United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 30, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-30598
VICTORIA W,
Plaintiff - Appellant
versus
JERRY J LARPENTER, Etc; ET AL,
Defendants
TERREBONNE PARISH CONSOLIDATED GOVERNMENT; DAVE NORMAN, Attorney
for Terrebonne Parish Consolidated Government, in his official and
individual capacities; ED BYERLY, Medical Administrator of
Terrebonne Parish Criminal Justice Complex, in his official and
individual capacities; CHARLES SPENCE, DR, Medical Director of
Terrebonne Parish Criminal Justice Complex, in his official and
individual capacities; UNIDENTIFIED PARTIES
Defendants - Appellees
Appeal from the United States District Court
For the Eastern District of Louisiana
Before HIGGINBOTHAM, STEWART, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
This suit has its genesis in the tension inherent in an
inmate’s right to an abortion and her prison’s need to regulate
elective medical procedures. Here there is a challenge to the
prison’s policy of requiring an inmate to obtain a court order to
receive an elective medical procedure. It is urged that insisting
1
upon judicial authorization is not reasonably related to a
legitimate penological interest. The requirement is further
challenged as a product of deliberate indifference to an inmate’s
right to terminate a pregnancy. Finally, it is urged that there is
evidence, at least enough to present a genuine issue of material
fact, that the policy was the direct cause of the Plaintiff’s
injury.
Plaintiff-Appellant Victoria W. asserts that the court order
policy frustrated her decision to abort her pregnancy, her
constitutional right, and constitutes cruel and unusual punishment
through deliberate indifference to a serious medical need. She
contends that the policy is not reasonably related to a legitimate
penological interest because (1) inmates are often moved without a
court order for emergency medical care, so the policy cannot
further inmate security ; (2) she would have paid for the procedure
and for the costs associated with her custodial release, so no
prison resources would have been lost; and (3) there were
alternatives to the court order policy. Defendants, the prison
officials who applied the policy, reply (1) that the policy is
reasonably related to legitimate penological interests, and (2)
even assuming the policy is constitutionally impermissible,
Victoria cannot show the requisite culpability and causation.
The district court denied Victoria’s summary judgment motion
and granted summary judgment in favor of the defendants. The court
2
held, in relevant part, that the policy was reasonably related to
legitimate penological interests, and even if the policy was
impermissible, Victoria cannot prove the requisite causation. We
agree and AFFIRM the district court’s summary judgment.
I
The facts are, in large part, undisputed, but because this
case comes to us from a summary judgment order, we will view the
facts in the light most favorable to Victoria W., the non-movant,
and draw all justifiable inferences in her favor.1
Plaintiff Victoria W. entered the Terrebonne Parish Criminal
Justice Complex on July 28, 1999, after her probation for simple
battery was revoked. A physical examination given that day
revealed that she was pregnant. Upon informing the medical
personnel that she wanted an abortion, she was told that she should
meet with the head nurse. Victoria requested the meeting.
Prison officials transported Victoria on various occasions to
Chabert Medical Center, a local medical facility, for prenatal
care. On July 31, 1999, Victoria complained of back pain, and
prison officials transported her to Chabert, where a blood test
confirmed her pregnancy. She again informed prison personnel that
she wanted to terminate the pregnancy, and she was again informed
that she must speak with the head nurse. On August 3, 1999,
1
United States Steel Corp. v. Darby, 516 F.2d 961, 962-63
(5th Cir. 1975); United States v. Diebold, Inc., 369 U.S. 654, 655
(1962).
3
Victoria received a gynecological examination and was estimated to
be around fourteen weeks pregnant. On August 6, 1999, Victoria
returned to Chabert for an ultrasound, which showed Victoria’s
pregnancy to be fifteen weeks and two days along. None of this
prenatal care at the local hospital required a court order.
Three days later, on August 9, 1999, the prison’s medical
administrator, Ed Byerly, was told of Victoria’s request for an
abortion. He immediately informed the warden of the prison, Joe
Null, of the request, who sought the legal advice of William Dodd,
the Sheriff’s attorney. After speaking with Mr. Dodd, Warden Null
informed Byerly that Victoria would need to contact an attorney who
could obtain a court order for her release to obtain the abortion.
Byerly and the prison’s head nurse met privately with Victoria
on August 12, 1999, in Byerly’s office. They informed Victoria
that she needed to obtain a court order allowing her release and
transport to obtain the abortion. The closest facility that could
perform an abortion was in New Orleans, about an hour away from the
Parish. Byerly allowed Victoria to call her attorney, Howard
Marcello, during the meeting.2 Victoria instructed her attorney to
obtain a court order authorizing the abortion. Victoria does not
dispute that Byerly explained the court order procedure to Mr.
Marcello. Byerly also allowed Victoria to contact various abortion
2
Victoria testified that she had previously retained Mr.
Marcello to represent her daughter in a tort case, but Victoria
terminated the representation.
4
clinics for scheduling and pricing purposes.
