Roosevelt Runnels, an inmate of Folsom State Prison, brought this action under 42 U.S.C. 1983 against two prison medical officials, Dr. Rosendale and Dr. Young, alleging they conducted a hemorrhoidectomy upon his person without his consent and denied him necessary analgesics for a period of five days after the operation, causing him intense and agonizing pain.

Defendants-appellees moved to dismiss for failure to state a claim. They also sought summary judgment on the basis of affidavits tending to show that plaintiff-appellant had signed a written consent to the operation, but that it had been removed from the prison file without authority. Plaintiff-appellant relied upon the verified allegation of his complaint that he 'had vigorously and repeatedly refused to give his consent to such an operation.'

The court recognized that a substantial question of fact was presented on the issue of consent, barring summary disposition on this ground.1 Nonetheless, the court granted summary judgment for both defendants-appellees. Relying on such cases as Church v. Hegstrom, 416 F.2d 449 (2d Cir. 1969), the court concluded that 'to state a claim under the Civil Rights Act for failing to supply medical treatment or for improperly providing medical treatment, a plaintiff must allege facts which shock the conscience or constitute some barbarous act,' and held that the conduct of Dr. Young, the attending surgeon, reflected in the complaint and affidavit, did not rise to this level. Summary judgment was granted in favor of Dr. Rosendale, chief medical officer, on the ground that he was charged only with supervision of Dr. Young, and personal involvement in the facts alleged was required for liability under the Civil Rights Act, citing Runnels v. Parker, 263 F. Supp. 271 (C.D.Cal.1967).

Since the court's decision did not rest upon the affidavits, but rather upon the conclusion that the allegations of the complaint did not state a claim under 42 U.S.C. 1983, it was 'functionally the same' as an order granting a motion to dismiss for failure to state a claim, and must be reviewed as such. 6 Moore's Federal Practice 56.02(3), at 2035. Thus, the question is whether 'it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). See Wiltsie v. California Department of Corrections, 406 F.2d 515, 517 (9th Cir. 1969).

The court below analogized this case to those involving mere differences in opinion between the prisoner and prison medical officials over the proper course of treatment, or allegations of simple malpractice, neither of which is sufficient to state a cause of action under 42 U.S.C. 1983. Tolbert v. Eyman, 434 F.2d 625 (9th Cir. 1970). But the allegations of this complaint suggest conduct of a different order.

Allegations that prison medical personnel performed major surgical procedures upon the body of an inmate, without his consent and over his known objections, that were not required to preserve his life or further a compelling interest of imprisonment or prison security, may foreshadow proof of conduct violative of rights under the Fourteenth Amendment sufficient to justify judgment under the Civil Rights Act. Although we have found no case directly in point,2 this principle may emerge from at least two relevant lines of authority.

A constitutionally protected right to be secure in the privacy of one's own body against invasion by the state except where necessary to support a compelling state interest has been recognized. Roe v. Wade, 410 U.S. 113, 153-156, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). This right may be violated by prison medical personnel in the course of treatment of a prison inmate. Mackey v. Procunier, 477 F.2d 877, 878 (9th Cir. 1973). See also Winters v. Miller, 446 F.2d 65 (2d Cir. 1971).

A second line of authority has recognized a constitutional right to be free of unprovoked physical assault by agents of the state while in state custody. Brown v. Brown, 368 F.2d 992 (9th Cir. 1966); Wiltsie v. California Department of Corrections, supra, 406 F.2d 515; Allison v. California Adult Authority, 419 F.2d 822 (9th Cir. 1969). See also Johnson v. Glick, 481 F.2d 1028, 1032-1033 (2d Cir. 1973). Because of a prisoner's peculiar dependence and vulnerability in respect to medical treatment (see Fitzke v. Shappell, 468 F.2d 1072, 1076 (6th Cir. 1972), quoted infra), the right to be secure in one's person could be violated by the substantial threat to physical security necessarily involved in major surgery, when such surgery is neither consented to nor required for purposes of imprisonment or security.

Without attempting to define the limits of the constitutional right more precisely, the possibility that plaintiff-appellant may prove an intentional, unwarranted invasion of his limited rights of personal security and privacy entitling him to relief under these authorities is certainly not so clearly precluded as to justify dismissal of the complaint for failure to allege a cause of action. Retana v. Apartment, Motel, Hotel & Elevator Operators Union, Local No. 14, 453 F.2d 1018, 1025 (9th Cir. 1972); Harman v. Valley National Bank, 339 F.2d 564 (9th Cir. 1964); Corsican Productions v. Pitchess, 338 F.2d 441, 443 (9th Cir. 1964).

Similarly, the allegations that plaintiff-appellant was left in severe pain for an extended period of time without necessary and available analgesic relief were sufficient to survive a motion to dismiss for failure to state a cause of action under 42 U.S.C. 1983.

Reading the pro se complaint with the required generosity (Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)), we think that plaintiff-appellant may be alleging he was deliberately caused to suffer intense and agonizing pain through failure to provide him with necessary pain-killers for relief of foreseeable post-operative discomfort. There is no legally significant distinction between the deliberate infliction of pain through a calculated withholding of medication and an unprovoked assault. Johnson v. Glick, supra, 481 F.2d at 1031. Further, for reasons suggested in Fitzke v. Shappell, supra, 468 F.2d at 1076, failure to provide a prisoner with required medical care, even without an intent to cause pain, may violate his constitutional rights.3 In extreme circumstances, an unjustified refusal to provide required medication in the course of treatment may constitute such a violation. Tolbert v. Eyman, supra, 434 F.2d 625.

We need not decide whether liability under the Civil Rights Act may be based upon the principle of respondeat superior. The complaint contains general allegations that both Dr. Rosendale and Dr. Young participated 'in all matters leading up to and including the wanton, Willful, and malicious performing of the operations upon the body and person of the plaintiff,' and acted 'with the full knowledge on the part of the defendants that they were exceeding their authority'. These allegations may be read as charging personal participation by Dr. Rosendale. Defendants-appellees' affidavits do not attempt to establish that Dr. Rosendale's role was limited to supervision; the affidavits simply do not address this issue.

Reversed.