NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 23 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN GUZMAN HERNANDEZ, No. 18-16694

Plaintiff-Appellee, D.C. No. 2:16-cv-04238-GMS-

ESW

v.

T. W. McCRAKEN, El Mirage Police MEMORANDUM* 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.

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). 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

2 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.

3 18-16694

FILED

Hernandez v. McCraken, et al., No. 18-16694 JAN 23 2019

MOLLY C. DWYER, CLERK

CALLAHAN, Circuit Judge, concurring in part and dissenting in part: U.S. COURT OF APPEALS

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.

18-16694