Byerly’s insistence that Victoria receive a court order to
obtain temporary release for the abortion stemmed from the prison’s
general policy governing elective medical procedures. Although
unwritten, it is the policy of the prison that an inmate who wishes
to obtain an elective medical procedure must obtain a court order
allowing transport or temporary release. By contrast, emergency
medical situations that cannot be managed in the prison are
transported to a hospital without a court order. The policy
governing emergency medical situations enumerates examples,
including severe internal/external hemorrhage, loss of
consciousness, difficult or labored breathing, heat stroke, chest
pains, labor pains less than seven minutes apart, and excessive
vaginal bleeding. Inmates seeking an elective medical procedure
were always required to get a court order, but Victoria was the
first inmate who sought an abortion.
It is undisputed that the abortion was not medically
necessary. Victoria sought the abortion for emotional and
financial reasons. It is also undisputed that Victoria could not
obtain an abortion locally; she would need to be transported to New
Orleans. Finally, there is no dispute that because Victoria’s
pregnancy was so far along, her abortion would require a three-day
stay in the New Orleans’ abortion clinic.
Over the next week, the prison officials heard nothing from
5
Victoria’s attorney. On August 19, 1999, Sheriff’s attorney Dodd
reiterated the court order policy to Victoria by letter. The
letter stated that because the pregnancy did not threaten injury or
death,
it will be necessary for you to contact an
attorney so that arrangements can be made with
the Correctional Department to have you
transferred to a hospital where such a
procedure can be performed if legally
permissible. Additionally, you should be
advised that unless a judge releases you on
your own recognizance for such a procedure,
you will be responsible for the costs of a
guard who has to go and stay with you while
the procedure is being performed and during
any hospital stay you may incur as a result of
this procedure.
Victoria was informed that financial assistance might be available
from women’s rights groups. Finally, Dodd shared with Victoria his
suspicion that her attorney may decline the representation for
moral reasons. Dodd cautioned that any problem she had with her
attorney “was not the problem of” the prison, the medical staff, or
the Sheriff’s Office. The letter concludes by again stating the
court order policy.
Victoria disregarded the concerns about her attorney,
believing that he was working toward obtaining a court order for
the abortion. She never informed anyone at the prison that her
attorney was balking at the representation.
On the same day, Byerly wrote Warden Null, the Parish
President, the Parish attorney and the risk management department
6
to inform them of the ongoing situation. He explained that
Victoria had been informed of the court order policy and had
contacted her attorney. Byerly noted that the prison had not heard
from her attorney and that Victoria would soon be past the time
limit for a legal abortion. He explained that Victoria was
displeased with the delays. Byerly made clear that the situation
was not a moral issue for his department; he was seeking advice on
how to proceed considering that the abortion was not a medical
emergency.
On August 24, 1999, Byerly responded to one of Victoria’s
requests for assistance by reiterating the court order policy.
Byerly referred her to Dodd’s letter of August 19, 1999.
Marcello apparently overcame any reluctance he may have had to
the representation. He filed a motion on her behalf, which the
judge reviewed and set for hearing on the following day, September
9, 2003. At the time of the hearing, Victoria remained in the
allowable time period to receive an abortion. Marcello’s motion,
however, did not request release or transport in order to obtain an
abortion. Rather, it sought Victoria’s release from the remainder
of her sentence based on an assertion of the prison’s inadequate
prenatal care.3 The judge asked if Victoria sought release for
3
During his deposition, Mr. Marcello testified that Victoria
asked him for an early release because of the prison’s inadequate
prenatal care. Victoria disputes this assertion, and we assume the
truth of Victoria’s assertion for the purpose of our summary
judgment review.
7
medical care and then readmission or if she sought an early
release. Marcello told the judge that his client sought an early
release. The judge then held the motion in abeyance, pending a
medical evaluation.
Victoria was transported to the courthouse for the hearing,
but neither her attorney nor the judge asked for her to be brought
to the courtroom from the holding cell. It was not until she
returned to the prison that she learned that her attorney did not
ask for a court order for release to obtain an abortion. She spoke
with her attorney afterwards and he told her that he did the best
he could. He told Victoria that an early release required a doctor
to evaluate and inform the court on the prenatal care provided by
the prison, and that she would have to pay $1500 for the doctor’s
services. She told Mr. Marcello that she could not pay for these
services.
Although Victoria complains that she was denied access to the
telephone when she needed to place calls, she was allowed on
various occasions to call her attorney and relatives. Following
the court hearing, Victoria submitted requests to prison officials
for an early release because of problems with her other children.
The requests do not mention her desire for an abortion. The prison
responded by simply stating that the prison officials could not
change the judge’s sentence.
Victoria asserts that the prison officials knew of her desire
for an abortion at all times during her incarceration and that her
8
attorney did not contact her or the officials before the hearing.
Victoria was released on October 13, 1999, too late to obtain a
legal abortion in Louisiana. She carried the child to term and
placed it with adoptive parents.
