the assistance of two other officers. The search revealed no evidence of a	14
controlled substance, but the officers determined that Plaintiff’s “inconsistent stories	15
and nervous behavior” warranted summoning a K-9 and handler, Lieutenant Patrick	16
Green, to conduct a more thorough search of the vehicle. That search also failed to	17
uncover any drugs inside the vehicle, as did a more thorough frisk of Plaintiff.	18
However, according to Lieutenant Green, the canine alerted to the odor of a	19
controlled substance on the driver’s seat and the center console. Based on this alert,	20

3
Lieutenant Green decided to seek a search warrant for Plaintiff and his vehicle. The	1
officers took Plaintiff into custody and drove him to the Hidalgo County Sheriff’s	2
Office to await issuance of the warrant.	3
{4} 	Lieutenant Green applied for the warrant, supporting his application with an	4
affidavit that stated his belief that Plaintiff had drugs “in or on his person.” However,	5
Lieutenant Green only “request[ed] that the [c]ourt find[] that probable cause exists	6
to authorize a detailed search of [Plaintiff’s] vehicle.” At approximately 1:45 a.m.,	7
the district court issued a warrant authorizing a search of “the person or property	8
described in the Affidavit.”1 Nothing in the warrant explicitly authorized an invasive	9
search of Plaintiff’s body or an x-ray examination.	10
{5} 	Following issuance of the warrant, Lieutenant Green and Deputy Peru	11
transported Plaintiff in handcuffs to GRMC in Silver City. The officers spoke with	12
the intake nurse at the hospital and indicated that they had a warrant and they	13
suspected Plaintiff had either ingested or hidden drugs in his rectum. Plaintiff was	14
taken to an examination room, where Beesley, who was the emergency physician on	15
duty, performed a basic physical examination and took a medical history. Beesley	16
testified that, prior to entering the examination room or speaking with Plaintiff, he	17
1 It is not clear why the warrant requested a search of Plaintiff’s vehicle instead
of his person. In sworn testimony, Deputy Green stated that he “drafted a search
warrant for [Plaintiff’s] person.”

4
reviewed the information in the triage notes in Plaintiff’s medical record and knew	1
that Plaintiff was there for a search based on a concern that he had impacted	2
controlled substances in his rectum. He also spoke with law enforcement officers	3
before speaking with Plaintiff, but the parties’ accounts of the substance of these	4
conversations vary, as discussed in more detail below. Beesley testified that he	5
“skimmed through” the search warrant but that he did not review it in any detail,	6
determining only that the name on the warrant matched Plaintiff’s name, and that he	7
did not believe he read the affidavit. Plaintiff told Beesley that he had not inserted	8
drugs into his rectum, but this did not dissuade Beesley from conducting the	9
examination. Beesley testified his decision to perform the examination was based on	10
his desire to assist law enforcement and his concern that, if Plaintiff had ingested or	11
impacted drugs in his rectum, Plaintiff could suffer a medical emergency if the drugs	12
entered his system.	13
{6} 	Beesley instructed Plaintiff to adjust his position on the examination table to	14
assist in the performance of the digital rectal examination and Plaintiff complied.	15
Plaintiff asked Beesley, “Why we got to do this?” and Beesley replied, “Because I	16
have a warrant.” Plaintiff responded, “Let’s just get it over with,” and Beesley	17
performed the rectal examination. When this examination failed to identify the	18
presence 	of 	drugs, 	Beesley 	ordered 	an 	abdominal 	x-ray 	of 	Plaintiff. 	This	19
examination also failed to identify the presence of drugs in Plaintiff’s body. Plaintiff	20

5
was later released by the Hidalgo County Sheriff’s Department, after having been in	1
custody for approximately seven hours. He was not charged with any offense.	2
{7} 	Plaintiff filed a complaint against GRMC and Beesley in October 2014,	3
alleging state law claims for battery, negligence, unfair practices, as well as claims	4
for civil rights violations pursuant to 42 U.S.C. § 1983 (2018). Prior to trial, the	5
parties 	filed 	numerous 	motions, 	including 	competing 	motions 	for 	summary	6
judgment. Important to this appeal, GRMC and Beesley both sought summary	7
judgment on the basis that qualified immunity shielded them from liability for	8
Plaintiff’s civil rights claims, and both challenged Plaintiff’s punitive damages	9
claims. Plaintiff filed a competing motion for summary judgment on his civil rights	10
claim against Beesley, alleging that the doctor deprived Plaintiff of his Fourth	11
Amendment right to be free of an unreasonable search. GRMC also filed a motion	12
challenging the district court’s subject matter jurisdiction for Plaintiff’s battery and	13
negligence claims on the grounds that Plaintiff had failed to provide timely notice	14
under the TCA. The district court granted GRMC’s motions for summary judgment	15
and dismissed GRMC from the litigation. The district court also found, with respect	16
to the competing motions for summary judgment on Plaintiff’s civil rights claims,	17
that Beesley was shielded by qualified immunity; consequently, the court granted	18
Beesley’s 	motion 	for 	summary 	judgment 	and 	denied 	Plaintiff’s 	motion. 	All	19
remaining claims, with the exception of Plaintiff’s battery and ordinary negligence	20

