Case 1:04-cv-00037-JMM Document 96 Filed 05/05/10 Page 1 of 4

IN THE UNITED STATES DISTR ICT COURT EASTERN DISTRICT OF AR KANSAS NORTH ERN DI VISION

SHAWANNA NELSON

PLAINTIFF

v.

CASE NO.: I :04-CV-0037 JMM -JWC

OFFICER PATRICIA TURNESKY

DEFENDANT

SECOND AMENDED COMPLAINT
Comes the Plai ntiff, Shawanna Lumsey, fonnerly known as Shawanna Nelson. by and
through her anomeys. James, Carter & Coulter and fo r Second Amended Complaint. states: 1. This is an acti on to secure the rights, privileges and immunities guaranteed by the
Eighth Amendment to the Untied States Const ituti on as authorized by 42 U.S.c. 1983: to award P lai ntiff damages for the infliction of extreme pain and suffering and mental anguish as a result of the violations described be low: and to award Plaintiff costs, attorneys fees and any other relief to which she would be entitl ed resulti ng from the vio lation of her Eighth Amendment Right to be free of crue l and unusual puni shmen t.
2. Jurisd ict ion of this Court is invoked under 28 U.S.C. 1342 (3) and (4) and is also a proceeding brought pursuant to 28 U.S.C. 220 I and 2202.
3. Plaintiff is a citizen and resident of Pulaski County. Arkansas. She was formerl y incarcerated at the Arkansas Department of CorrectiOilS, McPherson Unit, Newport. Arkansas.
4. On or about June 3. 2003. Pl ainti ff was incarcerated at the Arkansas Department of Correction located in Newport. Arkansas. Plaintiff was pregnant at the time of her incarceration.

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5. Defendant Officer Turensky is an employee and agent of the Department of Correct ion Unit located in Newport, Arkansas. Officer Turensky inflicted injury upon the Plaintiff by refusing to remove Plaintiffs restraints while Plaintiff was in the final stages of labor, which interfered with appropriate positioning and relaxation cnlc ial to the control of pain and to the proper and safe deli very of the child. Defendant Tumesky is being sued in her official and individual capacity.
6. At approx imately 5:00 a.l11. on September 20, 2003 the Plaintiff began her labor. Plaintiff reported to the infirmary and was told that she would not be allowed to report to the local hospital until her contractions were 4 to 5 minutes apart. The nurses refused to examine the Plaintiff to detennine the progress of her cervical dilation, and there fore. failed to provide the most appropriate manner in wh ich to gauge the progress of labor. The nurses failed to provide any equipment at the prison infirmary that is typically utilized at all hospi tals to measure and monitor the strength of the Pl ai ntiff s contractions as well as the effect of the contractions on the fetal heart rate.
7. At the time that the Plaintiff arrived at the hospital , Officer Turensky refused to remove the Plaintiffs shackles and leg restraints, despite requests Crol11 the medi ca l personnel. At the time the Plaintiff was enduring the most painful part of labor, Officer Turensky intentionally allowed Plaintiff's pain and anxiety to be aggravated through the refusal to remove and leave otfthe restraints despi te requests made by medical personnel. The Pl aint iffs restraints were not removed until Plaintiff was pl aced on the delivery table. The acti ons of Officer Tu rensky constituted an intentional disregard for the suffering of the Plaintiff and are a clear violation of the Eighth Amendment prosc ripti on against cruel and unusual punishment.
8. As a result of the above described conduct, Plaintiff endured extreme mental anguish and physical injury including pain and suffering. The failure to remove the restraints
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and shackles interfered with Plaintiff's positioning and caused her to be unable to help control her pain resulting in addit ional unnecessary physical pain.
9. The ri ghts of the Eighth Amendment and its prescription against cruel and unusual punishment particu larl y as it relates to the denial of essenti al medical care is well established and is known by all the Defendants named in thi s lawsu it. Administrator and employees of prisons have been clearly directed to provide essential medical care to inmates who are experienci ng serious medical problems. The process of childbirth poses serious risk s to both mother and child and the process deserves appropriate care and monitoring and treatment. The failure of Officer Turensky to remove restraints is clearl y an infliction of cmel and unusual punislunent upon Plaintiff who was already enduring extreme pain and stress and who was vulnerable to back injury during the course of labor and delivery.
10. Because she is no longer a prisoner as defined in 43 U.S .C. 1997, the Prison Litigation Refonll Act no longer appli es to her claims, or to her damages or attorneys' fees.
II. As a resull of the damages infli cted upon the Plaintiff. she is emitled to the relief as follows:
(a) That thi s Court enter a declaratory judgment that the actions of Officer Turen sky violated the Eighth Amendment under color of law as prohibited by 42 U.S.c. 1983.
(b) That Plai ntiff be awarded both compensatory damages for her pain and suffering. (c) That Plai ntifTbe awarded puniti ve damages. (d) That Plaintiff be awarded attorney's fees and costs; and (g) That Plaint iff be awarded such additional and further relief to which she is entitled and which thi s Court deems is just and proper; and for any additional relief to wh ich she may become eligib le during the pendency oflhis litigation.
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WHEREFORE. Plaintiff respectfu ll y prays that this Court enter a judgment gralHing a declaratory j udgment that the Defendants' acts, policies, and practices comp lained of herein. vio lated Plaintiff's rights secured by the Eighth Amendmen t to the United States Constitution: joint and several nominal. compensatory, and punitive damages against the Defendant: for reasonable anomeys' 42 U.S.C. § 1988 fees; and. all other proper and just re lief. whether specificall y prayed fo r herein or not.
Respectfully subm itted, SI-IAWANNA NELSON By: lsi Paul J. James Pau l J. James, Ark. Bar No.: 83091 James, Carter & Coulter. PLC P.O. Box 907 Litt le Rock, AR 72203 (50 1) 372-1414 (501) 372-1659 (facsimile) Email: pjj rm jamescarterlaw.com CERTIFI CATE O F SE RVICE The undersigned hereby certifies that a copy of the above and foregoing was served this 51h day of May, 20 10, via electronic mai l to: Christ ine A. Cryer Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street. Suite 200 Litt le Rock, AR 7220 I Christine. crverfa) arkansasa g. 20V
lsi Paul J. James Paul J. James
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 Case 1:04-cv-00037-JMM Document 44 Filed 11/21/06 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