II
Victoria filed this suit for damages in the Eastern District
of Louisiana pursuant to 42 U.S.C. § 1983, alleging violations of
her federal and state law rights. She sued Jerry Larpenter,
Sheriff of Terrebonne Parish; William Dodd, attorney for the
Sheriff; the Terrebonne Parish Sheriff’s Office; Joe Null, Warden
of the prison; Terrebonne Parish Consolidated Government (“the
Parish”); Dave Norman, attorney for the Parish; Ed Byerly, Medical
Administrator of the prison; Charles Spence, Medical Director of
the prison; and their respective insurers. Victoria sued these
defendants in both their individual and official capacities, but
the district court granted summary judgment to defendants on all
the individual capacity claims. Victoria voluntarily dismissed all
claims against the Sheriff’s Office, Sheriff Larpenter, Warden
Null, and the Sheriff’s attorney William Dodd.
Only Byerly, Spence, and Norman in their official capacities,
and the Parish remained as defendants. The Parish is thus the only
true defendant remaining in the suit.4
4
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 70-71
(1989) (explaining that an action against a government official is
tantamount to a suit against the government itself); Brandon v.
Holt, 469 U.S. 464, 471-72 (1985) (same); Ashe v. Corley, 992 F.2d
9
In supporting her summary judgment motion, Victoria alleged
that (1) Defendants promulgated and applied an official policy
requiring her to hire an attorney and obtain a court order to
obtain an abortion, (2) the official policy violated her Fourteenth
Amendment right to an abortion and her Eighth Amendment right to be
free of cruel and unusual punishment, and (3) the policy was the
moving force of her injury. She asserted that the policy was an
undue restraint on her right to an abortion and served no
legitimate penological interest in violation of the Fourteenth
Amendment. She alleged that the policy was deliberately
indifferent to her request for an abortion, which she categorized
as a serious medical need, resulting in substantial harm and a
denial of her rights under the Eighth Amendment.
In response and in support of its cross-motion for summary
judgment, the Parish (1) denied that there was an official policy
because Victoria was the first prisoner to request an abortion and
such an isolated incident cannot constitute an official policy as
a matter of law; (2) denied that any named defendant was a policy
maker; (3) asserted that in any event, her attorney, not the
policy, frustrated her effort to obtain an abortion; (4) urged that
an abortion is not a serious medical need under the Eighth
Amendment; and (5) maintained that such a policy was constitutional
under the Fourteenth Amendment because it was reasonably related to
540, 541 n.1 (5th Cir. 1993) (same).
10
legitimate penological objectives, namely inmate security and
avoidance of liability.
The district court granted summary judgment for the Parish,
concluding that Victoria was not deprived of a federal
constitutional right. The court found that there was an official
policy that was reasonably related to legitimate penological
interests. The court also held that Plaintiff failed to present a
fact issue on the question of causation, concluding that it was her
attorney’s actions, not the policy, that deprived Victoria of her
opportunity to have an abortion. Finally, the court held that a
non-therapeutic abortion did not qualify as a “serious medical
need” for purposes of the Eighth Amendment. The court dismissed
Victoria’s federal claims with prejudice and dismissed her state
law claims without prejudice, choosing not to retain jurisdiction
over the state claims.
Victoria appeals the adverse judgment. She presents the same
arguments she made below, adding that the district court erred in
granting summary judgment to Byerly, Spence, and Norman in their
individual capacities because the law was clearly established and
Defendant’s actions were objectively unreasonable. We review the
summary judgment order de novo.5
III
Section 1983 provides that “[e]very person who, under color of
5
Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003).
11
any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any . . . person
within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured.”6 There are three elements
to establish liability through a Section 1983 action.7 There must
be (1) a deprivation of a right secured by federal law (2) that
occurred under color of state law, and (3) was caused by a state
actor.8 “Section 1983 imposes liability for violations of rights
protected by the Constitution, not for violations of duties of care
arising out of tort law.”9
The relevant rules are well established. Municipalities are
“persons” within the meaning of § 1983.10 They are liable only for
their own acts and not those attributed to them by principles of
respondeat superior.11 The language and legislative history of §
1983 “compels the conclusion that Congress did not intend
municipalities to be held liable unless action pursuant to official
6
42 U.S.C. § 1983.
7
Bush v. Viterna, 795 F.2d 1203, 1209 (5th Cir. 1986).
8
Id.
9
Baker v. McCollan, 443 U.S. 137, 146 (1979); see also Doe v.
Taylor Indep. Sch. Dist., 15 F.3d 443, 450 (5th Cir. 1994) (en
banc).
10
Monell v. Dep’t of Social Servs. of New York, 436 U.S. 658,
690 (1978).
11
Id. at 691-92.