6
claims against Beesley, were either dismissed by the court or by stipulation of the	1
parties prior to trial.	2
{8} 	Following the close of evidence, the jury found in favor of Beesley on both	3
claims. After the district court entered final judgment, Plaintiff filed a renewed	4
motion for judgment as a matter of law on his battery claim, which the district court	5
denied.	6
DISCUSSION	7
I. 	Beesley’s Motion for Summary Judgment Based on Qualified Immunity	8
and Plaintiff’s Motion for Summary Judgment on His § 1983 Claim	9
{9} 	Plaintiff first argues the district court erred in granting Beesley’s motion for	10
summary judgment on the basis of qualified immunity and denying his motion for	11
summary judgment on the civil rights claims pursuant to § 1983 (hereinafter § 1983	12
claim). Plaintiff contends the district court correctly determined that the search	13
warrant did not authorize a digital rectal examination or abdominal x-ray, but that it	14
engaged in a flawed analysis of qualified immunity when it granted Beesley’s	15
motion for summary judgment. Plaintiff further argues the district court erred when	16
it denied his own motion for summary judgment on his § 1983 claim because the	17
search warrant in this case did not specifically and particularly authorize an invasive	18
bodily 	search, 	rendering 	the 	rectal 	examination 	and 	abdominal 	x-ray	19
unconstitutional as a matter of law. Beesley contends that even if the district court’s	20
reasoning in deciding the issue of qualified immunity “is less than transparent,” the	21

7
district court’s determination that he was entitled to qualified immunity with respect	1
to Plaintiff’s civil rights claims was “indisputably correct as a matter of law[,]” and	2
is dispositive of the § 1983 claim.	3
{10} 	“The applicability of qualified immunity is a question of law that we review	4
de novo.” Starko v. Gallegos, 2006-NMCA-085, ¶ 11, 140 N.M. 136, 140 P.3d 1085.	5
While “[§] 1983 provides a cause of action for money damages against a state	6
official in his or her individual capacity for the deprivation of federal constitutional	7
or statutory rights[,]” Garcia-Montoya v. State Treasurer’s Office, 2001-NMSC-	8
003, ¶ 8, 130 N.M. 25, 16 P.3d 1084, “an individual official’s liability is limited by	9
the doctrine of qualified immunity, which shields government officials performing	10
discretionary functions from liability for civil damages insofar as their conduct does	11
not violate clearly established statutory or constitutional rights of which a reasonable	12
person would have known.” Starko, 2006-NMSC-085, ¶ 11 (internal quotation	13
marks and citation omitted); see Garcia-Montoya, 2001-NMSC-003, ¶ 8 (“Qualified	14
immunity is necessary to protect public officers from undue interference with their	15
duties and from potentially disabling threats of liability.” (internal quotation marks	16
and citation omitted)). “A finding of qualified immunity shields [an] officer from	17
suit, not just from liability for monetary damages.” Romero v. Sanchez, 1995-	18
NMSC-028, ¶ 3, 119 N.M. 690, 895 P.2d 212.	19

8
{11} 	A claim under § 1983 requires that the alleged deprivation of a plaintiff’s	1
constitutional right be committed by a person acting under color of state law. 42	2
U.S.C. § 1983; see Warner v. Grand Cty., 57 F.3d 962, 964 (10th Cir. 1995).	3
Although Beesley is a private individual and not a state official, “[s]tate action may	4
be found in the exercise by a private individual of powers traditionally exclusively	5
reserved to the [s]tate.” Rodriques v. Furtado, 950 F.2d 805, 813 (1st Cir. 1991)	6
(internal quotation marks and citation omitted); see Adickes v. S.H. Kress & Co., 398	7
U.S. 144, 152 (1970) (stating that a private party need not be a member of law	8
enforcement to act “under color of law,” and providing that a party who “is a willful	9
participant in joint activity with the [s]tate or its agents” acts “under color of law”	10
for purposes of the statute (internal quotation marks and citation omitted)). As a	11
result, federal courts have also recognized in limited circumstances that when a	12
private individual assumes the role of a state actor in conducting a search	13
traditionally within the power of the state, he may be entitled to the defense of	14
qualified immunity. Warner, 57 F.3d at 967 (holding that “a private individual who	15
performs a government function pursuant to a state order or request is entitled to	16
qualified immunity if a state official would have been entitled to such immunity had	17
he performed the function himself”); Rodriques, 950 F.2d at 815 (holding that a	18
doctor was entitled to the defense of qualified immunity where his liability was	19
“asserted upon the fact that he operated as a state actor in conducting a search	20

9
procedure traditionally within the power of the [s]tate”). The parties do not dispute	1
that Beesley functioned as a state actor here.	2
{12} 	Once a defense of qualified immunity has been raised by a defendant, in order	3
to defeat it, the “plaintiff must demonstrate that (1) the defendant’s alleged conduct	4
violated a constitutional or statutory right, and (2) the right was clearly established	5
at the time of the [alleged] conduct.” Benavidez v. Shutiva, 2015-NMCA-065, ¶ 6,	6
350 P.3d 1234 (internal quotation marks and citation omitted). “For a right to be	7
clearly established, the contours of the right must be sufficiently clear that a	8
reasonable official would understand that what he is doing violates that right.” Doe	9
v. Leach, 1999-NMCA-117, ¶ 10, 128 N.M. 28, 988 P.2d 1252 (alteration, internal	10
quotation marks, and citation omitted). A plaintiff must do more than invoke an	11
abstract right; the right claimed by the plaintiff must be “clearly established in a	12
particularized sense.” Yount v. Millington, 1993-NMCA-143, ¶ 28, 117 N.M. 95,	13
869 P.2d 283 (internal quotation marks and citation omitted). However, the plaintiff	14
need not show that “the very action in question has previously been held unlawful.”	15
Chavez v. Bd. of Cty. Comm’rs of Curry Cty., 2001-NMCA-065, ¶ 16, 130 N.M.	16
753, 31 P.3d 1027 (internal quotation marks and citation omitted); see id. ¶ 20	17
(stating that “the absence of a case directly on point does not mean that a public	18
official is automatically entitled to qualified immunity”). “The more obviously	19
egregious the conduct in light of prevailing constitutional principles, the less	20

