Nelson v. Correctional Medical Services

RILEY, Circuit Judge, with whom LOKEN, Chief Judge, and COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges, join, concurring in part and dissenting in part.

I agree with the majority’s conclusion in Part II.B that Director Norris is entitled to summary judgment based upon qualified immunity, but I respectfully dissent from Part II.A and Part III of the opinion, denying summary judgment to Officer Turensky.

The majoi'ity exposes Officer Turensky, a female prison guard, to personal tort liability under the guise of an alleged Eighth Amendment violation. Officer Tu~ rensky’s duty was to deliver Nelson safely to a hospital and into the care of trained, professional medical personnel. She did that. Officer Turensky (1) complied, at all times, with the requests of the medical personnel, including removal of the restraints; (2) used restraints on Nelson because Officer Turensky believed she was required to do so as part of her job duties; and (3) acted in accordance with all relevant ADC policies and procedures. Even if the majority were correct that Nelson’s allegations against Officer Turensky could rise to a constitutional violation, under the circumstances of this case, a reasonable officer would not have had fair notice and understood Nelson had a clearly established constitutional right to be free from restraints.

I. No Clearly Established Right to be Free From Restraints

As the majority correctly observes, in light of the Supreme Court’s decision in Pearson v. Callahan, — U.S. -, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009), courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Because I believe the “clearly established” prong of the qualified immunity analysis is patently dispositive in this case, I shall primarily address and rely upon that prong.

We review the “clearly established” prong de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). Nelson bears the burden to show a right is clearly established. See Davis v. Scherer, 468 U.S. 183, 197, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Purtell v. Mason, 527 F.3d 615, 621 (7th Cir.2008).

In order to conclude that the right which Officer Turensky allegedly violated was clearly established on September 20, 2003, “[t]he contours of the right must be suffi*537ciently clear that a reasonable official would [have understood] that what [she was] doing violate[d] that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). The majority opinion falls far short of demonstrating Nelson sufficiently bore her burden to prove a reasonable prison guard would have understood the restraint of Nelson violated a clearly established constitutional right.11

The United States Supreme Court has not addressed the constitutionality of the use of restraints on a pregnant inmate during labor, nor have any circuit courts, nor have any district courts in our circuit. Other than a single district court opinion from outside of our circuit, later vacated on various other grounds, no other court has considered the constitutionality of such a use of restraints. See Women Prisoners of D.C. Dep’t of Corr. v. Dist. of Colum., 877 F.Supp. 634 (D.D.C.1994) (Women Prisoners T), modified, in part on other grounds by 899 F.Supp. 659 (D.D.C.1995), vacated in part and remanded, 93 F.3d 910 (D.C.Cir.1996) (Women Prisoners II).

In Women Prisoners I, a class of women prisoners housed in District of Columbia (D.C.) corrections facilities challenged various practices and policies of the D.C. Department of Corrections, including the restraint policy for pregnant inmates during medical visits. The D.C. district court found that shackling a woman during labor “violate[d] contemporary standards of decency,” was “inhumane,” and violated the Eighth Amendment. Id. at 668. The D.C. district court discovered this constitutional right and its violation without citing any authority for its holding.

The defendants appealed to the D.C. Circuit, and the D.C. Circuit vacated several portions of the district court opinion. See Women Prisoners II, 93 F.3d at 913. The defendants did not appeal the portion of the district court opinion discussing the restraint of pregnant inmates, and the D.C. Circuit had no occasion to consider that issue. See id. at 918.

Based upon this single vacated district court opinion, the majority proclaims Nelson had a clearly established constitutional right to be free from restraints during labor.12 Granted our court previously held *538we may look to decisions of other federal and state courts in considering whether a constitutional right is clearly established, see Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755 (8th Cir.2002) (quoting Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir.2001)); however, one unchallenged portion of a vacated district court opinion from outside our circuit is not sufficient here to create a clearly established constitutional right. Other courts would agree. See Edens v. Kennedy, 112 Fed.Appx. 870, 876 (4th Cir. 2004) (holding one nonprecedential case in Washington state did not make “clearly established” law in West Virginia); Stump v. Gates, 986 F.2d 1429 (10th Cir.1993) (unpublished) (“This court has stated that a single case from another circuit is not sufficient to clearly establish the law in this circuit.”); Lee v. Dugger, 902 F.2d 822, 824 (11th Cir.1990) (“Here, only one case, decided by an intermediate appellate court, had construed the new statute, which falls short of the clarity of the law required to defeat a defense of qualified immunity.”); Soto v. Lord, 693 F.Supp. 8, 17 (S.D.N.Y.1988) (similar). Cf. Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) (“Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”). To hold otherwise severely undermines qualified immunity.