12
municipal policy of some nature caused a constitutional tort.”12
Additionally, a § 1983 plaintiff must demonstrate that–
the municipal action was taken with the
requisite degree of culpability and must
demonstrate a direct causal link between the
municipal action and the deprivation of
federal rights.13
Causation bears on implementing the rule against attributed
liability under § 1983, insisting as it does that the local
government unit itself be the actor. Indeed, the first inquiry in
a municipal liability case is “whether there is a direct causal
link between a municipal policy or custom and the alleged
constitutional deprivation.”14 It follows that when the claim is
that while a municipal policy itself did not violate federal law,
it caused another actor to inflict the injury, “rigorous standards
of culpability and causation must be applied to ensure that the
municipality is not held liable solely for the actions of its
employee.”15
At issue here are the rights to an abortion and to be free of
cruel and unusual punishment. The Fourteenth Amendment protects a
woman’s right to choose to terminate her pregnancy prior to
12
Id. at 691.
13
Bd. of the County Comm’rs of Bryan County, Oklahoma v.
Brown, 520 U.S. 397, 404 (1997); see also Piotrowski, 237 F.3d at
578 & n.17.
14
Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989).
15
Bryan County, 520 U.S. at 405.
13
viability.16 Government regulation of abortions is allowed so long
as it does not impose an undue burden on a woman’s ability to
choose.17 A state regulation constitutes an undue burden if it “has
the purpose or effect of placing a substantial obstacle in the path
of a woman seeking an abortion of a nonviable fetus.”18
The Eighth Amendment, made applicable to the states by the Due
Process Clause of the Fourteenth Amendment, proscribes cruel and
unusual punishment.19 The original aim of the Eighth Amendment was
to proscribe inhuman techniques of punishment.20 The Court has
extended it to encompass “broad and idealistic concepts of dignity,
civilized standards, humanity, and decency.”21 In Estelle v.
Gamble, the Court held that prison officials inflict cruel and
unusual punishment if they are deliberately indifferent to an
16
Roe v. Wade, 410 U.S. 113, 153 (1973); Planned Parenthood
of Southeastern Pa. v. Casey, 505 U.S. 833, 846 (1992).
17
Casey, 505 U.S. at 874 (“The fact that a law which serves
a valid purpose, one not designed to strike at the right itself,
has the incidental effect of making it more difficult or more
expensive to procure an abortion cannot be enough to invalidate it.
Only where state regulation imposes an undue burden on a woman’s
ability to make this decision does the power of the State reach
into the heart of the liberty protected by the Due Process
Clause.”).
18
Id. at 877.
19
U.S. CONST. amend. VIII.
20
Estelle v. Gamble, 429 U.S. 97, 102 (1976); Wilkerson v.
Utah, 99 U.S. 130, 136 (1878).
21
Estelle, 429 U.S. at 102 (quoting Jackson v. Bishop, 404
F.2d 571, 579 (8th Cir. 1968)).
14
inmate’s serious medical needs.22 “Regardless of how evidenced,
deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983.”23 Not all inadequate
medical treatment rises to the level of an Eighth Amendment
violation; “[i]t is only such indifference that can offend
‘evolving standards of decency’ in violation of the Eighth
Amendment.”24 A plaintiff must prove “objectively that he was
exposed to a substantial risk of serious harm,” and that “jail
officials acted or failed to act with deliberate indifference to
that risk,” which requires actual knowledge and deliberate
disregard.25
These constitutional rights are clear. It is equally clear
that when asserted by a prisoner, their scope necessarily reflects
the prison context. “Many of the liberties and privileges enjoyed
by other citizens must be surrendered by the prisoner. An inmate
does not retain rights inconsistent with proper incarceration.”26
The Court has established an analysis appropriate to the unique
circumstances and difficulties of imprisonment in deciding whether
a prison regulation impermissibly limits a prisoner’s
22
Id. at 103-04.
23
Id. at 104.
24
Id. at 106.
25
See Lawson v. Dallas County, 286 F.3d 257, 262 (5th Cir.
2002).
26
Overton v. Bazzetta, 123 S. Ct. 2162, 2167 (2003).
15
constitutional rights.27 In Turner v. Safley, the Court balanced
two principles in determining the proper standard of review.28 On
the one hand, the Court recognized that certain constitutional
rights survive incarceration.29 On the other hand, the Court
recognized that federal courts are ill-equipped at prison
administration and reform and that these tasks are generally left
to the legislative and executive branches.30 In balancing these two
considerations, the Court created a standard for evaluating
“prisoner rights” cases: “when a prison regulation impinges on
inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”31
We are to consider four factors in determining whether a
regulation is reasonably related to a legitimate penological
interest:32 (1) “whether the regulation has a valid, rational
connection to a legitimate government interest;”33 (2) “whether
27
Turner v. Safley, 482 U.S. 78, 85 (1987) (“Our task . . . is
to formulate a standard of review for prisoners’ constitutional
claims that is responsive both to the policy of judicial restraint
regarding prisoner complaints and [to] the need to protect
constitutional rights.”) (internal quotation marks omitted).
28
Id. at 84-85.
29
Id. at 84.
30
Id. at 84-85.
31
Id. at 89.
32
Id. at 89-91.
