USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit









No. 97-1958

No. 97-1959

No. 97-1960

No. 97-1961



                      NORMAN L. BERTHIAUME,



                       Plaintiff, Appellee,



                                v.



           JEAN CARON, BETTY B. CLARK, JAMES D. BIVINS

                    and WILLIAM T. O'DONOHUE,



                     Defendants, Appellants.

                       ____________________



          APPEALS FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



             [Hon. Gene Carter, U.S. District Judge]

                       ____________________



                              Before



                       Selya, Circuit Judge,



                 Campbell, Senior Circuit Judge,



                    and Boudin, Circuit Judge.



                       ____________________



     Paul R. Johnson, William R. Fisher, Edward R. Benjamin, Jr.and Joseph H. Groff, III with whom Harrison L. Richardson, Barri L.

Bloom, Richardson, Whitman, Large & Badger, Monaghan, Leahy,

Hochadel & Libby, Preti, Flaherty, Beliveau & Pachios and Jensen,

Baird, Gardner & Henry were on joint brief for appellants.

     Terry A. Fralich with whom Peter J. DeTroy and Norman, Hanson

& DeTroy were on brief for appellee.





                                

                                

                         April 21, 1998

                                

                                

                                

                                  BOUDIN, Circuit Judge.  Norman L. Berthiaume was a Maine

nurse practitioner licensed by the Maine Board of Nursing.  In July

1990, Berthiaume pleaded guilty to the violation of 18 U.S.C. 

1462, which prohibits the importation of obscene materials. 

Berthiaume had ordered and received from a United States Customs

Service undercover operation in Mexico, through the mails, a

videotape depicting children engaged in sexual activity.  He was

given two years' probation and a $2,000 fine; the sentencing judge

said that the crime was an aberration.

  While the charges were still pending, Berthiaume notified

the Board of the situation and applied for a renewal of his nursing

license.  He said that he had purchased the child pornography out

of professional interest.  In November 1990, the Board met with

Berthiaume and his attorney at an informal conference.  Afterwards,

the Board renewed his license on a probationary basis pending a

psychological evaluation by an independent psychologist.

  James Bivins, a government lawyer who was advising the

Board, contacted two psychologists in an effort to find someone who

could evaluate Berthiaume.  One of the psychologists recommended

Dr. William O'Donohue, a psychologist who was then an assistant

professor at the University of Maine specializing in the evaluation

of sex offenders.  Jean Caron, the Board's executive director (a

non-voting staff position), contacted O'Donohue, who told her and

Bivins about the tests he employed and considered appropriate in

such an evaluation.

  These tests, O'Donohue told them, included interviews,

filling out surveys, and a penile plethysmograph test.  He

explained that in the plethysmograph test, the subject places on

his penis a device that measures its circumference and thus the

level of the subject's arousal as he is shown sexually explicit

slides or listens to sexually explicit audio "scenes."  Caron and

Bivins reported their conversation to Betty Clark, the chair of the

Board, who told them to retain O'Donohue's services.

  Bivins arranged the evaluation and informed Berthiaume

that it would include a penile plethysmograph test.  Berthiaume was

told that if he refused to take the test, the Board would take

steps to revoke his nursing license.  Berthiaume expressed

reservations orally and in writing but ultimately agreed to the

test and signed the informed consent form he was given by

O'Donohue.  Berthiaume says he signed it under duress and disputes

whether he was given enough information about the test to make his

consent truly informed.  

  O'Donohue administered the battery of tests, surveys, and

interviews that he had discussed with Bivins and Caron and sent a

report to the Board.  In his report, O'Donohue stated that the

plethysmograph test was "inconclusive."  However, O'Donohue made a

diagnosis of probable pedophilia, relying primarily on Berthiaume's

specific request for pornography depicting boys of particular ages

and an admission (later retracted) by Berthiaume during an

interview with O'Donohue that he had regular sexual fantasies about

boys and girls between the ages of 12 and 15.