In an analogous case from our court, we concluded a “policy of shackling pre-trial detainees while they receive medical attention [did not] constitute[ ] ... deliberate indifference to medical needs or a punishment.” Haslar v. Megerman, 104 F.3d 178, 180 (8th Cir.1997) (internal citations omitted). In Haslar, a pretrial detainee was admitted to the hospital for renal failure. See id. at 179. Despite the fact the detainee was “virtually comatose” during the first few days of his hospital stay, officers shackled and chained his legs to the bed. Id. The detainee’s legs became severely swollen, and after the detainee regained consciousness, he and his mother repeatedly complained the shackles were too tight. Id. The officers did not check the restraints and did not request that a nurse examine the detainee’s legs. Id. The officers kept the detainee shackled during the entire hospital stay. Id. As a result, the detainee could not walk when he left the medical center and suffered permanent leg damage. Id.

Because the officers were not named defendants in Haslar, the court did not consider whether the officers’ personal conduct violated the detainee’s Eighth Amendment rights. See Haslar, 104 F.3d at 180. Nevertheless, Haslar demonstrates the “contours” of this new constitutional right discovered by the majority, the right of a female inmate to be free from restraints while in labor, was not sufficiently clear in our circuit such that a reasonable official would have had fair notice and understood restraining Nelson under the circumstances of this case rose to a constitutional violation. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034; Lindsey v. City of Orrick, Mo., 491 F.3d 892, 902 (8th Cir.2007) (quoting Anderson).

In Haslar, our court declared, “Admitting pre-trial detainees to a hospital concretely demonstrates a deliberate concern for their medical well-being, and not an *539indifference.” Haslar, 104 F.3d at 180. The court also stated the policy of shackling pretrial detainees while they receive medical attention “serves the legitimate penological goal of preventing inmates awaiting trial from escaping [the hospital’s] less secure confínes, and is not excessive given that goal.” Id. Finally, our court emphasized the fact that the restraint policy in Haslar contained safeguards in order to minimize potential harm to detainees. Id. The AJDC policies in place on September 20, 2003, which Officer Turensky followed, also contained safeguards. Our precedent in Haslar supports the position that any constitutional right Nelson may have had to be free from restraints was not clearly established, and a reasonable officer in Officer Turensky’s position would not have understood it was a constitutional violation to restrain Nelson. Officer Turensky plainly did not have fair notice her conduct could be unconstitutional.

The majority also suggests Hope v. Pelzer, 536 U.S. 730, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), demonstrate Nelson had a clearly established constitutional right to be free from restraints during labor. In Hope, the Supreme Court concluded prison guards subjected a prisoner to cruel and unusual punishment when the guards handcuffed the prisoner to a hitching post on two occasions “to sanction him for disruptive behavior.” Hope, 536 U.S. at 733, 122 S.Ct. 2508. On the first occasion, the prisoner got into an argument with another inmate while working on a chain gang, and the guards took the prisoner back to the prison and handcuffed him to a hitching post for two hours. See id. at 734, 122 S.Ct. 2508. The prisoner’s arms were handcuffed to the hitching post above shoulder level, and “the handcuffs cut into his wrists, causing pain and discomfort.” Id. On the second occasion, the prisoner got into an altercation with a guard upon arrival at a chain gang worksite, and the prisoner was transported back to the prison and handcuffed to the hitching post for seven hours. See id. at 734-35, 122 S.Ct. 2508. The guards made the prisoner take off his shirt, and his skin was sunburned. See id. The guards gave the prisoner water only once or twice over the seven-hour period, and the prisoner was not given any bathroom breaks. See id. at 735, 122 S.Ct. 2508. According to the prisoner, “[The guard] first gave water to some dogs, then brought the water cooler closer to [the prisoner], removed its lid, and kicked the cooler over, spilling the water onto the ground.” Id.

In Hope, the prisoner was handcuffed to a hitching post, taunted, made to suffer unnecessarily and wantonly, and denied the basic necessities of life purely for punishment purposes. See id. at 738, 122 S.Ct. 2508. Safety concerns had long passed. See id. Unlike Nelson’s case, Hope did not involve a balancing of security and inmate safety concerns when an inmate is taken outside the confines of the prison. See Haslar, 104 F.3d at 180 (“It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds.”). Nelson was not being punished, was not made to suffer unnecessarily and wantonly, and was not deprived of basic necessities of life. On the contrary, Nelson was in a hospital under the care of medical personnel. Hope cannot fairly be read to put a reasonable officer on notice that restraining a female inmate in a hospital bed during child labor, and removing the restraints when requested to do so by medical personnel, would be a constitutional violation.