SHAWANNA NELSON

VS.

NO. 1:04CV00037

CORRECTIONAL MEDICAL SERVICES, INC., ET AL

PLAINTIFF DEFENDANTS

BRIEF IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION Ms. Shawanna Nelson (“Nelson”), through counsel, has filed a 42 U.S.C. §1983 lawsuit against multiple defendants - Correctional Medical Services, Inc. (“CMS”), Max Mobley (“Mobley”), Larry Norris (“Norris”), and Patricia Turensky (“Turensky”). Nelson makes the following allegations: (1) CMS has an unconstitutional policy and custom with respect to the protocol used for female inmates in labor which fails to provide adequate monitoring of labor progress, as well as the heart rate of the fetus; (2) Mobley and Norris concurred in the policy used by CMS with respect to female inmates in labor; (3) Turensky applied restraints to Nelson while Nelson was approaching the end stages of labor, in violation of Nelson’s civil rights; (4) the restraint policy utilized by Turensky was implemented and enforced by Norris; (5) Turensky engaged in retaliation against Nelson as a result of Nelson filing grievances against Turensky.

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This Motion/Brief is filed on behalf of Separate Defendant CMS. CMS has no responsibility for, or involvement in, security, restraints, shackles, or securing inmates in any manner. Accordingly, except for consideration of the security issue in the context of the Prison Litigation Reform Act (PLRA) grievance issue, the security allegation is not discussed in this Motion/Brief.
Nelson has no evidence to support her allegation that the protocol used for female inmates in labor is unconstitutional. Additionally, Nelson has failed to comply with the requirements of the PLRA before initiating litigation in this action. For both of the above reasons, CMS submits that this matter should be dismissed with prejudice.
II. SUMMARY JUDGMENT Summary judgment is appropriate if there are no disputed issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Barrera v. Con Agra, Inc., 244 F.3d 663, 665 (8th Cir. 2001). The Court must view the evidence in the light most favorable to the non-moving party and determine whether all of the evidence points one way, giving her the benefit of all reasonable factual inferences. Belk v. City of Eldon, 228 F.3d 872, 877-878 (8th Cir. 2000). A plaintiff must establish a clear violation of a constitutional right to prevail upon a section 1983 claim. Mahers v. Harper, 12 F.3d 783, 785 (8th Cir. 1993). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the Supreme Court articulated guidelines for applying Rule 56 to defense motions for summary judgment stating, "the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex at 322. The Court
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explained that, in such a situation, "there could be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial." Celotex at 322-23.
Therefore, once a motion is made, the burden shifts to the Plaintiff to offer "sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy." Gregory v. City of Rogers, 974 F.2d 1006, 1010 (8th Cir. 1992) (quoting Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 681 (9th Cir. 1985). "The mere existence of a factual dispute is insufficient alone to bar summary judgment; rather the dispute must be outcome determinative under prevailing law." Holloway v . Pigman, 884 F.2d 365, 366 (8th Cir. 1989). Moreover, if the plaintiff fails to demonstrate the existence of a genuine issue of material fact by offering significant probative evidence, defendants are entitled to judgment in their favor as a matter of law. Pentel v. City of Mendota Heights, 13 F.3d 1261, 1263 (8th Cir. 1994). A non-movant has an obligation to present affirmative evidence to support his claims. Settle v. Ross, 992 F.2d 162, 163 (8th Cir. 1993).
Broad and conclusory statements unsupported by facts are not sufficient to support a §1983 claim. Ellingburg v. King, 490 F.2d 1270, 1271 (8th Cir. 1974); Morton v. Becker, 793 F.2d 185 (8th Cir. 1985). Conclusive assertions of ultimate fact are entitled to little weight when determining whether a non-movant has shown a genuine issue of fact sufficient to overcome a motion for summary judgment supported by complying affidavits. Miller v. Solem, 728 F.2d 1020, 1024 (8th Cir. 1984). Summary judgment is designed to remove such factually unsubstantial cases from the crowded district court dockets. Smith v. Marcantonio, 910 F.2d 500, 502-503 (8th Cir. 1990).
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Because Defendant CMS did not cause the deprivation of Nelson’s constitutional rights, and because no genuine issue of material fact exists, defendant’s Motion for Summary Judgment should be granted and plaintiff's Complaint and Amended Complaint should be dismissed. Whether or not a claim exists against defendant is solely a question of law for this Court to decide.
