Victoria W. v. Larpenter

• Decision Date: 21 May 2002
• Docket Number: No. Civ.A. 00-1960.,Civ.A. 00-1960.
• Citation: 205 F.Supp.2d 580
• Parties: VICTORIA W. v. Jerry J. LARPENTER, et al.
• Court: U.S. District Court — Eastern District of Louisiana

205 F.Supp.2d 580

VICTORIA W. v. Jerry J. LARPENTER, et al.

No. Civ.A. 00-1960.

United States District Court, E.D. Louisiana.

May 21, 2002.

COPYRIGHT MATERIAL OMITTED

Linda A. Rosenthal, Julie Rikelman, Hillary Schwab, Center for Reproductive Law & Policy, New York City, William E. Rittenberg, Rittenberg & Sanuel, LLC, New Orleans, LA, Bettina E. Brownstein, Attorney at Law, Little Rock, AR, for Plaintiff.

Gustave A. Fritchie, III, Stephanie Lottinger Irwin, Irwin, Fritchie, Urquhart & Moore, LLC, New rleans, LA, Jeffrey M. Boudreaux, APLC, Houma, LA, Joseph J. Weigand, Jr., Attorney at Law, Houma, LA, for Terrebonne Parish.

L. Lane Roy, Dawn L. Morris, Preis, Kraft & Roy, Lafayette, LA, for William F. Dodd.

Danna Schwab, Schwab Law Firm, Houma, LA, Ramona N. Wallis, McNabb & Associates, Houma, LA, for Terrebonne Parish Consolidated Government, Dave Norman, Joe Null, Ed Byerly.

REASONS

ZAINEY, District Judge.

Plaintiff Victoria W. filed this suit for damages pursuant to 42 U.S.C. § 1983 and Louisiana state law claiming that Defendants violated her constitutional rights under the Eighth and Fourteenth Amendments because she failed to obtain a timely non-therapeutic abortion while incarcerated at the Terrebonne Parish Criminal Justice Complex in 1999. Plaintiff named as defendants Jerry J. Larpenter, Sheriff of Terrebonne Parish, William F. Dodd, attorney for the Sheriff of Terrebonne Parish, Joe Null, Warden of the Terrebonne Parish Criminal Justice Complex ("TPCJC"), Terrebonne Parish Consolidated Government ("TPCG"), Dave Norman, attorney for TPCG, Ed Byerly, Medical Administrator of TPCJC, Charles Spence, Medical Director of TPCJC, and their respective insurers. All defendants were sued in their individual and official capacities.

Trial was set to commence on May 6, 2002, before the bench. On March 27, 2002, the following motions were set for hearing:

Motion for Summary Judgment by plaintiff Victoria W. (Rec.Doc. 151);

Motion for Summary Judgment by defendants Jerry J. Larpenter and Joe Null (Rec.Doc. 130);

Motion for Summary Judgment by defendant William F. Dodd (Rec.Doc. 131);

Motion for Summary Judgment by defendants TPCG, Dave Norman, Ed Byerly, and Charles Spence (Rec.Doc. 138);

Motion to Strike Witness Lists by plaintiff Victoria W. (Rec.Doc. 150).

On April 10, 2002, the Court heard oral argument and took all five motions under advisement. On April 16, 2002, in light of the fast-approaching trial date and the daunting volume of documentary evidence submitted in support of the various motions, the Court issued an order without reasons granting Defendants' cross motions for summary judgment, and dismissing all of Plaintiff's federal claims with prejudice. Rec. Doc. 191.

At this time, after full consideration of the memoranda, the evidence of record, the arguments of counsel, and the applicable law, the Court issues these reasons to fully explain the April 16, 2002, order of dismissal.

FACTUAL BACKGROUND

Plaintiff Victoria W.¹ was an inmate at the TPCJC from July 28, 1999, to October 13, 1999, serving a sentence for simple battery following revocation of probation. Upon arriving at the facility on July 28, 1999, Plaintiff received a routine physical examination which revealed that she was pregnant. Plaintiff asserts that she immediately informed the medical personnel who conducted the examination that she wished to terminate the pregnancy.² On July 31, 1999, a blood test taken at the Chabert Medical Center confirmed the pregnancy, and on August 6, 1999, an ultrasound conducted at that same facility revealed that Plaintiff was 15 weeks and 3 days pregnant. All of this offsite medical treatment was provided without the necessity of any court intervention nor was Plaintiff required to pay for the medical treatment she received.