10
specificity is required from prior case law to clearly establish the violation.” Pierce	1
v. Gilchrist, 359 F.3d 1279, 1298 (10th Cir. 2004).	2
{13} 	Plaintiff argues Beesley violated his clearly established constitutional right to	3
be free from an unreasonable search by conducting a digital rectal examination and	4
authorizing an abdominal x-ray on him without being presented with a warrant that	5
specifically authorized an invasive bodily search. Beesley, focusing primarily on the	6
second prong of the qualified immunity analysis, argues that Plaintiff failed to	7
establish 	“that 	a 	reasonable 	physician 	would 	not 	have 	performed 	a 	rectal	8
examination and ordered an abdominal x-ray of [Plaintiff] when presented with a	9
search warrant for [Plaintiff]’s ‘person’ ” and because it was reasonable for Beesley	10
to rely on the officers’ representations that the search was authorized. We first	11
address whether Beesley’s conduct violated a constitutional right, and then we	12
address whether the right was clearly established at the time of the conduct.	13
A. 	Constitutional Violation	14
{14} 	The Fourth Amendment guarantees the right to be free of unreasonable	15
searches and seizures. U.S. Const. amend. IV. Its “overriding function . . . is to	16
protect personal privacy and dignity against unwarranted intrusion by the [s]tate.”	17
Schmerber v. California, 384 U.S. 757, 767 (1966). Absent “a few specifically	18
established 	and 	well-delineated 	exceptions[,]” 	such 	as 	consent 	or 	exigent	19

11
circumstances, 2 a law enforcement search is per se unreasonable if conducted	1
without a warrant. Katz v. United States, 389 U.S. 347, 357 (1967); Doe v. Woodard,	2
912 F.3d 1278, 1290-91 (10th Cir. 2019) (stating that warrantless searches are per	3
se unreasonable, subject to exceptions based on consent, exigent circumstances, or	4
“special needs beyond the normal need for law enforcement” (internal quotation	5
marks and citation omitted)). The issuance of a warrant requires the existence of	6
“probable cause, supported by [o]ath or affirmation, and particularly describing the	7
place to be searched and the persons or things to be seized.” U.S. Const. amend. IV.	8
{15} 	It is settled law that the intrusiveness of a search is a critical factor in	9
determining its reasonableness, and that searches of the interior of the body are	10
among the most intrusive searches law enforcement may conduct. See Schmerber,	11
384 U.S. at 767 (stating “overriding function of the Fourth Amendment is to protect	12
2 Neither exception applies to this case. Although Beesley contends he was
concerned for Plaintiff’s health during the examination, he has not argued that
exigent circumstances obviated the need for a search warrant. While he has alleged
consent with respect to Plaintiff’s battery claim, which we discuss below, he has not
argued that Plaintiff offered the type of consent “freely and voluntarily given” that
would defeat the need for a warrant authorizing a search by law enforcement.
Bumper v. North Carolina, 391 U.S. 543, 548 (1968); see United States v. Sanchez,
608 F.3d 685, 690 (10th Cir. 2010) (stating that consent requires “clear and positive
testimony that consent was unequivocal and specific and freely and intelligently
given” in the absence of “implied or express duress or coercion” (internal quotation
marks and citation omitted)). In any case, “[a] search conducted in reliance upon a
warrant cannot later be justified on the basis of consent if it turns out that the warrant
was invalid.” Bumper, 391 U.S. at 549.

12
personal 	privacy 	and 	dignity 	against 	unwarranted 	intrusion 	by 	the 	[s]tate”).	1
Consequently, in Schmerber, the United States Supreme Court held that search	2
warrants are ordinarily “required where intrusions into the human body are	3
concerned.” Id. at 770; see Marshall v. Columbia Lea Reg’l Hosp., 474 F.3d 733,	4
741 (10th Cir. 2007) (stating that a blood draw requires either a warrant or probable	5
cause and 	an 	exigent circumstance). The court further held 	that the Fourth	6
Amendment “forbid[s bodily] intrusions on the mere chance that desired evidence	7
might be obtained,” stating that “[s]earch warrants are ordinarily required for	8
searches of dwellings, and absent an emergency, no less could be required where	9
intrusions into the human body are concerned.” Schmerber, 384 U.S. at 770.	10
{16} 	Although Schmerber concerned a blood draw, the clear weight of authority	11
from the federal and state courts is that body cavity searches also require a warrant	12
supported by probable cause. See, e.g., Fuller v. M.G. Jewelry, 950 F.2d 1437, 1449-	13
50 (9th Cir. 1991) (holding that a warrant was required to conduct body cavity	14
searches); State v. Barnes, 159 P.3d 589, 591 (Ariz. Ct. App. 2007) (holding that	15
law enforcement must obtain a warrant before removing items partially protruding	16
from an arrestee’s rectum); People v. More, 764 N.E.2d 967, 969 (N.Y. 2002)	17
(holding warrantless body cavity search incident to arrest was unreasonable where	18
there was no evidence that the delay necessary to obtain a warrant posed threat to	19
officer safety or destruction of the evidence); Hughes v. Commonwealth, 524 S.E.2d	20