III. EIGHTH AMENDMENT VIOLATION Deliberate indifference to a prisoner's serious medical needs constitutes cruel and unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104-06 (1976). Deliberate indifference can be manifested by prison medical personnel in their response to the prisoner's needs. Id. at 104-105. An actual subjective knowledge of the risk of harm is necessary to a finding of deliberate indifference. See Farmer v. Brennan, 511 U.S.825, 837 (1994). To find an Eighth Amendment violation, the deliberate indifference must rise to the level of an unnecessary and wanton infliction of pain. Jorden v. Farrier, 788 F.2d 1347, 1348 (8th Cir. 1986). A prisoner must show evidence of action with malicious and sadistic intent, or with deliberate indifference. Moody v. Proctor, 986 F.2d 239, 241-42 (8th Cir. 1993). Deliberate indifference requires more than “gross negligence”. Estate of Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) Deliberate indifference requires a highly culpable state of mind approaching actual intent. Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993). There must be actual knowledge of the risk of harm, followed by deliberate action amounting to callousness. Bryan v. Endell, 141 F.3d 1290, 1291 (8th Cir. 1998). Negligence in diagnosing or treating a medical condition does not constitute a cognizable claim of deliberate indifference in violation of the Eighth Amendment. Estelle, 429 U.S. at 106. A mere
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disagreement with the course of an inmate's medical treatment also fails to give rise to a constitutional violation. Taylor v. Bowers, 966 F.2d 417, 421 (8th Cir.), cert. denied, 506 U.S. 946 (1992); Smith v. Marcantonio, 910 F.2d 500, 502 (8th Cir. 1990). Physicians "make treatment decisions on the basis of a multitude of factors, only one of which is the patient's input." Givens v. Jones, 900 F.2d 1229, 1231 (8th Cir. 1990). Prison doctors are free to exercise their independent medical judgment. Dulany v. Carnahan, 132 F.3d 1234 (8th Cir. 1997) citing Long v. Nix, 86 F.3d 761, 765 (8th Cir. 1996).
“Grossly incompetent or inadequate care can constitute deliberate indifference in violation of the Eighth Amendment where the treatment is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.” Id at 1240-1241, citing Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1990). Thus, a plaintiff must put forth evidence that medical treatment evidenced intentional maltreatment or was grossly inappropriate. Id at 1241. The plaintiff is required to present evidence “that the course of treatment, or lack thereof, so deviated from professional standards that it amounted to deliberate indifference in violation of the Eighth Amendment right to be free from cruel and unusual punishment.” Id at 1243 citing Smith, 919 F.2d at 93 (internal quotations omitted) (emphasis added).
In the face of medical records indicating that treatment was provided and physician Affidavits indicating that the care provided was adequate, an inmate cannot create a question of fact by merely stating that “she did not feel she received treatment”. Dulany v. Carnahan, at 1240.
A complaint that a delay in medical treatment to an inmate rose to a constitutional violation requires the plaintiff to place verifying medical evidence in the record to establish the detrimental effect of delay in order to succeed. Beyerbach v. Sears, 49 F.3d 1324 (8th Cir. 1995); see also Crowley v. Hedgepeth, 109 F.3d 500, 502 (8th Cir. 1997). Sufficient evidence must be submitted "that defendants
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ignored 'an acute or escalating situation' or that the delays adversely affected" the prognosis. Sherrer v. Stephens, 50 F.3d 496 (8th Cir. 1994). When an inmate is complaining about a delay in treatment, the objective “seriousness” of the deprivation must be measured by reference to the effect of any delay. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997).
IV. CORPORATE LIABILITY UNDER §1983 For a defendant to be held liable under §1983, the defendant must have personally participated in, or had some responsibility for, the particular act which deprived the plaintiff of a constitutionally protected right. See Mark v. Nix, 983 F.2d 138, 139-40 (8th Cir. 1993); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990). Liability under §1983 requires a causal link to, and direct responsibility for, the deprivation of rights. Madewell, 909 F.2d at 1208. The doctrine of respondeat superior is an improper basis upon which to rest a §1983 claim, and an entity thus cannot be held liable solely on the actions or inactions of its subordinates. Bolin v. Black, 875 F.2d 1343, 1347 (8th Cir.), cert. denied, 493 U.S. 993 (1989). A corporation, like a municipality or any other employer, cannot be saddled with §1983 liability for the actions of its employees solely under a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691 (1978); Powell v. Shopco Laurel Co., 678 F.2d 504, 506 (4th Cir. 1982). However, an entity may be held liable for constitutional deprivations upon a showing that the entity has established or implemented an unconstitutional policy or custom which is causally related to the violation of constitutional rights. Patzner v. Burkett, 779 F.2d 1363, 1367 (8th Cir. 1985). See Kentucky v. Graham, 473 U.S. 159, 166-67 (1985). See also Crumpley-Patterson v. Trinity Lutheran Hospital, 388 F.3d 588 (8th Cir. 2004) (complaint in action under §1983 against
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corporation must allege facts which would support the existence of an unconstitutional policy or custom).
In Pietrafeso v. Lawrence County South Dakota, et al, 452 F.3d 978, 982 (8th Cir. 2006), the Court considered the issue of Lawrence County’s allegedly grossly inadequate policies for dealing with medical needs of transferees. The Court held as follows:
“In Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397, 407, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997), the Supreme Court clarified the standards for municipal liability under §1983. A county is liable if an action or policy itself violated federal law, or if the action or policy was lawful on its face but ‘led an employee to violate a plaintiff’s rights [and] was taken with “deliberate indifference” as to its known or obvious consequences.’ Here, Lawrence County’s policies and practices for providing inmates with needed medical care were lawful on their face. Thus, Pietrafeso’s claim that the policies were constitutionally inadequate required proof that at least one of the individual defendants violated Rocco’s constitutional rights and caused the alleged injury. See Goldberg v. Hennepin County, 417 F.3d 808, 812-13 (8th Cir. 2005); Olinger v. Larson, 134 F. 3d 1362, 1367 (8th Cir. 1998).” Thus, the Court makes it clear that a municipality, or corporation, can be liable if its policy violates federal law, or if the policy was lawful on its face, but led an employee to violate federal law. However, as more clearly explained in Goldberg, in the latter instance, an individual must also be named as a defendant and it must be demonstrated that the individual engaged in an act or omission that deprived the plaintiff of their constitutional rights.
V. PRISON LITIGATION REFORM ACT The PLRA provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other federal law, by a prisoner confined in any jail, prison, or other
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correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. §1997e. (emphasis added).
The exhaustion requirement of the PLRA is mandatory. See Chelette v. Harris, 229 F.3d 684, 688 (8th Cir. 2000); McAlphin v. Morgan, 216 F.3d 680, 682 (8th Cir. 2000); Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000); and Castano v. Nebraska Dep't of Corrections, 201 F.3d 1023, 1025 (8th Cir. 2000). "The statute's requirements are clear: If administrative remedies are available, the prisoner must exhaust them." Chelette, 229 F.3d at 688.
When there is clearly a failure to exhaust as to any claim set out in the complaint, the entire action must be dismissed. Graves v. Norris, 218 F.3d 884 (8th Cir. 2000). (emphasis added). Further, “. . . a prisoner who files a complaint in Federal Court asserting multiple claims against multiple prison officials based on multiple prison grievances must have exhausted each claim against each defendant in at least one of the grievances.” Abdul-Muhammad v. Kempker, 450 F.3d 350, 352 (8th Cir. 2006). See also Barber v. Hurst, United States District Court for the Eastern District of Arkansas, Pine Bluff Division, Case No. 5:05CV00347, wherein United States Magistrate Jerry W. Cavaneau made the following findings and recommendation:
“The Eighth Circuit has recently mandated the dismissal of §1983 complaints pursuant to §1997(e)(a) based on the inmate’s failure to identify by name during the grievance process each individual defendant he later sued in Federal Court. See Abdul-Muhammad, et al v. Kempker, 450 F.3d 350, 351-52 (8th Cir. 2006). . . Moreover, plaintiff is required to identify by name during the grievance process each individual defendant he later sues in Federal Court, which he failed to do. Failure to comply, or compliance in part, produces the same result; a dismissal without prejudice of the entire complaint. Abdul-Muhammad 450 F.3d at 352; Johnson 340 F.3d at 627; Graves, 218 F.3d at 885.”
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Magistrate Cavaneau’s proposed findings and recommended disposition were adopted by United States District Judge J. Leon Holmes in an Order entered September 14, 2006. Additionally, “. . .when an inmate joins multiple prison-condition claims in a single complaint, as in this case, §1997(e)(a) requires that the inmate exhaust all available prison grievance remedies as to all his claims prior to filing suit in Federal Court.” Graves v. Norris, 218 F.3d 884, 885 (8th Cir. 2000) (per curiam). If all available administrative remedies have not been exhausted as to all claims before the suit is filed, dismissal of the complaint is mandatory. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); see also AbdulMuhammad at 352.
The PLRA "requires a prisoner to exhaust 'such administrative remedies as are available before suing over prison conditions." Booth v. Churner, 532 U.S. 731, 733, 121 S.Ct. 1819 (2001) (emphasis added). The Supreme Court further examined the exhaustion issue in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 985 (2002), stating that the case before it "concerns the obligations of prisoners who claim denial of their federal rights while incarcerated to exhaust prison grievance procedures before seeking judicial relief." (emphasis added). In discussing Booth, the Supreme Court noted its holding that “[e]ven when the prisoner seeks relief not available in grievance proceedings, notably money damages, exhaustion is a prerequisite to suit." Porter, 122 S.Ct. at 988. (emphasis added). The Supreme Court further noted that "federal prisoners ... must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a §1983 suit. Id. (emphasis added).