33
Overton, 123 S. Ct. at 2168. Turner explained that the
logical connection between the regulation and the goal must not be
16
alternative means are open to inmates to exercise the asserted
right;” (3) “what impact an accommodation of the right would have
on guards and inmates and prison resources;” and (4) “whether there
are ‘ready alternatives’ to the regulation.”34 The Court explained
that this final factor is not a “least restrictive means” test; to
prove a regulation unreasonable, an inmate must present evidence of
a ready alternative that fully accommodates a prisoner’s rights at
de minimis cost to valid penological interests.35 It is the
inmate’s burden to disprove the validity of the regulation.36
Applying these factors, the Turner Court held that a rule
barring inmate-to-inmate correspondence was reasonably related to
legitimate security interests, but restrictions on marriage were
not.37 The prison’s ban of inmate-to-inmate correspondence was
logically connected to the legitimate security concern of
curtailing escape plans, assaults, and gang activity. The Court
explained that the regulation applied only to other inmates within
Missouri prisons, that the asserted right would have a significant
effect on other inmates and prison personnel, and that there was no
so remote that the policy is arbitrary and capricious. Turner, 482
U.S. at 89-90.
34
Id.
35
Turner, 482 U.S. at 91.
36
Overton, 123 S. Ct. at 2168.
37
Turner, 482 U.S. at 91-93.
17
evidence of an obvious, easy alternative to the regulation.38
Accordingly, the Court held that because the regulation was
reasonably related to a legitimate penological interest, it did not
unconstitutionally burden the prisoners’ First Amendment rights.
In contrast, the Court held that a regulation prohibiting
inmates from marrying unless the warden found compelling reasons to
allow the marriage unconstitutionally burdened inmates’ fundamental
right to marry.39 The prison argued that the regulation was
reasonably related to legitimate penological interests, avoiding
violent love triangles and supporting the rehabilitation of female
inmates who were overly dependent on males.40 Plaintiffs presented
evidence demonstrating why the policy did not serve the alleged
penological interests. The prison officials, however, presented no
evidence that (1) alternatives to complete prohibition could not
satisfy the security concerns, (2) the regulation was logically
connected to the prevention of caustic love triangles, (3) the
asserted right would adversely affect other inmates and prison
officials, or (4) the regulation would prevent rehabilitation.41
As a result, the Court held the marriage regulation facially
38
Id.
39
Id. at 97-99.
40
Id. at 97.
41
Id. at 98-99.
18
invalid.42
The Court has found valid various prison regulations that
burdened prisoners’ rights under the First Amendment,43 Fourth
Amendment,44 Eighth Amendment,45 and Fourteenth Amendment46 because
the regulations were reasonably related to legitimate penological
interests.
IV
We are persuaded that the policy of requiring judicial
approval of elective medical procedures is here reasonably related
to legitimate penological interests. The policy was not
promulgated with deliberate indifference to its consequences and
was not the direct cause of Victoria’s injury.47
42
Id. at 99.
43
Thornburgh v. Abbott, 490 U.S. 401, 408 (1989); Jones v.
N.C. Prisoners’ Labor Union, Inc., 433 U.S. 119, 129-31 (1977);
Pell v. Procunier, 417 U.S. 817, 822 (1974) (cited with approval in
Turner).
44
Bell v. Wolfish, 441 U.S. 520, 556-62 (1979).
45
Overton, 123 S. Ct. at 2170.
46
Block v. Rutherford, 468 U.S. 576, 588 (1984) (holding
prison’s policies of denying contact visits to pretrial detainees
and random shakedown searches of cells to not violate due process
because of valid, rational connections between the regulations and
security).
47
Because Plaintiff has not shown a federal rights
deprivation, as we will explain, we need not reach Victoria’s
argument regarding the district court’s decision to grant the
individual defendants’ qualified immunity. See Wilson v. Layne,
526 U.S. 603, 609 (1999); Steadman v. Texas Rangers, 179 F.3d 360,
367 n.9, 369 (5th Cir. 1999).
19
There is no material dispute that Victoria has shown the first
two elements of municipal liability – an official policy
implemented by policy makers. The district court concluded without
difficulty that Victoria demonstrated these elements.48 Defendants
make no serious challenge to these findings on appeal, and we
assume them to be present.
A
1
There is no material challenge to the general policy requiring
inmates to obtain court orders allowing elective medical
procedures, defended here as an effort to ensure inmate security
and avoid unnecessary liability. These are legitimate government
interests.49 There is a valid, rational connection between these
48
The district court explained:
The Court has little trouble concluding that
the court order policy at issue in this case
constitutes an official policy . . . for
section 1983 purposes. . . . Sheriff Larpenter
acknowledges that “[i]t is an unwritten policy
that when an inmate requests elective surgery,
the inmate is advised to seek permission from
the District Court, either pro se or through
counsel, by filing the appropriate documents
to obtain an order setting forth the
parameters for the procedure, i.e., who will
pay the guards, if necessary, where the
procedure will be performed, etc.”