13
155, 160-61 (Va. Ct. App. 2000) (holding that a manual body cavity search was	1
unreasonable where officer did not have a warrant and plaintiff consented only to a	2
pat-down search); see also United States v. Booker, 728 F.3d 535, 547 (6th Cir.	3
2013) (stating that “when there [is] time to obtain a court order and the police	4
decline[] to seek one, the suspect’s privacy interests should be given particular	5
solicitude”). This is not surprising, because federal courts have consistently held that	6
body cavity searches are particularly degrading, embarrassing, and humiliating. See	7
United 	States 	v. 	Gray, 	669 	F.3d 	556, 	564-65 	(5th 	Cir. 	2012) 	(stating 	that	8
proctoscopic examination of the plaintiff’s anus “targeted an area of the body that is	9
highly personal and private”), vacated on other grounds by 568 U.S. 802 (2012);	10
Blackburn v. Snow, 771 F.2d 556, 564 (1st Cir. 1985) (describing a visual and	11
manual body cavity inspection as “perhaps the greatest personal indignity searching	12
officials can visit upon an individual” (internal quotation marks and citation	13
omitted)); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1272 (7th Cir. 1983)	14
(describing 	body 	cavity 	searches 	as 	“demeaning, 	dehumanizing, 	undignified,	15
humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation	16
and submission” (internal quotation marks and citation omitted)); United States v.	17
Cameron, 538 F.2d 254, 258 (9th Cir. 1976) (stating that “the person accused of	18
concealing contraband within his body is faced with the real prospect that the most	19
intimate portions of his anatomy will be invaded”).	20

14
{17} 	The Fourth Amendment also requires that warrants specify with particularity	1
“the place to be searched, and the persons or things to be seized.” U.S. Const. amend.	2
IV. “Specificity is required in the warrant itself in order to limit the discretion of the	3
executing officers as well as to give notice to the party searched.” United States v.	4
Johnson, 541 F.2d 1311, 1315 (8th Cir. 1976).3 Consequently, “[t]he uniformly	5
applied rule is that a search conducted pursuant to a warrant that fails to conform to	6
the particularly requirement of the Fourth Amendment is unconstitutional.” Groh v.	7
Ramirez, 540 U.S. 551, 559 (2004) (internal quotation marks and citation omitted)	8
(stating that “the presumptive rule against warrantless searches applies with equal	9
force to searches whose only defect is a lack of particularity in the warrant” and	10
holding that a warrant that failed to describe items to be seized with particularity was	11
so obviously deficient as to render the search “warrantless”). In the context of	12
invasive 	body 	searches, 	federal 	courts 	have 	recognized 	that 	the 	specificity	13
requirement necessitates that the warrant identify the area of the body to be searched	14
with particularity, and that boilerplate language authorizing the search of the	15
defendant’s “ ‘person’ was not sufficient to authorize a body cavity search.” United	16
3 Some courts have held that specificity in an affidavit may cure the lack of
particularity in a warrant, provided the affidavit accompanies the warrant and the
warrant uses appropriate words of incorporation. Johnson, 541 F.2d at 1315. Here,
however, even though the affidavit included Deputy Green’s assertion that he
believed Plaintiff was concealing drugs “in or on his person[,]” the warrant only
requested authority for a search of Plaintiff’s vehicle.

15
States v. Nelson, 36 F.3d 758, 760 (8th Cir. 1994) (holding that even though the	1
supporting affidavit requested permission to conduct a body cavity search, it could	2
not cure the generality of the warrant because the affidavit was not incorporated by	3
reference into the warrant); see Gray, 669 F.3d at 565 (holding that the search of	4
arrestee using proctoscope exceeded the scope of a warrant authorizing “a qualified	5
medical technician to examine [the defendant] for the concealment of controlled	6
substances and to remove said controlled substances from his body in accordance	7
with recognized accepted medical procedure”); Spencer v. Roche, 659 F.3d 142,	8
144-48 (1st Cir. 2011) (holding digital rectal examination and x-ray of plaintiff’s	9
organs surrounding the anal cavity was not unreasonable where warrant specified	10
“anal cavity” search).	11
{18} 	In this case, the search warrant authorized only a search of the “person or	12
property specified in the affidavit” which, in turn, requested authority only to search	13
Plaintiff’s vehicle. We think it manifestly clear that the warrant did not authorize a	14
search of Plaintiff’s person, let alone an invasive search of Plaintiff’s body, thereby	15
rendering the search unconstitutional as a matter of law.4 See Williams v. Kaufman	16
4 We are not persuaded by Beesley’s claim that “[i]t takes little effort and
nothing more than common sense to understand that the warrant was intended to
target [Plaintiff’s] rectal area” if the warrant and affidavit are read together.
Whatever Deputy Green “intended” when he applied for the warrant, the affidavit
specifically requested only a search of Plaintiff’s vehicle.