  In December 1990, the Board voted to renew Berthiaume's

license on a probationary basis for two years.  He was required to

tell employers and supervisors about his agreement with the Board,

limit his clientele to patients older than 18, and receive

psychological counseling.  Berthiaume entered into a consent

agreement with the Board in February 1991 agreeing to these

conditions.

  Berthiaume then brought suit in the federal district

court in Maine,  seeking damages under 42 U.S.C.  1983 and the

Maine Civil Rights Act, Me. Rev. Stat. Ann. tit. 5,  4682,

alleging violation of his rights under the United States and Maine

constitutions.   The defendants included Clark, Caron, Bivins, and

O'Donohue.  The defendants countered with a summary judgment

motion asserting defenses of absolute immunity for officials

involved in quasi-judicial proceedings and qualified immunity for

officials who do not violate clearly established rights.

     The district court rejected the absolute immunity

defense, which we need not reach.  As to qualified immunity, the

district court denied the defendants' request to dismiss, relying

on our decision in Harrington v. Almy, 977 F.2d 37 (1st Cir. 1992);

the court said that "factual issues" remained open that were

necessary to the decision whether the defendants violated a clearly

established right and thus forfeited immunity.  These open issues

included:

     (1) whether Defendants acted reasonably in

     failing to consider alternative approaches to

     meeting the Board's need for additional

     information without requiring Plaintiff to

     take the penile plethysmograph test; (2)

     whether the test was shocking, degrading, and

     humiliating and, if so, whether Defendants

     acted reasonably in failing to consider the

     impact of the procedure on Plaintiff; (3)

     whether the penile plethysmograph was

     scientifically capable of meeting the

     legitimate state interest in this case; and

     (4) whether the extent of Defendants' inquiry

     into the scientific validity of the penile

     plethysmograph was reasonable in light of the

     intrusiveness and invasiveness of the test.

     The defendants have now appealed.  At the threshold,

Berthiaume argues that we do not have jurisdiction to consider

these appeals.  Ordinarily, the  district court's rejection of a

qualified immunity defense is immediately reviewable under the

collateral order doctrine, for reasons explained by the Supreme

Court in Mitchell v. Forsyth, 472 U.S. 511, 524-30 (1985). 

However, the rule is subject to a recent exception established in

Johnson v. Jones, 515 U.S. 304 (1995), which Berthiaume invokes

here.  

     In Johnson, the Supreme Court held that interlocutory

appeals would not be permitted to challenge one type of ruling

denying qualified immunity.  Where qualified immunity turns on a

question of fact and the district court declines to grant summary

judgment because it says that the fact is genuinely disputed, there

is no interlocutory review.  515 U.S. at 313.  The Court's reason

for the exception was prudential; it wanted to foreclose a narrow,

time-consuming inquiry whose resolution by interlocutory appeal was

a game not worth the candle.  See id. at 316-17.

     Conversely, a defendant who concedes arguendo the facts

found to be disputed is not barred by Johnson from taking an

interlocutory appeal on a legal claim that the defendant is

nevertheless entitled to qualified immunity on facts not

controverted.  This view of Johnson, set forth in Stella v. Kelley,

63 F.3d 71, 74 (1st Cir. 1995), has been confirmed by Behrens v.

Pelletier, 516 U.S. 299, 313 (1996).  The Court in Behrensrecognized that determining which facts are uncontroverted may

require a certain amount of appellate effort including review of

the record.  Id. at 313.

     One other point needs to be borne in mind.  The genuine

disputes insulated from immediate review under Johnson are those

involving facts, such as what happened.  Questions of law

application--for example, whether a set of assumed facts add up to

a constitutional violation--are not so insulated and are ordinarily

subject to de novo review.  Behrens, 516 U.S. at 312-13.  This is

equally true in deciding whether the assumed facts show a violation

of "clearly established" law.  