The majority’s reliance on Estelle likewise is misplaced. Estelle does not ad*540dress the use of restraints on prison inmates. Instead, the issue in Estelle was whether an inmate received constitutionally inadequate medical care following a prison work-related injury. Estelle, 429 U.S. at 98, 97 S.Ct. 285. The Supreme Court determined,

[Djeliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.

Id. at 104-05, 97 S.Ct. 285 (internal marks and citation omitted). There is no allegation, and nothing in the record to suggest, Officer Turensky interfered with Nelson’s medical care. Nelson concedes Officer Turensky complied with all requests of the medical personnel. Estelle provides no guidance to officers on the appropriate use of restraints on an inmate when transporting the inmate to a medical facility for the purpose of receiving medical care, and, thus, would not have put a reasonable officer on notice that restraining a female inmate in a hospital bed during labor was a violation of the inmate’s constitutional rights.

In its discussion of the clearly established prong of the qualified immunity analysis, the majority states that Officer Turensky is presumed to be aware of the law and the ADC policies and regulations in place on September 20, 2003. See ante at 534. The majority discusses Regulation 403 and Administrative Directive 95:21, but the majority misinterprets the impact of the Hospital Security Officer Post Order (Post Order), which was also in effect as of August 1, 2003. Post Order III.A.3 expressly addressed the restraint of pregnant inmates and is directly on point:

Pregnant inmates in the final stages of labor will not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.

(emphasis added). The majority maintains the Post Order is inapplicable because “the focus of Nelson’s constitutional challenge is on the period before she was taken to the delivery room,” and “[the Post Order] did not govern before Nelson entered the delivery room.” Ante at 533, n. 8, 535, n. 10. I disagree with the majority’s interpretation of the Post Order. The plain language of the Post Order declares the Post Order applied not only to labor in the delivery room, but also “at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.”

Using the logic of the majority that Officer Turensky’s knowledge of the ADC regulations, directives, and orders “is presumed and they applied to [Officer Turensky’s] decisions and actions in September 2003,” ante at 534, Officer Turensky fully complied with the Post Order. Nelson conceded in her deposition testimony that when the obstetrician arrived, the obstetrician requested that Officer Turensky remove the restraints, and Officer Turensky did so. Whenever medical personnel requested removal of the restraints, Officer Turensky removed the restraints. Officer Turensky did her job according to ADC protocol. Officer Turensky acted without any notice or warning to indicate her conduct could violate Nelson’s constitutional right.

Even if Nelson’s allegations, taken in the light most favorable to Nelson, state a *541violation of Nelson’s constitutional right, that right was not clearly established such that a reasonable officer would have understood his or her actions violated the Constitution. Officer Turensky should not be made “to stand trial or face the other burdens of litigation.” See Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)), abrogated on other grounds by Pearson, — U.S. at -, 129 S.Ct. at 818.

II. Constitutional Violation?

The focus of our constitutional violation inquiry is whether Officer Turensky’s placement of Nelson’s legs in restraints attached to the handrail of the hospital bed while Nelson was in labor constitutes deliberate indifference to Nelson’s serious medical needs. Officer Turensky stated it was not her preference to use leg restraints on pregnant inmates, but she believed she was required to do so. During Officer Turensky’s deposition, Officer Turensky was asked about her decision to place Nelson in restraints while Nelson lay in the hospital bed. The following exchange occurred:

Q What made you decide at that particular time, Officer Turensky, to put the shackles on?
A Because if I don’t and the Warden shows up at the hospital — which she has done on occasion — she would write me up.

Officer Turensky also testified that while she did not feel threatened by Nelson, she had some concern regarding whether Nelson was a flight risk. Officer Turensky was asked, “At any time, did you feel that Ms. Nelson was a flight risk?” Officer Turensky responded, “I had my doubts, yes, ma'am.” Officer Turensky explained, “Because I did not know what [Nelson’s] crime was and the way she was talking about how she should not be considered an inmate because she was in the free world in a free-world hospital, that made me a tad nervous.”

In Haslar, we explained:

A single armed guard often cannot prevent a determined, unrestrained, and sometimes aggressive inmate from escaping without resorting to force. It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds.

Haslar, 104 F.3d at 180 (dealing with a “virtually comatose” pretrial detainee).