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Prisoners must provide proof of complete exhaustion for each claim joined in a single action, Graves at 885, and the process must be fully completed prior to filing suit. Johnson v. Jones, 340 F.3d 624, 628 (8th Cir. 2003). Johnson specifically overruled Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999), which held that it is sufficient for prisoners to file a §1983 civil complaint prior to exhaustion of remedies as long as they are exhausted by the time of trial. Pursuant to Johnson, Williams is no longer the law, and the process of exhaustion must be completed prior to filing suit.
Technical compliance with all administrative requirements for exhaustion is mandatory under the PLRA. Woodford v. Ngo, 126 S. Ct. 2378, 165 L. Ed. 2d 368; 2006 U.S. Lexis 4891 (2006). “Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. . . . Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford at 2385-2386.
The PLRA applies not only to §1983 actions, but also to any action brought with respect to prison conditions under “. . . any other Federal law.” Porter at 524. In Porter, the Supreme Court construed the term “prison conditions”: “Nussle’s case requires us to determine what the §1997(e)(a) term ‘prison conditions’ means, given Congress’ failure to define the term in the text of the exhaustion provision.” Porter at 525. The Court concluded as follows:
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“For the reasons stated, we hold that the PLRA’s exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” (Emphasis supplied) Porter at 532.
The Eighth Circuit has held that the PLRA’s exhaustion requirement is an affirmative defense. In Nerness v. Johnson, et al, 401 F.3d 874, 876 (8th Cir. 2005), the Court holds:
“This Circuit considers the PLRA’s exhaustion requirement to be an affirmative defense that the defendant has the burden to plead and prove. Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir. 2001) (citing Chelette v. Harris, 229 F.3d 684, 686-88) (8th Cir. 2000).”
In view of the 8th Circuit’s holding in Nerness, the burden is on the defendant to plead and prove the plaintiff’s failure to exhaust pursuant to the PLRA.
VI. STATEMENT OF FACTS For the facts of this matter, CMS references the Court to its Statement of Indisputable Material Facts which is filed separately in accordance with Local Rule 56.1, as well as the various exhibits attached to its Motion for Summary Judgment.
VI. ANALYSIS (A) CONSTITUTIONAL LIABILITY: Nelson alleges CMS has an unconstitutional policy with respect to the protocol used for female inmates in labor which fails to provide adequate
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monitoring of labor progress as well as the heart rate of the fetus. Importantly, although Nelson proposes CMS’s labor and delivery policy is unconstitutional, she offers no proof that it is. Further, the physician who established CMS’s policy, Dr. Paul Hergenroeder (“Dr. H”), has testified that he uses this same policy with all of his patients, free world or inmate, and considers it medically sound and quite appropriate.
On September 20, 2003, Nelson resided at the McPherson Unit of the ADC. She was pregnant and at that time under the medical care of Dr. H. In many respects, her medical situation was no different than any of his other pregnant patients. Dr. H advises all patients, free world or inmate, to time their contractions when they go into what they believe is labor. If their contractions occur every five minutes or less, steadily for the period of an hour, they are to report to his office or the hospital.
When Nelson’s labor pains began, she reported to the infirmary. There, staff timed her contractions and initially found them to be six to eight minutes apart. Later, when Nelson’s contractions were five minutes or less apart, she was transported to the Newport Hospital. It took approximately 10-15 minutes for her to travel from the McPherson Unit to the hospital. Nelson arrived at the hospital at approximately 4:00 p.m. Dr. H was contacted and he arrived shortly thereafter. He examined Nelson and found her to be in the normal progression of labor. At 6:15 p.m., she was taken to the delivery room where nine minutes later she delivered a healthy 9 lb. 7.5 oz. boy.
Nelson’s labor and delivery process was no different than any of Dr. H’s other patients. They are advised not to come to his office or go to the hospital until their labor pains are five minutes or less apart, for a period of one hour. His reasoning for this is that there is a lot of false labor with respect to
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pregnancies. If labor pains are more than five minutes apart, one of two things will happen: (1) contractions will stop and the patient doesn’t need to be at the hospital; or, (2) contractions will come down to five minutes apart and there is a good chance the patient will deliver.
However, Nelson had an advantage which Dr. H’s free world patients do not - she had the assistance of infirmary staff to help her time her contractions and to generally observe her during her labor. Admittedly, no pelvic exams were performed and there was no fetal monitor attached; however, no free world patient has any such capabilities at her home. In actuality, with the exception of the infirmary staff assistance referenced above, Nelson’s situation was no different than any other pregnant woman who goes into labor at her residence and is ultimately transported to the hospital for delivery of a child.