16
Cty., 352 F.3d 994, 1004-05 (5th Cir. 2003) (holding that a strip search of patrons at	1
a night club 	violated 	clearly established 	constitutional 	law where a 	warrant	2
authorized only the search of the premises); Bolden v. Vill. of Monticello, 344 F.	3
Supp. 2d 407, 419 (S.D.N.Y. 2004) (holding that warrant authorizing search of	4
premises and “persons” did not authorize strip searches or visual or invasive body	5
cavity searches of detainees). We therefore hold there are no genuine issues of	6
material 	fact 	that 	the 	procedures 	performed 	by Beesley violated 	the 	Fourth	7
Amendment.5
8
B. 	Clearly Established	9
{19} 	Having found that Plaintiff has established a constitutional violation, we turn	10
next to the question of whether the law prohibiting the search was clearly established	11
at the time it was conducted. See Romero, 1995-NMSC-028, ¶ 5. We examine this	12
question in light of the circumstances of this case, asking whether “an objectively	13
reasonable, similarly situated official would have known that the challenged actions	14
would violate the Constitution.” Cockrell v. Bd. of Regents of N.M. State Univ.,	15
5 In analyzing whether Beesley violated the Fourth Amendment, the parties do
not distinguish between the cavity search and the x-ray search and so neither have
we. See State ex rel. Human Servs. Dep’t v. Staples, 1982-NMSC-099, ¶¶ 3, 5, 98
N.M. 540, 650 P.2d 824 (stating that “courts risk overlooking important facts or legal
considerations when they take it upon themselves to raise, argue, and decide legal
questions overlooked by the lawyers who tailor the case to fit within their legal
theories” (alteration, internal quotation marks, and citation omitted)).

17
1999-NMCA-073, ¶ 9, 127 N.M. 478, 983 P.2d 427; see Sanchez v. Pereira-Castillo,	1
590 F.3d 31, 54-55 (1st Cir. 2009) (holding that the court must determine whether a	2
reasonable physician would have understood that her conduct violated the plaintiff’s	3
Fourth Amendment right to be free of unreasonable searches and seizures for	4
purposes of qualified immunity). “In evaluating whether the law was clearly	5
established, we ordinarily look to decisions of the United States Supreme Court, the	6
federal courts of appeal, and the highest state court where the cause of action arose.”	7
Chavez, 2001-NMCA-065, ¶ 20.	8
{20} 	Beesley argues that, as a physician and “a non-expert in the law,” he could not	9
be expected to know that he was not permitted to search the body cavity of Plaintiff’s	10
body in the absence of a particularized warrant authorizing such a search. This is	11
incorrect. “[A] reasonably competent public official should know the law governing	12
his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Specifically, an	13
attending physician is required “to learn the constitutional requirements of invasive	14
body searches.” Rodriques, 950 F.2d at 815; see Sanchez, 590 F.3d at 55 (stating	15
“physicians asked to perform invasive body searches should not comply uncritically	16
with the requests of prison officials and thereby become complicit in depriving	17
prisoners of their constitutional rights”). For this reason, a reasonable physician	18
should have known that a manual rectal cavity search and abdominal x-ray were	19

18
unconstitutional unless authorized by a valid, particularized warrant, as discussed	1
above.	2
{21} 	Given this framework, we must evaluate whether a physician in Beesley’s	3
position could “reasonably but mistakenly conclude” that his actions were lawful	4
and in accordance with the Fourth Amendment. Anderson v. Creighton, 483 U.S.	5
635, 641 (1987). On the record before us, Beesley did not claim to have read the	6
search warrant affidavit or to have critically read the warrant itself beyond	7
confirming that it pertained to Plaintiff, nor does the record reflect that he consulted	8
with anyone other than the officers about the warrant. See, e.g., State v. Brown, 932	9
N.W.2d 283, 287 (Minn. 2019) (noting that the doctor at the first hospital refused a	10
police officer’s request to expand the search of the defendant suspected of	11
concealing drugs in his rectum beyond a visual examination after consulting with	12
the hospital’s lawyer, and that the police officer then obtained a more particularized	13
warrant and took the defendant to a second hospital where the doctor consulted with	14
the on-call deputy county attorney before executing the second warrant); see also	15
Rodriques, 950 F.2d at 815-16 (holding that, where a warrant specified a vaginal	16
search and was facially valid, the physician was entitled to qualified immunity	17
whether or not the warrant was supported by probable cause). Because Beesley took	18
no action to independently verify the scope of the warrant’s authorization, the	19
question we review is narrow: whether a reasonable physician would have believed	20

19
a manual search of Plaintiff’s rectum or an x-ray of his abdomen was lawful based	1
on the information conveyed by the police officers who held Plaintiff in custody. See	2
Chavez, 2001-NMCA-065, ¶ 26 (“The relevant question is whether a reasonable	3
officer could have believed the warrantless . . . search to be lawful, in light of the	4
clearly established law and the information possessed at the time.” (emphasis	5
added)).	6
{22} 	We, however, are unable to determine, on the record before us, the answer to	7
this question because the parties gave conflicting and various accounts of the	8
information conveyed by the officers and the extent to which Beesley relied upon it	9
when deciding to perform the rectal examination and x-ray. See Zamora v. St.	10
Vincent Hosp., 2014-NMSC-035, ¶ 9, 335 P.3d 1243 (“In reviewing an order on	11
summary judgment, we examine the whole record on review, considering the facts	12
in a light most favorable to the nonmoving party and drawing all reasonable	13
inferences in support of a trial on the merits.”). First, it is unclear what the officers	14
told Beesley about the warrant. For example, at trial, Beesley testified that, based on	15
a triage note, he knew before speaking with the officers that Plaintiff was at the	16
hospital for a search and that the concern was either ingestion or rectal impaction of	17
controlled substances. Beesley testified that he spoke with the officers when he	18
entered the examination room, and when asked specifically what the officers	19
represented to him, Beesley responded, “That they were here with the patient, they	20

