Victoria W. v. Larpenter

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