Dr. H has been a practicing OBGYN for almost 30 years. He is appropriately licensed and has practiced in Newport, Arkansas, for more than 20 years. Nelson has presented no evidence that Dr. H’s policy regarding labor and delivery, which he utilizes in the care of his free world patients and which he instituted for CMS at the McPherson Unit, is even medically unsound, much less unconstitutional.
In order to establish CMS’s policy is unconstitutional, Nelson must present evidence “that the course of treatment, or lack thereof, so deviated from professional standards that it amounted to deliberate indifference in violation of the Eighth Amendment right to be free from cruel and unusual punishment.” Dulaney at 1243. Here we have testimony from Dr. H, a non-defendant, that the policy was followed and Nelson received appropriate care. In the face of medical records indicating the treatment was provided and physician testimony indicating that the care provided was adequate, an inmate cannot create a question of fact by merely stating that “she did not feel she received treatment”. Dulaney at 1240.
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There is no evidence that the policy utilized by CMS so deviated from professional standards that it amounted to an Eighth Amendment violation. There is evidence from a qualified medical practitioner that the policy is time tested and sound. Nelson has not created a question of fact about the constitutionality of CMS’s policy. Her case should be dismissed as to CMS.
(B) PRISON LITIGATION REFORM ACT: Nelson was incarcerated at the time the incidents in the Complaint allegedly occurred and at the time she filed this action. Accordingly, she was obligated to comply with all of the requirements of the PLRA. This she failed to do.
Attached to Nelson’s Amended Complaint were three grievances - No. MCP-03-2970 (medical policies regarding labor and child birth); MCP-04-0204 (denial of medical care by Defendant Turensky); and MCP-04-0488 (retaliation by Defendant Turensky). Also, although not attached to the Complaint, Nelson exhausted as to Grievance MCP-04-0862. That grievance regarded the need for proper medical treatment for leg and back pain, as well as treatment for a hernia. A thorough review of all four grievances establishes that Nelson appears to have cited most, if not all, of the issues referenced in her Complaint. However, Nelson did not name CMS, Mobley, or Norris in any of the grievances; the only defendant named was Turensky.
In Abdul-Muhammad v. Kempker, et al, 450 F.3d, 350 (8th Cir. 2006), the Eighth Circuit considered the necessity of putting all defendants on notice by naming them in a grievance before suing them. There, the Eighth Circuit held:
“. . . a prisoner who files a complaint in federal court asserting multiple claims against multiple prison officials based on multiple prison grievances must have exhausted each claim against each defendant in at least one of the grievances.” Abdul-Muhammad at 352.
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Thus, the Eighth Circuit made it clear that when suing multiple defendants, all should be named in at least one grievance related to the issues at hand. When the plaintiff failed to do so, the Eighth Circuit found: “Dismissal of the complaint on this ground in the present case was proper.” Abdul-Muhammad at 352.
Clearly, Nelson did not comply with the requirements of the PLRA. Though she sued four defendants, only one of them is named in the various grievances she filed. This is true even though she contends that the three non-named defendants are responsible for many policies and procedures which she alleges are unconstitutional. Because she failed to exhaust “each claim against each defendant in at least one of the grievances”, dismissal of the Complaint is required. See Barber v. Hurst, U.S.D.C. # 5:05CV00347.
While Nelson might argue that such a requirement is technical and that it elevates substance over form, the Supreme Court has ruled that technical compliance with all administrative requirements for exhaustion is mandatory under the PLRA. Woodford v. Ngo, 126 S. Ct. 2378, 165 L. Ed. 2d 368; 2006 U.S. Lexis 4891 (2006). “Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. . . . Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.” Woodford at 2385-2386.
Although Woodford dealt with time constraints, the decision nonetheless makes clear the fact that technical compliance with all requirements is mandatory under the PLRA. Nelson failed to name
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all defendants in the grievances she filed which relate to the issues in this suit. Therefore, she has failed to comply with the requirements of the PLRA and this action should be dismissed in its entirety.
Respectfully submitted, /s/ Alan Humphries, Bar ID #75064 Alan Humphries HUMPHRIES & LEWIS P.O. Box 20670 White Hall, AR 71612 Phone (870) 247-7035 E-mail: ahumphrieshl@sbcglobal.net ATTORNEYS FOR CORRECTIONAL MEDICAL SERVICES, INC.
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CERTIFICATE OF SERVICE I, Alan Humphries, do hereby certify that on _____________, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to: Ms. Cathleen V. Compton vselle@swbell.net Ms. Christine A. Boozer Christine.cryer@arkansasag.gov
/s/ Alan Humphries, Bar ID #75064 Alan Humphries
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 Case 1:04-cv-00037-JMM Document 50 Filed 11/22/06 Page 1 of 14