     We turn now to the "merits" of the immunity dispute: 

whether, assuming that facts found controverted were resolved in

favor of Berthiaume, the defendants were nevertheless entitled to

qualified immunity as a matter of law based upon facts not

controverted.  In section 1983 cases, the classical formulation is

that an official is immune if his or her actions did not violate

the plaintiff's "clearly established" constitutional rights. 

Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).  Subsequent case

law has elaborated upon this concept in two significant ways:

     First, the case law makes clear that the question is not

whether some right has been established clearly at a highly

abstract level, for example, the right to be free from unreasonable

searches and seizures.  Rather, the question is whether, under the

circumstances that confronted the official, "a reasonable official

would understand that what he is doing violate[d] that right." 

Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Hunter v.

Bryant, 502 U.S. 224, 228-29 (1991) (per curiam); Brown v. Ives,

129 F.3d 209, 211-12 (1st Cir. 1997), cert. denied, __ U.S. __, 66

U.S.L.W. 3531 (Mar. 23, 1998).

     Second, qualified immunity may exist even though in

hindsight a court might determine that the action of the official

violated the Constitution.  The doctrine of qualified immunity

leaves "ample room for mistaken judgments" and protects "all but

the plainly incompetent or those who knowingly violate the law." 

Malley v. Briggs, 475 U.S. 335, 341 (1986).  This is consistent

with the purpose of qualified immunity to avoid unduly chilling

official action by exposing officials to personal damage liability

for good faith judgments.  Harlow, 457 U.S. at 814-15.

     Berthiaume describes the defendants' actions as ones that

"shock the conscience" and thereby violate his right to substantive

due process.  Rochin v. California, 342 U.S. 165, 172 (1952). 

Alternatively, he claims that the plethysmograph test violated his

right to be free of unwanted bodily searches under the Fourth and

Fourteenth Amendments.  Depending on circumstances, these might be

two quite different claims; but in this case we think the

considerations are similar, although the two constitutional

standards are different.

     The "shock the conscience" test is, here as in the

ordinary case, largely directed to the substance of what the

defendants did, including the nature of the conduct and the reasons

for it.  The same issues of intrusiveness and justification are

pertinent in examining the matter through a Fourth Amendment lens,

where the touchstone is reasonableness.  In some cases procedural

issues dominate the Fourth Amendment inquiry--the securing of a

warrant from a neutral magistrate, for example--but Berthiaume

makes no procedural claim in this instance.

     Starting with the conduct itself, Berthiaume's main

objection is to the plethysmograph test.  Of course, the procedure

was being carried out in the course of a psychological examination,

and there are plenty of ordinary medical procedures that are

disagreeable or upsetting to the patient.  Competency examinations

in criminal cases are similarly intrusive.  But we think that the

nature of the test in this case would strike most people as

especially unpleasant and offensive.

     The problem of justification is more complicated--indeed,

it is the heart of the case--and it needs to be considered at two

different levels.  One is the decision to insist that Berthiaume

subject himself to psychological screening, and the other is the

decision to use the plethysmograph test in the course of that

examination.  The former involves an administrative judgment, and

the latter implicates some measure of the expertise and the

practice of a profession.

     Starting with the administrative judgment, we think it

was not unreasonable, and certainly not shocking, for the Board to

require Berthiaume--as a condition of retaining his nursing

license--to submit to psychological testing by an expert. 

Berthiaume had pled guilty to the federal felony of importing

obscene materials, and the materials involved children engaged in

sexual activity.  There was no reason why the Board had to accept

Berthiaume's unvarnished assertion that he had acquired the child

pornography out of professional interest.

     The Board is charged under Maine law with responsibility

for the fitness of persons who hold themselves out as nurses.  SeeMe. Rev. Stat. Ann. tit. 32,  2101.  Like doctors, nurses are a

part of the medical profession and are entrusted with patient care,

where reliance is normally placed on the competence of the nurse or

doctor.  Given that children were the subject of Berthiaume's

pornography, many people would have regarded the Board as downright

remiss if it had not insisted on further review.