20
suspected drug ingestion, and that I find out whether he impacted or ingested drugs.”	1
Beesley answered “Yes” when asked if the officers represented to him that the	2
warrant “authorized [him] to do the examination to look for the drugs.” Because the	3
question posed to Beesley failed to specify the type of examination authorized by	4
the warrant, we cannot say whether the officers represented that the warrant	5
authorized an invasive search. However, Plaintiff testified in his deposition that he	6
“heard the officer stat[e] that he needed a warrant executed, and it was for the	7
searching of me, and they wanted x-rays, and they wanted . . . a digital exam or	8
something to my rectum.” If this testimony is credited and it is found that Beesley	9
merely conducted the search the officers represented was authorized by the warrant,	10
he may have been entitled to rely on the representations of law enforcement. “If	11
police officers, trained in Fourth Amendment law and specifically charged to	12
conduct their activities in conformance with the Constitution, are entitled to rely on	13
legal or factual determinations made by other officers, then [medical professionals]	14
should be able to do the same.” Marshall, 345 F.3d at 1180 (stating that it is	15
objectively reasonable for private parties to rely on the orders and determinations of	16
law enforcement officials); see also Warner, 57 F.3d at 967 (“We hold that a private	17
individual who performs a government function pursuant to a state order or request	18
is entitled to qualified immunity if a state official would have been entitled to such	19
immunity had he performed the function himself.”); cf. Ramirez v. Butte-Silver Bow	20

21
Cty., 298 F.3d 1022, 1028 (9th Cir. 2002) (stating it is well settled that police officers	1
may “accept the word of their superiors that they have a warrant and that it is	2
valid[,]” and “so long as they make inquiry as to the nature and scope of the warrant,	3
their reliance on [a superior’s] representations about it is reasonable” (alterations,	4
internal quotation marks, and citation omitted)); Guerra v. Sutton, 783 F.2d 1371,	5
1375 (9th Cir. 1986) (stating that it is not necessary for line officers to see a warrant	6
authorizing a search, but such officers had a duty to inquire as to the nature and scope	7
of the warrant).	8
{23} 	The record here is also ambiguous as to the extent Beesley relied upon the	9
information conveyed by the officers in deciding the scope of the search. At trial,	10
for example, Beesley testified that he did not recall whether Lieutenant Green	11
directed him to perform the digital rectal examination of Plaintiff, but that he “pretty	12
much knew what [he] was going to do before [he] came into the [examination]	13
room.” He also testified that he was concerned that if Plaintiff had drugs in his	14
rectum, there was a risk to Plaintiff if one of the packets ruptured and the drugs	15
entered his system. If Beesley chose the procedure on his own initiative using his	16
own judgment, then he would not be entitled to qualified immunity under the	17
circumstances. Cf. Huguez v. United States, 406 F.2d 366, 378-79 (9th Cir. 1968)	18
(holding that without a search warrant, a physician was not justified in performing a	19
digital rectal probe and the search could not be upheld as a constitutional border	20

22
search); see also George v. Edholm, 752 F.3d 1206, 1221 (9th Cir. 2014) (“Case law	1
clearly established that the possibility that a baggie of drugs could rupture, standing	2
alone, cannot justify a warrantless search as intrusive as that conducted here.”).	3
{24} 	Because 	there 	are 	factual 	disputes 	as 	to 	the 	content 	of 	the 	officers’	4
representations concerning the validity and permissible scope of the search and	5
Beesley’s reliance on those representations in conducting the search, it was error for	6
the district court to conclude as a matter of law that Beesley was entitled to qualified	7
immunity. On remand, the district court should determine whether Beesley relied on	8
any representations of law enforcement regarding the lawfulness and scope of the	9
search, and if so, whether Beesley’s reliance upon those representations was	10
objectively reasonable under the circumstances.	11
{25} 	For all the foregoing reasons, we reverse the district court’s grant of summary	12
judgment in favor of Beesley. Likewise, because the district court’s denial of	13
Plaintiff’s motion for summary judgment on his § 1983 claim was based on its	14
flawed determination that Beesley was entitled to qualified immunity as a matter of	15
law, we reverse the district court’s ruling in this regard. We remand for further	16
proceedings consistent with this opinion.	17

