All The Marbles (Were Surgically Removed)

The United States Court of Appeals for the Fourth Circuit affirmed and reversed in part an inmate’s claim that his rights were violated when he allegedly was forced to have marble-removing surgery on his penis.

King filed suit under 42 U.S.C. § 1983 against several correctional officers, medical personnel, and prison administrators for alleged violations of his constitutional rights after he underwent surgery to remove penile implants while incarcerated. We conclude that King’s complaint properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims. We also hold that King stated a claim against Marvin Plumley. We reverse the district court’s decision on those bases, vacate the dismissal, and remand the case for further proceedings. We affirm the dismissal as to Stacy Scott, Cliff Goodin, and Jim Rubenstein, but modify the dismissal of the latter two to be without prejudice.

The member at issue

King is an inmate at Huttonsville Correctional Center (“HCC”) and has been incarcerated since March 23, 2012. In fall 2008, prior to his incarceration, King had marbles implanted in and tattoos drawn on his penis. He and his then fiancée, who is now deceased, decided to have the implants done during the “body modification” craze, as they had heard about the “intensification of sensitivity and euphoric climaxes” resulting from the procedure.

The problem

On January 8, 2013, King was called to the control booth in his unit, where a corrections officer told him to report to “medical” to be examined. Id. at 25. King was to be examined because an inmate reported seeing King and another inmate implanting marbles into their penises. The nurse who examined King verified that the marbles were not recently implanted and that there was no sign of infection.

King was escorted to the segregation unit, where an officer told him that the implants were not noted in his file. King responded that when he was being processed at Mt. Olive, he informed the processing officer of the marbles and tattoo. The officer told him, “This isn’t a pornographic camera, put [your] clothes back on.”

The inmate was found in violation of prison regulations “which prohibit[ed] exposing body fluids, tattoos, and piercings.” 

Due to this violation, King was sentenced to sixty days of punitive segregation, sixty days loss of privileges, and ninety days of loss of good time.

After a medical exam, a deputy warden

told him, “Get comfortable you stupid Son of a Bitch, you’ll be placed in Administrative Segregation until you do as I say and have those marbles removed.” J.A. 26. King responded that Rosencrance could not punish him twice for the same violation. Rosencrance said, “I can do what the Fuck I want.” Id. King was then returned to administrative segregation. King alleges that HCC officials threatened him with segregation for the remainder of his sentence and loss of parole eligibility if he did not consent to surgery.

So consent he did

As a result of the surgery, King now experiences physical symptoms. He has tingling and numbness in his penis; pain in the area where the marbles were removed; an “uncomfortable, stretching feeling where the cut was made”; pain in his penis when it rains, snows, or gets cold; and “stabbing pain [that] shoots into [his] stomach” if he bumps into something or the scar on his penis is touched. Id. at 15, 27. King never experienced these symptoms until after his implants were removed.

He also alleges mental anguish

King also experiences mental and emotional anguish as a result of the surgery. He gets “very depressed every time [he] shower[s] or urinate[s]” because he sees the scarring and is reminded of his deceased fiancée…

He is ridiculed by the staff: they refer to him as “Marble Man” and when they search him, they ask where his marbles are.

The court

Throughout his complaint, King stated that the defendants had no penological justification in the surgery, J.A. 16, 18, and provided facts that support this contention. First, he alleged that the marbles were implanted prior to incarceration (an allegation supported by the findings of the two medical professionals who inspected the marbles). This, he argues, is inconsistent with the policy directive that he was found in violation of…

King also alleged that other prisoners “implanted foreign objects into their penises,” but unlike King, they have been permitted to keep them.

No penological justification!

Nor did the “consent” provide a defense.

While prison officials must be afforded wide deference in deterring security threats, the pleadings raise sufficient concerns about the legitimacy of the reasons for surgery. This is doubly so where defendants sought “to intrude upon an area in which our society recognizes a significantly heightened privacy interest,” requiring “a more substantial justification” to make the search “reasonable.” Lee, 470 U.S. at 767. Thus, at this early stage of the proceedings, we find that the justification for the search weighs in favor of unreasonableness…

We hold that King’s complaint plausibly satisfies both prongs of an Eighth Amendment claim and reverse the district court…

In dismissing the claim, the district court read too narrowly the extent of King’s harm…

Based on the foregoing, we conclude that King properly stated his Fourth, Eighth, and Fourteenth Amendment Equal Protection and Due Process claims.

(Mike Frisch)