     It is no answer to assert, as Berthiaume does, that

government employment or other benefits cannot be conditioned on a

surrender of constitutional rights.  In some contexts this is true,

see Blackburn v. Snow, 771 F.2d 556, 568 (1st Cir. 1985); but in

others, government employment or other benefits may be conditioned

on steps that could not be demanded as of right.  E.g., Rankin v.

McPherson, 483 U.S. 378, 388-89 (1987); Wiley v. Mayor and City

Council of Baltimore, 48 F.3d 773, 777-78 (4th Cir.), cert. denied,

516 U.S. 824 (1995).  See J. Nowak & R. Rotunda, Constitutional Law 14.46, at 958 (5th ed. 1995).

     The more troublesome decision is the use of the penile

plethysmograph, but here the main focus must be upon O'Donohue

rather than the other defendants.  There may be procedures so

bizarre that lay persons and lawyers could not conceivably stand

behind a doctor or psychologist who proposed their use.  But  this

hardly appears to be such a case.  Indeed, we conclude that

O'Donohue himself has not engaged in a violation of clearly

established law.  It follows that the other defendants did not do

so either.

     Whatever its scientific origins, pedophilia does not have

revealing physical features like the measles, and the condition is

one that the patient himself would be likely to deny.  Given the

need for inquiry, O'Donohue thus had good reason to consider the

use of any legitimate tool of investigation.  The critical question

is whether the test was so far outside the range of legitimate

professional judgment that its use in the present case was shocking

to the conscience, or constitutionally unreasonable, and also

violated clearly established law.

     O'Donohue said in his deposition that he regarded the

test as a legitimate one.  But O'Donohue's version of the

scientific scene was in some degree controverted by Berthiaume's

expert; just how far is a different question.  Given the usual

standard on summary judgment, St. Hilaire v. City of Laconia, 71

F.3d 20, 24 (1st Cir. 1995), cert. denied, __ U.S. __, 116 S. Ct.

2548 (1996), which is doubly appropriate in light of Johnson, we

will assume that Berthiaume's expert is to be believed as to facts,

although not necessarily as to legal labels.

     The difficulty is that Berthiaume's own expert does not 

even begin to assert that the penile plethysmograph is quack

science and that its use would be considered outlandish in the

medical community.  Rather, he admitted that the device is an

accepted tool in the assessment and treatment of, for example,

known child molesters.  He called it "pretty much a standard

practice in treatment programs for sex offenders," and said that by

the late 1980s, the test "had gone from a procedure that was

experimental . . . [to one] being used all over North America by

large numbers of professionals."

     This expert's testimony shows a dispute in the scientific

community as to how far the device is useful in assessing people

not previously shown to have deviant sexual interests.  The expert

said that the plethysmograph is not useful to identify pedophilia

because the test has a high rate of false negatives, that is to

say, it will pass as normal on persons who are actually pedophiles. 

The expert said that this lack of "sensitivity," combined with its

intrusiveness, made it inappropriate for use in cases (like this

one) where it is used for screening rather than treatment.

     But Berthiaume's expert admitted that, while he had

criticized the use of the device for screening purposes in a

monograph, the issue had not been definitively resolved in the

scientific community.  Further, he conceded that the device was the

most sensitive of all tools that are employed to screen for

pedophilia--the least worse of a bad lot, in his opinion.  Finally,

he agreed with O'Donohue's lawyer that the decision whether to

administer the plethysmograph test was a question of "professional

judgment."  

     In short, the situation amounts to this:  there was good

reason for the Board to determine whether Berthiaume was afflicted

with pedophilia and only limited means available for that task; the

plethysmograph is widely used in the scientific community for the

treatment of pedophilia; its use for screening is debatable and the

scientific community is not of one mind;  and whether to administer

the test was a question of professional judgment.  It is doubtful

that this testimony would show negligence in a simple case of

medical malpractice.