23
II. 	Plaintiff’s Motion for Summary Judgment as a Matter of Law on the	1
Issue of Consent	2
{26} 	Plaintiff’s second claim of error is that the district court erred when it denied	3
his motion for summary judgment on his battery claim on the ground that he could	4
not consent to Beesley’s examination as a matter of law. 6 Plaintiff’s principal	5
contention is that, because there was no physician-patient fiduciary relationship	6
between Plaintiff and Beesley, the law governing consent to battery that applies in	7
the medical context should not have been applied. In particular, Plaintiff asserts that	8
implied consent applies only in the context of fiduciary relationships, like the	9
physician-patient relationship, and, in the absence of such a relationship here,	10
Beesley could not, as a matter of law, rely on an implied consent defense. Citing	11
Fourth Amendment search and seizure law, Plaintiff additionally argues in brief that	12
his “acquiescence to a search under the representation of authorization from a	13
warrant cannot legally provide consent to a search.” Beesley asserts that there was	14
sufficient evidence of a physician-patient relationship between the parties and, even	15
if there was not, a defense of consent is available to Beesley because Plaintiff “is	16
6 It is unclear which district court ruling Plaintiff is challenging, as he moved
twice for judgment as a matter of law on his battery claim in the court below, and he
has failed to specify which ruling he is challenging on appeal. Because the motions
rely upon the same theory and authorities and are nearly identical in form and
substance to each other and to Plaintiff’s argument on appeal, our disposition of this
issue applies equally to the district court’s denial of both motions.

24
wrong in assuming that a consent defense to battery only exists in the context of a	1
physician-patient relationship.” For the reasons that follow, we agree with Beesley’s	2
second contention.	3
{27} 	Our review of a district court’s decision on a motion for judgment as a matter	4
of law is de novo. See Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056,	5
¶ 56, 326 P.3d 50. “A directed verdict is appropriate only when there are no true	6
issues of fact to be presented to a jury. The sufficiency of evidence presented to	7
support a legal claim or defense is a question of law for the district court to decide.”	8
Rist v. Design Ctr. at Floor Concepts, 2013-NMCA-109, ¶ 7, 314 P.3d 681	9
(alteration, omission, internal quotation marks, and citation omitted).	10
{28} 	As noted, Plaintiff’s primary contention is that the defense of consent was	11
only available to Beesley if a physician-patient fiduciary relationship existed.	12
Plaintiff has failed to support this premise.7 For the proposition that “an implied	13
consent defense . . . exists at law only within the context of a fiduciary relationship,”	14
Plaintiff cites no supporting authority. See Curry v. Great Nw. Ins. Co., 2014-	15
NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support an	16
argument, we may assume no such authority exists.”). In contrast, as argued by	17
7 Because the premise upon which Plaintiff argues the defense of consent was
unavailable to Beesley is in incorrect, we need not and do not resolve whether a
physician-patient relationship existed between Plaintiff and Beesley.

25
Beesley and confirmed by our review of New Mexico authority, our courts have	1
imposed no such limit on the defense of consent. Our courts have long held that	2
“[c]onsent is a defense for intentional torts like assault and battery.” Yount v.	3
Johnson, 1996-NMCA-046, ¶ 17, 121 N.M. 585, 915 P.2d 341 (citing approvingly	4
to Restatement (Second) of Torts §§ 892-892D (Am. Law Inst. 1979)); see also	5
Giron v. Corr. Corp. of Am., 191 F.3d 1281, 1288 (10th Cir. 1999) (noting lack of	6
New Mexico uniform jury instruction for assault and battery, but concluding “it was	7
proper to instruct the jury on consent with regard to the intentional tort claims”). The	8
Restatement (Second) of Torts, of which this Court has embraced, see Yount, 1996-	9
NMCA-046, ¶ 17, sets out a broad definition of consent:	10
(1) 	Consent is willingness in fact for conduct to occur. It may be	11
manifested by action or inaction and need not be communicated	12
to the actor.	13
(2) 	If words or conduct are reasonably understood by another to be	14
intended as consent, they constitute apparent consent and are as	15
effective as consent in fact.	16
Restatement (Second) of Torts § 892 (Am. Law Inst. 1979). This definition of	17
consent encompasses both express and implied consent. Nothing in the Restatement	18
or in our case law suggests implied (or express) consent is limited to fiduciary	19
relationships as Plaintiff submits, nor, as already noted, has Plaintiff cited any	20
support for this proposed limitation. See Curry, 2014-NMCA-031, ¶ 28. Thus, we	21
conclude Plaintiff’s argument that Beesley should not be permitted an implied	22

26
consent defense in absence of a fiduciary relationship is not well-supported nor	1
borne out by our review.	2
{29} 	As for Plaintiff’s second argument, while we agree duress may vitiate a	3
party’s consent to battery, see Restatement (Second) of Torts § 892B(3) (Am. Law	4
Inst. 1979) (“Consent is not effective if it is given under duress.”), we conclude	5
Plaintiff’s undeveloped argument that the circumstances at issue here “show duress	6
as a matter of law” does not carry the day. In support of Plaintiff’s contention, he	7
cites Fourth Amendment cases for the exclusionary rule used to deter unreasonable	8
searches and seizures when a consent to a search is found to be involuntary. Plaintiff,	9
however, fails entirely to explain why this body of law ought to be imported into the	10
tort context, and we are under no obligation to develop such an argument on our	11
own.8 See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d 53	12
(“To rule on an inadequately briefed issue, [the appellate court] would have to	13
develop the arguments ourself, effectively performing the parties’ work for them.”);	14
8 Moreover, we note the potential difficulties and complexities of importing
principles from the Fourth Amendment consent to search context, which examines
from the perspective of the individual subject to the search (i.e., the criminal
defendant), whether the totality of the circumstances supports a finding that a
criminal defendant’s will has been overborne, see State v. Davis, 2013-NMSC-028,
¶¶ 13-14, 304 P.3d 10 (setting out standard for determining voluntariness of
consent), into the tort context, which examines from the perspective of the alleged
batterer 	(i.e., 	the 	civil 	defendant) 	whether 	the 	circumstances 	are 	reasonably
understood by the alleged batterer to be implied consent. See Restatement (Second)
of Torts § 892.

