Nelson v. Correctional Medical Services

• Decision Date: 02 October 2009
• Docket Number: No. 07-2481.,07-2481.
• Citation: 583 F.3d 522
• Parties: Shawanna NELSON, Appellee, v. CORRECTIONAL MEDICAL SERVICES; Max Mobley, Doctor, Defendants, Larry Norris, Director of the ADC; Patricia Turensky, Officer, Appellants. American College of Nurse Midwives; American Medical Women's Association; National Perinatal Association; Rebecca Project for Human Rights; Citizens for Midwifery; BirthNet, Inc.; The Bronx Health Link, Inc.; California National Organization for Women; Center for Reproductive Rights; Chicago Legal Advocacy for Incarcerated Mothers; The D.C. Prisoners' Project of the Washington Lawyers' Committee for Civil Rights and Urban Affairs; Florida Institutional Legal Services, Inc.; Justice Now; Law Students for Reproductive Justice; Legal Momentum; Legal Services for Prisoners With Children; Lutheran Social Services of Illinois Connections Program; Maternal and Child Health Access; The Ms. Foundation for Women; National Juvenile Justice Network; National Women's Health Network; National Women's Law Center; National Women's Prison Project; The New Mexico Women's Justice Project; The Northwest Women's Law Center; The National Organization for Women Foundation; Penal Reform International; Prison Legal News; Prisoners' Legal Services of New York; SisterSong Women of Color Reproductive Health Collective; Southwest Women's Law Center; Texas Jail Project; The Uptown People's Law Center; Women on the Rise Telling Her Story, Amici on Behalf of Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

583 F.3d 522

Shawanna NELSON, Appellee, v. CORRECTIONAL MEDICAL SERVICES; Max Mobley, Doctor, Defendants Larry Norris, Director of the ADC; Patricia Turensky, Officer, Appellants American College of Nurse Midwives; American Medical Women's Association; National Perinatal Association; Rebecca Project for Human Rights; Citizens for Midwifery; BirthNet, Inc.; The Bronx Health Link, Inc.; California National Organization for Women; Center for Reproductive Rights; Chicago Legal Advocacy for Incarcerated Mothers; The D.C. Prisoners' Project of the Washington Lawyers' Committee for Civil Rights and Urban Affairs; Florida Institutional Legal Services, Inc.; Justice Now; Law Students for Reproductive Justice; Legal Momentum; Legal Services for Prisoners With Children; Lutheran Social Services of Illinois Connections Program; Maternal and Child Health Access; The Ms. Foundation for Women; National Juvenile Justice Network; National Women's Health Network; National Women's Law Center; National Women's Prison Project; The New Mexico Women's Justice Project; The Northwest Women's Law Center; The National Organization for Women Foundation; Penal Reform International; Prison Legal News; Prisoners' Legal Services of New York; SisterSong Women of Color Reproductive Health Collective; Southwest Women's Law Center; Texas Jail Project; The Uptown People's Law Center; Women on the Rise Telling Her Story, Amici on Behalf of Appellee.

No. 07-2481.

United States Court of Appeals, Eighth Circuit.

Submitted: September 24, 2008.

Filed: October 2, 2009.

Scott Paris Richardson, AAG, argued, Little Rock, AR (Christine Ann Boozer, AAG, on the brief), for Appellant.

Elizabeth Alexander, argued, Washington, D.C. (Cathleen V. Compton, Little Rock, AR, on the brief), for Appellee.

Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.

MURPHY, Circuit Judge.

Shawanna Nelson brought this 42 U.S.C. § 1983 case asserting Eighth Amendment violations by Larry Norris, Director of the Arkansas Department of Correction (ADC), and ADC corrections officer Patricia Turensky. Nelson alleges that while giving birth to her child she was forced to go through the final stages of labor with both legs shackled to her hospital bed in violation of the Eighth Amendment. She alleges that Director Norris failed to ensure that appropriate policies for the treatment of pregnant inmates were implemented and that Officer Turensky, despite having witnessed her severe contractions and despite the expressed wish of medical personnel, failed to follow prison regulations requiring her to balance any security concern against the medical needs of the patient. Nelson asserts that a reasonable corrections officer would have known that she should not have been restrained by shackles while on the verge of giving birth and that she was in no condition to flee while her whole body was engaged in moving her baby to birth.

The district court denied the defendants' motions for summary judgment based on qualified immunity, and they appealed. After a panel of this court affirmed in part and reversed in part, we granted Nelson's petition for rehearing en banc and vacated the panel opinion. We now affirm the district court's denial of summary judgment to Officer Turensky but reverse with respect to Director Norris.

I.

Since this appeal is from a motion for summary judgment, we state the facts in the light most favorable to the nonmoving party. Humann v. KEM Elec. Coop., Inc., 497 F.3d 810, 811 (8th Cir.2007). Nelson was a twenty nine year old nonviolent offender who was six months pregnant with her second child when she arrived at the McPherson Unit of the ADC on June 3, 2003. She went into labor on September 20 and presented herself at the prison infirmary at 3:00 pm. Shortly thereafter Nelson began to cry out in pain, and by 3:25 pm her contractions were already only five to six minutes apart. The infirmary nurses determined that she must be immediately transported to a contracting civilian hospital to deliver her child. They requested a gate pass, a transport van, and an escort officer to get Nelson to the hospital.