The Court also found that the medical staff, through Ed Byerly, was
complicit in executing the policy.
49
Block v. Rutherford, 468 U.S. 576, 586 & n.8 (1984) (finding
that internal security of detention facilities is a legitimate
government interest); Wilson v. State, 576 So. 2d 490, 493 (La.
1991) (holding that a custodian of a prisoner may be held liable
for injuries caused by an escaped prisoner if the escape results
20
interests and a policy requiring prisoners to obtain a court order
allowing non-emergency medical procedures performed outside of the
prison. The policy secures a focus upon each off-site transport
for elective procedures, transfers which place the prisoner in a
less-secure environment and increase the chance of escape. The
transfers also require prison officials to escort the prisoner to
the medical facility, some of which are an hour away in New
Orleans, reducing prison resources and decreasing internal
security. Finally, under Louisiana law, the Parish is exposed to
liability claims arising from the acts of escaped prisoners.50 To
minimize the risks posed by non-emergency off-site transfers, there
is nothing unreasonable in the Parish’s insistence upon judicial
approval.51 The policy places an unbiased judge between the prison
officials and inmates seeking off-site transport for purely
elective procedures.
Elective treatment is not prohibited, although not available
within the prison. Rather, an inmate can receive the treatment by
following a set procedure. Warden Null testified that scheduling
a hearing and receiving a court order are not difficult in the
from the negligent management of the prison).
50
LA. REV. STAT. § 15:811(A) (authorizing the sheriff to release
prisoners in limited circumstances); Wilson, 576 So. 2d at 493.
51
See Overton, 123 S. Ct. at 2168-69 (policy decreasing the
total number of visitors and thereby minimizing possibility of
misconduct and effect on prison resources was rationally related to
internal security).
21
Parish. That assertion is born out by the facts of this case;
Victoria’s lawyer filed a motion that was reviewed by a judge and
set for hearing on the following day - all within the time for a
legal abortion.
2
Viewing the policy as applied to Victoria, it remains
reasonably related to legitimate penological interests. Victoria
asserts various reasons why the policy serves no legitimate
penological interest, but they alone or in sum do not prove the
policy unreasonable under Turner.
First, Victoria notes that she was repeatedly released from
the prison without a court order for other medical care, and there
is no evidence that security concerns are greater for an abortion
than for regular medical care. This assertion does not account for
the distinction between required medical care, like the prenatal
care provided Victoria, and elective medical procedures.52 The
52
It is clear that Victoria believes that any desired
abortion, regardless of the reason, is an emergency medical
situation. As a result, Victoria does not believe a policy
governing elective procedures should have applied to her. However,
while an abortion is time-sensitive and unique in its
constitutional protection, a non-therapeutic abortion is not a
medical emergency. The prison reserves emergency transport for
conditions such as heart attacks, severe hemorrhaging, and labor
pains less than seven minutes apart. A woman’s desire for a non-
therapeutic abortion does not fit this category. Victoria presents
no reason why a non-therapeutic abortion must qualify as an
emergency. The constitutional right to choose to abort one’s
pregnancy does not necessarily categorize it as an emergency.
Accordingly, the Parish was reasonable in applying the court order
policy to Victoria.
22
policy aims to reduce the total number of off-site transports and
thereby reduce the effects on prison resources, inmate security,
and potential liability. Victoria’s assertion also ignores the
fact that her prenatal medical care could be handled locally, while
her abortion could only be handled over an hour away in New Orleans
during a three-day stay. Requiring a court order for an elective
procedure that requires a round trip to and three-day stay in New
Orleans is reasonable.
Second, Victoria contends that the prison would have lost no
resources by transporting her to the abortion clinic because
Victoria was willing to pay for the procedure and the cost of the
guard. This fact mitigates one concern underlying the policy - the
resources lost by the prison - but it ignores the fact that the
prison is still either short-handed or out the cost of added
personnel. It also forgets that the policy’s simple means of
reducing potential liability of the Parish is avoiding unnecessary
transports.
Third, Victoria maintains that contrary to the finding of the
district court, there were alternatives available other than the
court order policy. She claims, for example, that the Parish could
simply have modified the policy to exclude abortions. But this
fact is not dispositive; as the Court has noted, Turner does not
provide a “least restrictive means” test.53 The burden is on
53
Turner, 482 U.S. at 90-91.
23
Victoria to show “an alternative that fully accommodates the
prisoner’s rights at de minimis cost to valid penological
interests.”54 Her alternative does not account for the avoidance
of liability attained by transporting prisoners for elective
procedures only by court order. She concedes that her alternative
would not even allow the prison to require a release of liability
before transporting an inmate for an abortion. In any case, a
ready alternative is only some evidence affecting the reasonable
relationship standard; it is not dispositive.55 Here the policy is
rationally connected to the legitimate penological objectives
served - inmate security, avoidance of liability, and prison
resources. It is neither arbitrary nor irrational.