27
Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M. 339, 110 P.3d	1
1076 (“We will not review unclear arguments, or guess at what his arguments might	2
be.”). In short, Plaintiff has failed to develop why his claim of duress should	3
foreclose Beesley’s consent defense as a matter of law.	4
{30} 	What is more, whether Plaintiff agreed to the examinations at issue was a	5
question of fact vigorously contested by the parties at trial. For the reasons stated,	6
we conclude that the district court did not err in denying Plaintiff’s motion for	7
summary judgment as a matter of law on his battery claim and submitting the issue	8
to the jury. See Melnick v. State Farm Mut. Auto. Ins. Co., 1988-NMSC-012, ¶ 11,	9
106 N.M. 726, 749 P.2d 1105 (stating that a district court should not grant a motion	10
for directed verdict unless it is clear that “the facts and inferences are so strongly and	11
overwhelmingly in favor of the moving party that the judge believes that reasonable	12
people could not arrive at a contrary result”).	13
III. 	Beesley’s Motion for Summary Judgment on Punitive Damages	14
{31} 	Plaintiff’s third claim of error is that the district court erred when it granted	15
Beesley’s motion for summary judgment on his punitive damages claim. He	16
contends the district court improperly required him to prove Beesley’s culpable	17
mental state prior to trial and applied an incorrect legal standard in granting	18
Defendant’s motion. Beesley argues exclusively that we should not reach this issue	19

28
because any error complained of could only have been harmless, given the jury’s	1
verdict in Beesley’s favor on negligence and battery.	2
{32} 	We agree with Beesley that any error was harmless. 	The jury having	3
determined that Beesley was not liable for either battery or negligence, it could not	4
have awarded punitive damages to Plaintiff. See Archer v. Roadrunner Trucking,	5
Inc., 1997-NMSC-003, ¶ 13, 122 N.M. 703, 930 P.2d 1155 (stating that “before a	6
plaintiff may recover punitive damages he or she must state a cause of action under	7
which he or she is entitled to actual, compensatory, or nominal damages, depending	8
on the nature of the case”); Woody Inv., LLC v. Sovereign Eagle, LLC, 2015-NMCA-	9
111, ¶ 36, 362 P.3d 107 (citing out-of-state authority favorably for the proposition	10
“that where a plaintiff does not prevail on liability, any errors alleged as to damages	11
are harmless”). Any error in granting Beesley’s motion for summary judgment on	12
punitive damages, as it relates to the claims tried to the jury, was therefore harmless.	13
IV. 	Claims Against GRMC	14
{33} 	Plaintiff makes one claim of error against GRMC. Plaintiff contends that the	15
district court erred when it granted GRMC summary judgment for lack of subject	16
matter jurisdiction, determining Plaintiff failed to satisfy the notice requirements in	17
Section 41-4-16 of the TCA. Based on our rulings herein, as well as the number of	18
district court rulings left unchallenged by Plaintiff on appeal, we conclude no claims	19
against GRMC survive, and, as such, we need not and do not reach Plaintiff’s claim	20

29
of error as to GRMC. See Crutchfield v. N.M. Dep’t of Taxation & Revenue, 2005-	1
NMCA-022, ¶ 36, 137 N.M. 26, 106 P.3d 1273 (“A reviewing court generally does	2
not decide academic or moot questions.”).	3
{34} 	Against GRMC, Plaintiff alleged claims of negligence (medical and ordinary),	4
lack of consent, unfair practices, battery, false imprisonment, civil rights violations	5
on theories of vicarious liability and municipality liability, and due process	6
violations. As for any § 1983 claims against GRMC, Plaintiff conceded that there	7
was no official policy of GRMC that led to the deprivation of his rights and, as such,	8
the district court dismissed Plaintiff’s § 1983 municipality claims against GRMC.	9
The district court further declined to permit a theory of vicarious liability for	10
Plaintiff’s § 1983 claims against GRMC. Plaintiff has challenged neither of these	11
rulings on appeal. The district court’s dismissal of Plaintiff’s medical negligence,	12
lack of consent, and due process claims also were not appealed. Plaintiff further	13
stipulated to the dismissal of his unfair practices and false imprisonment claims.	14
Plaintiff’s ordinary negligence and battery claims against GRMC were based on an	15
agency theory, seeking to hold GRMC liable for Beesley’s actions. Plaintiff did not	16
appeal the jury’s verdict in favor of Beesley on ordinary negligence, and we have	17
upheld the jury’s verdict in favor of Beesley on battery. Because of this, there is no	18
basis for Plaintiff to proceed against GRMC on his ordinary negligence and battery	19

30
claims. There being no claims standing against GRMC, Plaintiff’s TCA argument is	1
moot.	2
CONCLUSION	3
{35} 	For the foregoing reasons, we affirm in part, reverse in part, and remand for	4
proceedings consistent with this opinion.	5
{36} 	IT IS SO ORDERED.	6
____________________________	7
BRIANA H. ZAMORA, Judge	8
WE CONCUR:	9
______________________________	10
JENNIFER L. ATTREP, Judge	11
_______________________________	12
MEGAN P. DUFFY, Judge	13