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Bustillos v. El Paso County Hospital District

United States Court of Appeals, Fifth Circuit

May 23, 2018

GLORIA BUSTILLOS, Plaintiff - Appellant

          Appeal from the United States District Court for the Western District of Texas

          Before KING, ELROD, and GRAVES, Circuit Judges.

          JAMES E. GRAVES, JR., Circuit Judge

         This case stems from a series of increasingly intrusive body searches performed by state medical staff during a border stop in El Paso, Texas. The district court dismissed Appellant's claims based on qualified immunity, failure to allege a valid claim for county liability under § 1983, and failure to meet Texas state tort standards. We affirm.


         I. The Search and Seizure

         Appellant Gloria Bustillos ("Bustillos") is a U.S. citizen. On September 19, 2013, Bustillos was crossing the Paso del Norte bridge from Juarez, Mexico, to El Paso, Texas. Bustillos did not have any illegal drugs or contraband. After presenting her passport to Customs and Border Protection agents, Bustillos was immediately taken into custody despite telling agents that she was not in possession of narcotics. An increasingly intrusive series of searches followed.

         First, two female agents conducted a pat down. The agents found no drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert to the presence of drugs. Two agents then took Bustillos to a restroom, where they ordered her to pull down her pants and underwear and bend over slightly. The agents conducted a visual inspection of Bustillos' vaginal and anal area. Again, the agents found no drugs. Despite no evidence of drugs, the agents placed tape on Bustillos' legs and abdomen, handcuffed her, and transported her to the University Medical Center (the "Hospital") in El Paso.

         At the Hospital, Doctors Michael Parsa and Daniel Solomin (the "Doctors") ordered a series of x-rays to search for drugs. The x-rays revealed no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin found no evidence of drugs. As part of these searches, the Doctors, and Nurses Lynette Telles and Frank Mendez (the "Nurses"), [1] allegedly "brutally" probed Bustillos' cavities in the presence of hospital personnel. Bustillos did not consent to any of the above searches.

         At approximately 4:00 a.m. the next morning, after finding no evidence of narcotics, the Doctors released Bustillos to CBP agents, who drove Bustillos to the international bridge and released her.

         II. Procedural History

         On September 18, 2015, Bustillos filed a complaint in a Texas state court alleging Bivens and § 1983 claims against various state and federal actors. The Hospital timely removed the case to federal court.

         Pertinent to this appeal, Bustillos alleged § 1983 claims under the Fourth, Fifth, and Fourteenth Amendments against the Doctors and Nurses in their individual capacities. Bustillos further asserted a § 1983 claim against the El Paso County Hospital District/University Medical Center (the "District")[2] under a county liability theory.[3] Bustillos next asserted a claim under the Texas Tort Claims Act ("TTCA") against the District. Though not listed as a cause of action, Bustillos maintained below, and on appeal, that she asserted intentional tort claims against the Doctors and Nurses under Texas law.

         All of the relevant defendants filed motions to dismiss under 12(b)(6) and 12(b)(1), asserting various immunity theories. Solomin also filed a motion for a protective order, seeking to prevent discovery until the district court ruled on his qualified immunity defense.

         Without ruling on the protective order, the district court granted the motions to dismiss on all claims. The district court granted qualified immunity to the individual defendants against the § 1983 claims and held that the tort claims failed on immunity and Texas statutory grounds. As to the District, the court found that Bustillos had failed to sufficiently allege any of the necessary elements for county liability under § 1983 and failed to timely give notice for her state tort claims.

         This appeal timely followed.


         Bustillos' arguments on appeal can be divided into three broad categories. First, she challenges the dismissal of her constitutional claims. Second, she challenges dismissal of her state tort claims. Third, she challenges the district court's failure to allow ...

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