Finally, Victoria relies heavily on Monmouth County
Correctional Institutional Inmates v. Lanzaro,56 which held that a
similar court order policy was not reasonably related to a
legitimate penological interest. Monmouth, however, rested on
different facts than this case. The prison in Monmouth had a
specific policy governing abortions that were not medically
necessary.57 The policy required inmates who wanted a non-
therapeutic abortion to first acquire a court order releasing the
54
Id. at 91; Overton, 123 S. Ct. at 2167-68.
55
Turner, 482 U.S. at 91.
56
834 F.2d 326 (3d Cir. 1987).
57
Id. at 328.
24
inmate on her own recognizance.58 A court order allowing supervised
release was not an option.59 The prison did not subject any other
forms of elective medical care to the court order policy; “rather,
it appears to be an option created solely to address inmate
requests for elective, nontherapeutic abortions.”60 The plaintiffs
claimed that the court order policy impermissibly impeded their
freedom to choose an abortion and constituted cruel and unusual
punishment.61 They sought a preliminary injunction barring the
enforcement of the court order policy, which the district court
granted. The Third Circuit reviewed the facts to determine whether
the plaintiffs demonstrated a reasonable probability of eventual
success in the litigation.62
Following oral argument in Monmouth, the Supreme Court issued
Turner, which the Monmouth court applied. The sole government
interest asserted by the county was the “unspecified, yet
insurmountable, administrative and financial burdens [that] will
result if the County is required to provide access to and funding
for elective, nontherapeutic abortions.”63 The court found this
58
Id. at 334.
59
Id. at 334-35.
60
Id. at 335.
61
Id. at 329, 334.
62
Id. at 332-33.
63
Id. at 336 (internal footnotes omitted).
25
unspecified assertion was not a legitimate government interest
because “courts have been reluctant to consider costs to the
institution a major factor in determining whether a constitutional
violation [exists].”64 Because the only interest asserted was
economic, the court refused to recognize it as a legitimate
interest and found the policy unreasonable under Turner.65 The
court went on to find that even assuming a legitimate government
interest, the policy was impermissible nonetheless because it was
not reasonably related to a legitimate penological interest. The
court explained that the policy focused on the nature of the
treatment and not on the gravity of any security risk.66 As such,
the court held the policy to be an impermissible burden on a
woman’s right to choose an abortion.
The facts of this case deal with a materially different
policy, government interest, and penological concern. While the
policy in Monmouth applied only to abortions, the policy at issue
here governs all elective medical procedures. The Monmouth policy
required inmates to get a court order releasing them on their own
recognizance, making it more difficult for full-security inmates to
obtain an order of release. But the Parish’s policy leaves the
decision to the inmate and her attorney; an inmate may seek an
64
Id.
65
Id. at 337.
66
Id. at 338.
26
order granting a custodial release. Critically, the options
allowed by the Parish’s policy, unlike the policy in Monmouth,
ensure that a pregnant inmate who wants an abortion will obtain a
court order.
Furthermore, the county in Monmouth alleged only monetary and
administrative burdens as the legitimate government interests
supporting the policy; here, by contrast, the policy seeks to
ensure inmate security and avoid unnecessary liability. There is
no dispute that inmate security and avoidance of liability are
legitimate government interests; the only question is whether these
interests are reasonably related to the policy. In Monmouth the
court did not find a rational relationship because, among other
things, other prisoners were transported for elective care without
a court order. The unequal application of the policy made it
arbitrary and irrational. But the Parish’s policy does not focus
on the nature of the treatment; instead, it seeks a judicial screen
of prisoner transports for elective medical care, with its
attendant focus on a disinterested decision. The policy’s aim is
to maximize inmate security and avoid liability. Nothing suggests
that its purpose or effect was to deter abortions. We are not
persuaded that Monmouth controls this case.
To the contrary, because the policy is reasonably related to
legitimate penological interests, we find that it was
constitutionally permissible.
27
B
An otherwise innocuous municipal policy will support liability
if it is promulgated with deliberate indifference to its known or
obvious consequences.67 If deliberate indifference is shown,
Victoria must also show a direct link between the policy and her
injury. As the policy itself does not violate federal law,
“rigorous standards of culpability and causation must be applied”68
to ensure that the Parish is not held liable for the acts of
others. The facts of the case demonstrate that Victoria cannot
meet either of these burdens.
Victoria contends that because the prison officials knew she
wanted an abortion and continued to implement the policy, they were
deliberately indifferent to her constitutional rights, and that but
for the policy, she would have received an abortion.
As often noted, demonstrating deliberate indifference to prove
municipal liability is not easy.
Deliberate indifference of this sort is a
stringent test, and "a showing of simple or
even heightened negligence will not suffice"
67
Bryan County, 520 U.S. at 406-07; Piotrowski, 237 F.3d at
579-80; Bryant v. Maffucci, 923 F.2d 979, 986 (2d Cir. 1991)
(explaining that for prisoner to prevail on § 1983 claim alleging
unconstitutional policy that violated her right to an abortion,
prisoner must show that the policy was deliberately indifferent to
her rights and that city made a deliberate choice that was the
moving force behind the violation).