On or about August 12, 1999, Plaintiff met with defendant Ed Byerly, the TPCJC medical administrator, regarding her request for an abortion. Plaintiff informed Byerly that she wanted an abortion and had the money to pay for it herself.³ Plaintiff claims that during this meeting, Byerly informed her that in order to obtain an abortion she would have to hire an attorney and obtain a court order authorizing the procedure.⁴

At the August 12^th meeting, Byerly attempted to assist Plaintiff by permitting her to use the telephone to phone her attorney⁵ as well as several abortion clinics. Plaintiff spoke with her attorney, Howard Marcello, at that time and even asserts that Byerly took the phone from Plaintiff to explain "the court order position" to Marcello.⁶ On August 19, 1999, Byerly authored a letter to the TPCJC warden, defendant Joe Null, expressing his concerns over Marcello's having not contacted the TPCJC following his conversation with Plaintiff, the timeliness of an abortion, and the possible legal implications of Plaintiff being unable to obtain an abortion within the legal time period.⁷

On or about that same date, August 19, 1999, Null delivered to Plaintiff a letter authored by defendant Dodd and addressed to Plaintiff.⁸ In that letter, Dodd clarifies inter alia that Plaintiff would need a court order authorizing her release from the TPCJC in order to obtain the abortion and that under no circumstances would the Sheriff pay for the abortion and its attendant costs given that it was not medically required. He also acknowledged that there seemed to be some problem with Plaintiff's attorney acting on her request for the court order, but that again the Sheriff and the Parish were not required to remedy those problems or to act. In closing, Dodd stated that the letter should make clear to Plaintiff the position of the Sheriff and likely the Parish.⁹ It is undisputed that this was the first and only request for an inmate abortion ever received at the TPCJC.

On September 1, 1999, Marcello filed a Motion for Reconsideration of Sentence which was heard on September 9, 1999. From the transcript of that proceeding it is clear that Marcello did not inform the court that Plaintiff sought to obtain an abortion.¹⁰ Rather, Marcello requested that Plaintiff be excused from serving the rest of her sentence given that she was pregnant and that complications with her pregnancy rendered the prenatal care available at the facility insufficient. The judge found insufficient evidence to rule on the motion at the time absent an evaluation by an obstetrician.¹¹

For reasons unclear from the record, Plaintiff was not brought to the courtroom during the hearing on the motion to reconsider sentence, although she was in custody in the courthouse building.¹² She claims to have learned only after the hearing was over that Marcello had not informed the court of her desire to terminate the pregnancy. Marcello denies that Plaintiff ever told him that she wanted an abortion.¹³ Rather, he claims that Plaintiff contacted him because of her concern for her unborn child given the inadequacies of prenatal care at the prison. It is undisputed that Plaintiff was still within the legal time limit for obtaining an abortion under Louisiana law when the motion to reconsider sentence was heard in open court. It is unclear from the record what subsequent steps, if any, Plaintiff took in furtherance of obtaining the abortion.

Plaintiff was released from the TPCJC on October 13, 1999, slightly more than 25 weeks pregnant and unable to obtain an abortion in Louisiana. She gave birth in January 2000, and placed the child with adoptive parents.

PLAINTIFF'S ALLEGATIONS AND PRIOR PROCEEDINGS

Plaintiff filed the instant suit in July 2000, pursuant to 42 U.S.C. § 1983, and state law.¹⁴ As for the federal claims, Plaintiff asserts that Defendants' actions, as well as the court order policy requiring her to hire an attorney, obtain a court order, and pay all attendant costs of the abortion, prevented her from exercising her constitutional right to an abortion as guaranteed by the Fourteenth Amendment.

Plaintiff also asserts that an abortion is a "serious medical need" to which Defendants were deliberately indifferent in violation of the Eighth Amendment, and that by requiring Plaintiff to carry her pregnancy to term, Defendants imposed cruel and unusual punishment in violation of the Eighth Amendment.

Plaintiff further maintains that by singling out abortion as the only type of medical care for which inmates must hire an attorney, she was discriminated against on the basis of gender in violation of the Fourteenth Amendment. Plaintiff asserts that throughout her pregnancy, including the delivery, she experienced substantial physical pain and discomfort, as well as psychological and emotional harm as a result of not being permitted to terminate the pregnancy. She seeks money damages to compensate her for the medical expenses she incurred as well as for physical and emotional suffering, attorney's fees, and punitive damages.

Via prior motions for summary judgment, all claims against the individual Defendants in their personal or individual capacities have been dismissed on the basis of qualified immunity.¹⁵ Accordingly, the only section 1983 claims remaining in this suit are those against the TPCG and the individual defendants in their official capacities. However, because a lawsuit against a government official in his official capacity is the equivalent of an action against the government entity he serves, Ashe v. Corley, 992 F.2d 540, 541 n. 1 (5th Cir.1993) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)), the only defendants now facing potential liability in this suit are the TPCG and the Sheriff,¹⁶ the local entities for which the other defendants were agents.¹⁷ Consequently, the sole issue remaining before this Court vis à vis Plaintiffs section 1983 claims is whether Plaintiff was deprived of a constitutional right by the execution of a policy adopted or promulgated by persons classified as "policy makers" for the Sheriff's Office and/or TPCG. See ...