     Be that as it may, this testimony would not permit the

conclusion that O'Donohue's conduct was so outrageous or

unreasonable as to establish a violation of "clearly established"

law.  We need not suppose that a court would necessarily have

upheld a denial of Berthiaume's license if he had refused to take

the test.  It is enough that there is no prior case law condemning

the conduct as unconstitutional, nor is it so plainly beyond the

bounds of civilized or rational behavior as to make it an obvious

constitutional violation even without direct precedent.

     This brings us to Harrington v. Almy, 977 F.2d 37 (1st

Cir. 1992), relied on by the district court in denying summary

judgment.  There, on the basis of doubtful testimony by a child, a

town police officer became one of 170 individuals accused of child

abuse.  The police officer was neither formally charged nor

convicted of a crime, but the town's city manager insisted on a

psychological examination, which included the penile

plethysmograph, as a condition of continued police duties.  When

the police officer sued under section 1983, this court held that

the claim of qualified immunity by the same manager could not be

resolved on summary judgment.

     The court's original opinion asserted that Harrington was

"the unusual case in which the question whether a constitutional

right has been violated and the question whether that right was

clearly established are essentially coincident."  Id. at 45.  This

proposition is in some tension with the Supreme Court's view that

qualified immunity leaves "ample room for mistaken judgments,"

Malley, 475 U.S. at 341, and with later cases in this circuit. 

Veilleux v. Perschau, 101 F.3d 1, 3 (1st Cir. 1996) (en banc) (per

curiam); Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691,

695 (1st Cir. 1994).

     Indeed, in Harrington itself, the court's treatment of

qualified immunity and the merits as coextensive was attacked by a

petition for rehearing urging that the court had not faced up to

the question whether the right was "clearly established."  The

court then wrote a memorandum denying rehearing, asserting that the

record on summary judgment was insufficient to decide whether the

device was an impermissible intrusion and whether the city manager

could reasonably have believed it was permissible. See Harrington,

977 F.2d at 46.

     Whatever the state of the record in Harrington--and the

opinion reveals nothing about what evidence had been offered by

either side--we think the plaintiffs' own expert in this case

virtually conceded that the use of the test, even for screening, is

a matter of debate and professional judgment.  Further, Harrington

itself did not condemn the procedure outright, so it is doubly

difficult to describe its use by O'Donohue as shocking the

conscience or unreasonable under clearly established law.  This is

especially so since the basis for any required testing in

Harrington was far slimmer than Berthiaume's guilty plea and

confessed conduct.

     One final point remains.  We have thus far appeared to

ignore Berthiaume's purported consent to O'Donohue's examination,

including the plethysmograph test.  Berthiaume, despite his

objections, gave a written consent and had the advantage of a

lawyer's advice.  While the Board was threatening Berthiaume's

license, it would have been easy enough to refuse the test and seek

an immediate injunction against the Board's attempt to revoke the

license or compel the test.  Ordinarily, consent would end the

matter.

     Nevertheless, Berthiaume has made allegations of duress

and said he had inadequate information about the nature of the

test, and it might be difficult to resolve these issues on the

existing record.  Thus, we have assumed arguendo that Berthiaume's

claim is not barred by his consent.  Still, the appearance of

consent is highly pertinent.  Forcible administration of a test of

this kind would be an entirely different case.

     We conclude that the defendants are entitled to qualified

immunity on the claims under the federal Constitution.  As the

federal claims must be dismissed prior to trial, and there is no

independent basis for jurisdiction over the state claims, the state

claims should be dismissed without prejudice.  See, e.g., Martinezv. Colon, 54 F.3d 980 (1st Cir. 1995); Brennan v. Hendrigan, 888

F.2d 189 (1st Cir. 1989). 

     Reversed.