68
Bryan County, 520 U.S. at 405.
28
to prove municipal culpability.69
Deliberate indifference here is an objective standard.70 For
example, continued adherence to an officer training program that
has proven inadequate in preventing tortious conduct may establish
deliberate indifference.71
On these facts, there is no deliberate indifference. Far from
illustrating a continued adherence to a policy that has violated
constitutional rights in the past, the policy and the Defendants’
actions in this novel situation demonstrate effort to respond to
Victoria’s medical needs. She received prenatal care three times
during the first nine days of her imprisonment, confirming her
pregnancy and providing the details necessary to properly evaluate
the situation. Byerly wrote the Warden explaining the situation
and asking for guidance on the Monday following Victoria’s August
6 ultrasound. The Warden contacted the Sheriff’s attorney, and
then informed Byerly that Victoria needed to obtain a court order.
Once Byerly knew the protocol, he arranged a meeting in his office
with Victoria, the prison’s head nurse, and himself. He explained
the court order policy to Victoria. He allowed her to use his
telephone to call her attorney.
69
Piotrowski, 237 F.3d at 579 (citing Bryan County, 520 U.S.
at 407).
70
Canton, 489 U.S. at 390; Farmer v. Brennan, 511 U.S. 825,
835-37 (1994).
71
See Canton, 489 U.S. at 390 & n.10.
29
When her attorney appeared confused by Victoria’s request,
Byerly spoke directly to her attorney and explained the policy to
him. Because there were no abortion clinics in the Parish and
because the prison could not itself perform the abortion, Byerly
gave Victoria access to directories and a phone to enable her to
locate and call various abortion clinics in New Orleans to shop
price and service availability. When Byerly heard nothing from
Victoria’s attorney, he again notified the Warden and noted that
the situation was time-sensitive. The Sheriff’s attorney wrote a
letter to Victoria and the Warden personally delivered it to her.
The letter told Victoria that the prison had not heard from her
attorney and reminded her of the need for a court order. It went
further, alerting Victoria to the possibility that her attorney
might be having moral qualms about the representation. Victoria
was allowed to telephone her attorney and make the necessary
arrangements. Four days later, Byerly again reminded Victoria of
the policy.
Victoria’s attorney filed a motion, which the judge reviewed
and set for hearing the next day on September 9, 1999, well within
the legal time period for obtaining an abortion. Prison officials
transported Victoria to a holding cell at the courthouse, although
neither the judge nor her attorney asked for her to be brought to
the courtroom.72 Despite Victoria’s request of her lawyer, he did
72
There is no allegation of collusion between the Parish and
Victoria’s attorney.
30
not ask for a court order releasing Victoria for an abortion.
Rather, he asked for an early release due to inadequate prenatal
care. This was the attorney’s choice, not the Parish’s. The judge
testified that if the attorney had asked that Victoria be present,
he would have allowed it. The judge also testified that he asked
Mr. Marcello whether the motion was for an early release or for a
temporary release for medical care, and Mr. Marcello stated that
the motion was for an early release. There is no evidence that the
court would have denied Victoria’s motion to receive a medical
procedure to which she had a constitutional right. But the judge
did not have the chance to rule on such a motion because the
attorney chose instead to seek an early release. The Parish’s
policy, being a condition of Victoria’s incarceration, burdened her
access to an abortion, but the policy functioned properly and the
balance was reasonable.
These facts demonstrate that the Parish did not promulgate its
policy with deliberate indifference to its known or obvious
consequences. This was the first time an inmate requested an
abortion in the Parish. The prison officials and medical staff
reasonably applied the policy. The various communications and
meetings show that the prison assisted Victoria in navigating the
policy, and she did so successfully.
The facts also preclude a showing that the policy was the
direct cause of her injury. That the policy itself was reasonable,
as we have explained, in turn affects the question of causation.
31
But regardless of the policy’s requirements, it functioned properly
in this case. Her attorney’s action, not the policy, denied
Victoria an abortion.
In her summary judgment motion below and in her causation
argument here, Victoria focuses upon traditional tort law.
Although tort principles inform our causation analysis, her
reasoning ignores the uniqueness of municipal liability for claims
against instruments of local government brought under § 1983.
Causation analysis for municipal liability must accommodate the
insistent rule that the local government unit be the actor; it must
not be held liable under respondeat superior. The facts of this
case show that the policy was reasonable and the frustration of
Victoria’s choice to abort was neither predictable nor the policy’s
doing. Victoria’s appeal to Louisiana tort law misses the mark.
V
We conclude that on facts about which there is no genuine
dispute, insisting upon judicial authorization and providing prompt
access to it was reasonably related to legitimate penological
interests. The requisite culpability and causation have not been
sufficiently shown. The policy was reasonable and causation is not
present. The claims must fail and we must affirm the summary
judgment in favor of Defendants.
AFFIRMED.
32