In assessing whether Officer Turensky’s conduct constituted deliberate indifference to Nelson’s serious medical needs, it is important to note Officer Turensky did not have any medical training, and specifically no training related to pregnancy and childbirth. Officer Turensky relied on the medical judgment of the medical personnel as to when it was medically necessary to remove the restraints. The record demonstrates Officer Turensky removed the restraints from Nelson every time medical personnel requested her to do so. There is no evidence and no allegation Officer Turensky refused to comply with any of the medical personnel’s requests or instructions. While Nelson claims, in the presence of Officer Turensky, one nurse commented that “[s]he wished that they wouldn’t have to put those restraints on [Nelson],” there is no evidence in the record any of the medical personnel ever told Officer Turensky the use of restraints on Nelson posed a danger to Nelson or her unborn child.

At oral argument, Nelson’s counsel conceded neither the actions nor the inactions of the medical personnel placed Nelson in any danger. The majority effectively holds Officer Turensky to a higher stan*542dard than the medical personnel to recognize a potential medical danger to Nelson or her baby.

The majority suggests Officer Turensky should have been aware of the risks involved with labor and childbirth because they are obvious, see ante at 529, n. 4,13 and states a factfinder could infer “[Officer] Turensky recognized that the shackles interfered with Nelson’s medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee,” ante at 530. Officer Turensky delivered Nelson safely to a hospital and into the care of trained, professional medical personnel. As we recognized in Haslar, admitting an inmate “to a hospital concretely demonstrates a deliberate concern for [the inmate’s] medical well-being, and not an indifference.” Haslar, 104 F.3d at 180. It was then the duty of the medical personnel to make medical decisions and to assess and recognize any medical dangers or risks to Nelson or her baby, including any obstacles to medical care and the avoidance of unnecessary suffering. The medical personnel treating Nelson certainly were aware of the inherent risks of childbirth and knew, better than Officer Turensky, how to avoid or minimize those risks, which was their professional responsibility. The medical personnel requested removal of the restraints from Nelson when removal was deemed medically necessary, and Officer Turensky always complied by removing the restraints.

Nelson does not contend, and the record does not indicate, she told Officer Turensky or the medical personnel that the shackles were causing her pain or suffering. A complaint of pain may have put Officer Turensky on notice of an unattended serious medical need or gratuitous infliction of pain. Without such a warning, Officer Turensky did not act with deliberate indifference.

III. Conclusion

Nelson did not meet her burden to allege and show Officer Turensky violated a clearly established constitutional right. Officer Turensky is entitled to qualified immunity. I would reverse the district court in all respects.

. The majority analyzes and includes portions of Officer Turensky’s deposition testimony in its discussion of the clearly established prong of the qualified immunity analysis. See ante at 533, 534. This discussion of Officer Turensky’s personal knowledge or awareness, and how Officer Turensky may balance that personal knowledge, is not helpful. With this prong of the qualified immunity analysis, we are concerned only with whether a reasonable officer would have understood his or her actions were violating a constitutional right. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. The test is an objective one, not subjective as to Officer Turensky.

. Without citation to the record or otherwise, the majority declares the D.C. district court's decision in Women Prisoners I, 877 F.Supp. 634, was “a widely reported decision.” Regardless of whether the majority is correct that the decision was widely reported, the decision certainly has not been widely accepted. I have not discovered any courts in the last fifteen years which have accepted the reasoning of the vacated Women Prisoners I decision, and as a recent news article explained, "The use of restraints on pregnant prisoners, even after they go into labor, is widely accepted throughout the United States,” and only six states now ban the practice of restraining pregnant inmates during labor. New York Law Limits Shackling of Pregnant Prisoners, Yahoo!® News, (Aug. 27, 2009) (available at http://news.yahoo.eom/s/ afp/ 20090827/ts_alt_afp/usprisonsocie-ty_20090827221449 (last accessed Sept. 18, 2009)). See also Amnesty International USA, Fact Sheet: Stop Violence Against Women, http ://www. amnestyusa. orgAiolence-againstwomen-in-custody/ fact-sheet-shackling-of-pregnant-prisoners/page.do?id= 1108308(last accessed Sept. 18, 2009) ("Shackling of all prisoners, including pregnant prisoners, is *538policy in federal prisons and the U.S. Marshall [sic] Service and exists in most state prisons.”).

. The majority references the movie Gone With The 'Wind to support its position that it should have been obvious to Officer Turensky that the use of restraints posed a risk of harm to Nelson. Medical knowledge and care of pregnant women have advanced significantly since the 1860s. Nelson's son was delivered in a medical facility at the hands of trained medical professionals. Officer Turensky escorted Nelson to the modern medical facility, and the hospital's medical experts assessed any risks of harm to Nelson and her baby, including use of the restraints. Officer Turensky completely complied with ADC policies and all of the medical experts’ directions and requests.