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION

SHAWANNA NELSON

PLAINTIFF

v.

No. 1:04CV00037 JJM

CMS, ET AL.

DEFENDANTS

BRIEF IN SUPPORT OF ADC DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Shawanna Nelson, a former inmate of the Arkansas Department of

Correction (hereinafter “ADC”), filed this lawsuit pursuant to 42 U.S.C. §1983. Plaintiff

raises several claims against the ADC Defendants, in which she alleges her constitutional

rights have been violated. Specifically, Plaintiff alleges in her Complaint and Amended

Complaint, the following: (a) Max Mobley failed to see to it that “proper policies and

customs” were implemented to protect inmates in labor from enduring extreme pain and

mental anguish; (b) Max Mobley failed to ensure that proper fetal monitoring equipment

was in the infirmary; (c) Larry Norris failed to see to it that “proper policies and customs”

were implemented with respect to restraints of female inmates who are in labor; (d)

Patricia Turensky inflicted injury upon Plaintiff by refusing to remove the shackles while

Plaintiff was approaching the end stages of labor; (e) Ms. Turensky refused to consider

the pain Plaintiff might be in; and (f) Ms. Turensky interfered with access to appropriate

medical care in retaliation for the grievances filed against her.

ADC Defendants dispute Plaintiff’s allegations that they were deliberately

indifferent to Plaintiff’s health and safety. Plaintiff is unable to meet her burden of

establishing a prima facie case; therefore, ADC Defendants are entitled to a dismissal of

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the claims against them. In addition, Plaintiff has failed to properly exhaust her

administrative remedies as to each of the named defendants as required under the Prison

Litigation Reform Act, 42 U.S.C. § 1997(e). For these reasons, Plaintiff’s Complaint

should be dismissed in its entirety.

II.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to a material

fact, and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56( c ). The Court views all evidence in the light most favorable to the nonmoving party. See Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994). When the

sufficiency of the complaint has been challenged, however, the plaintiff then bears the

burden of showing that there is a genuine issue of material fact left for trial and must

fulfill that burden by providing specific facts beyond those produced in the pleadings. See Pourmehdi v. Northwest Nat’l Bank, 849 F.2d 1145, 1146 (8th Cir. 1988); see also

Fed. R. Civ. P/ 56(e).

Rule 8 of the Federal Rules of Civil Procedure states: “A pleading which sets

forth a claim for relief ... shall contain... (1) a short and plain statement of the claim

showing that the pleader is entitled to relief ....” (Emphasis added). Rule 12(b) (6) of the

Federal Rules states that defenses may be made by motion for failure to state a claim

upon which relief can be granted. When analyzing a 12(b)(6) claim, the complaint’s

factual allegations are accepted as true and viewed in the light most favorable to the plaintiff. Hanten v. The School District of Riverview Gardens, 183 F.3d 799 (8th Cir. 1999) (citing Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999)). “The complaint

should be dismissed ‘only if it is clear that no relief can be granted under any set of facts