Nelson was to be picked up in the sally port. To get there from the infirmary she had to be cleared through the central control gate and then walk down a long hallway nearly the length of a football field. Nurse Smith helped her leave the infirmary, and at the control gate the two met Officer Turensky, the assigned transportation officer. Turensky testified that after the group cleared the gate, she walked with Nelson the entire length of the hallway leading to the sally port.

Nurse Smith testified that Nelson had to stop twice on the way to the sally port because she was in so much pain "she couldn't walk" and had to lean against the wall for support. After the second or third time that Nelson's pain forced her to stop, Nurse Smith hollered to the sally port officers, "[a]s soon as I get [to the sally port], you better have the gate pass, because I want her out of here." Turensky wrote in her response to Nelson's prison grievance form that Lieutenant Williams had instructed her to "RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs." (emphasis in the original). She nevertheless put handcuffs on Nelson as soon as they reached the sally port. Nurse Smith testified that before Nelson was able to get into the transport van, she "had one [contraction] ... because I remember standing there and helping her breathe and then putting her in the van."

Officer Turensky and Nelson arrived at the hospital at 3:50 pm. Although Turensky later testified that Nelson neither said nor did anything to suggest she was an escape risk and that "she did not ever feel threatened by Nelson at any time," see Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir.2008), Turensky shackled Nelson's legs to a wheelchair and took her to the maternity ward. There, Nelson changed into a hospital gown and Turensky shackled both of her ankles to opposite sides of her hospital bed. According to Turensky's own entry in her security check log, Nelson's cervix had dilated to 7 centimeters by that time. This meant that Nelson was well into the final stage of labor when Turensky shackled her.¹ Nelson asked for an epidural anesthesia to ease her pain, but the nurses said she would have to wait for approval from the obstetrician, Dr. Hergenroeder, who was on his way.

According to Nelson's testimony, the shackles prevented her from moving her legs, stretching, or changing positions. A nurse told Officer Turensky that "[s]he wished that they wouldn't have to put those restraints on" Nelson, but to no avail. Each time a nurse needed to measure Nelson's dilation, that nurse had to ask Turensky to unshackle her. Although it was clear that Nelson was in the final stages of labor and no one on the hospital staff ever requested that she be reshackled, Nelson testified that Turensky "hooked [her] right back up" to the bed rails after each cervical measurement was taken. Turensky herself noted in her security check log that by 4:38 pm Nelson was dilated to 8 centimeters.

Dr. Hergenroeder arrived at 5:00 pm. According to his testimony he was only able to prescribe Tylenol to ease Nelson's pain because by that time it was too close to the delivery of her baby for an epidural. Turensky noted in her log that by 5:13 pm Nelson was dilated to 9 centimeters and that two nurses were helping her push her baby along the birth canal. Turensky also noted at 5:40 pm that Nelson was feeling sick. At 6:15 pm she was taken to the delivery room where her baby boy was born at 6:23 pm. Nelson's shackles were apparently removed at Dr. Hergenroeder's request before she went into the delivery room. At 6:40 pm Turensky went off duty and left the hospital.

Nelson asserts that as a result of being shackled during her labor, she was unable to move her legs or stretch during "the most painful and stressful" part of it. She produced evidence that the shackling caused her extreme mental anguish and pain, permanent hip injury, torn stomach muscles, and an umbilical hernia requiring surgical repair. She has also alleged damage to her sciatic nerve. According to Nelson's orthopedist, the shackling injured and deformed her hips, preventing them from going "back into the place where they need to be." In the opinion of her neurosurgeon the injury to her hips may cause lifelong pain, and he therefore prescribed powerful pain medication for her. Nelson testified that as a result of her injuries she cannot engage in "ordinary activities" such as playing with her children or participating in athletics. She is unable to sleep or bear weight on her left side or to sit or stand for extended periods. Nelson has also been advised not to have any more children because of her injuries.

Turensky had been a correctional officer at McPherson for approximately six years at the time Nelson went into labor on September 20, 2003. During her prison orientation Turensky had received training on the laws and regulations governing hospital transports, and she had participated in at least forty hours of additional classroom training each year.

Several of the ADC regulations specifically applied to the shackling of prisoners.² Administrative Regulation 403, for example, stated the ADC policy that shackles were to be used "only when circumstances require the protection of inmates, staff, or other individuals from potential harm or to deter the possibility of escape." Ark. Dep't of Corr. Admin. Reg. 403 § V (1992). Administrative Directive 95:21 required any officer responsible for transporting an inmate to a hospital to "use good judgment in balancing security concerns with the wishes of treatment staff and the medical needs of the inmate" before shackling an inmate during a hospital stay. Ark. Dep't of Corr. Admin. Dir. 95:21 § (IV)(B)(4)(c) (1995). If...