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that could be proved consistent with the allegations.’” St. Croix Waterway Association v. Meyer, 178 F.3d 515 (8th Cir. 1999) (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)).
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would demonstrate an entitlement to relief. Gordon v. Hansen, 168 F.3d 1109, 1113 (8th Cir. 1999)(citing Springdale Educ. Ass’n. v. Springdale Sch. Dist., 133 F.3d 649, 651 (8th Cir. 1998)). “At the very least, however, the complaint must contain facts which state a claim as a matter of law and must not be conclusory.” Briehl v. General Motors Corp., 172 F.3d 623, 627 (8th Cir. 1999) (citing Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995)). Because Plaintiff has failed to state a claim upon which relief can be granted, his Complaint should be dismissed and the ADC Defendant’s Motion for Summary Judgment should be granted.
III. ARGUMENT A. Plaintiff Has Failed to Exhaust Her Administrative Remedies as
Required by the PLRA.
ADC Defendants adopt the failure to exhaust argument presented by Separate Defendant CMS. (See DE 44, pp. 7 – 11). ADC Defendants state that Plaintiff has failed to fully exhaust her administrative remedies, not only as to all party defendants, but also as to each of the separate grievances, which will be addressed separately.
On September 26, 2003, Plaintiff files Grievance # MCP-03-2970 in which she voices several complains: not being transported to the hospital until her contractions were four minutes apart; restraints being placed on her at the hospital; and having natural
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child. (Ex. F). Grievance # MCP-03-2970 mentions Patricia Turensky by name. No other individuals are either mentioned or referenced in Grievance # MCP-03-2970. On October 9, 2003, Defendant Turensky completes an Inmate Grievance Investigation Worksheet regarding Grievance # MCP-03-2970. On October 11, 2003, Warden Maples responds to Plaintiff’s Grievance. Plaintiff appeals Warden Maples response on October 15, 2003. On January 15, 2004, Deputy Director Larry May responds to Plaintiff’s grievance appeal and states that he has found no evidence to substantiate her allegations.
On the same date that Plaintiff receives Deputy Director May’s denial of her first grievance, Plaintiff files her second grievance, # MCP-04-204, in which she complains about Cpl. Ashby & Cpl. Turensky not opening the barracks door when she requested them to do so. (Ex. G). Warden Maples responded to Plaintiff’s grievance the following day, in which he determined the issue to be of a medical nature and referred it to the Medical Administrator. Warden Maples also informed Plaintiff that if she didn’t agree with his decision, that she could appeal his decision to Max Mobley within ten days. Plaintiff did not appeal Warden Maples decision. (Ex. G).
On February 7, 2004, after Defendant Turensky issues a Major Disciplinary (Ex. H) to Plaintiff for washing her clothes in a mop sink, insolence to a staff member, and failure to follow orders, Plaintiff files her third grievance (MCP-04-488), alleging harassment and retaliation by Officer Turensky. (Ex. I). On February 22, 2004, Warden Maples responded to Grievance MCP-04-488, in which he found no merit to Plaintiff’s grievance. Warden Maples also informed Plaintiff that if she didn’t agree with his decision, that she could appeal his decision to Deputy Director Larry May within ten days. Again, Plaintiff did not appeal Warden Maples decision. (Ex. I).
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Administrative Directive 04-01: Inmate Grievance Procedure – identifies the grievance procedure to be followed by all ADC inmates. (Ex. L). (AD 04-01 supersedes AD 97-08, which also identified the inmate grievance procedure). According to AD 0401, in order for an inmate to completely exhaust a grievance, he or she must comply with the Procedures set forth in the policy. (Ex. L, pp. 3 – 13). The final set of the grievance procedure is to appeal a Warden’s Decision to the Deputy Director within the timeframe allotted, which is ten (10) days. In addition, Section IV. N – Prison Litigation Reform Act Notice places the inmate on notice with regard to their requirement to completely exhaust prior to filing a Section 1983 claim. (Ex. L).
Plaintiff has not asserted that she was either unaware of the ADC’s grievance procedure policy, that she was unable to comply with it for any reason, or that she was prevented by the defendants in complying. With regard to the three grievances filed by the Plaintiff regarding security concerns, the only grievance Plaintiff appealed to the Deputy Director level was Grievance #MCP-03-2970, in which she presents allegations against Defendant Patricia Turensky. (Ex. F). Plaintiff’s other two grievances were not appealed to the Deputy Director level, therefore were not fully exhausted and can therefore not be considered with regard to this lawsuit. With regard to Grievance #MCP03-2970, Plaintiff clearly did not identify or reference the other ADC Defendants, Larry Norris or Max Mobley; nor did she identify separate medical defendant CMS; therefore, pursuant to 2006 case law cited in CMS’ brief, Plaintiff’s claim must fail.
B. ADC Policies Related to Restraints and Pregnant Inmates In her Amended Complaint, Plaintiff alleges ADC Defendants Larry Norris and Max Mobley violated her constitutional rights by failed to see to it that “proper policies
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and customs” were implemented to protect inmates in labor. (See Amended Complaint). Plaintiff does not specifically allege the ADC policies are unconstitutional on their face, or that they were unconstitutionally applied as to her; therefore, ADC Defendants will briefly address both.
The ADC has in place a variety of policies and procedures which have been approved by the Arkansas Board of Correction and implemented department-wide. With regard to the use of restraints such as handcuffs, security belts and leg irons, the BOC originally adopted policies beginning in 1979. The policy, or Administrative Regulation, pertaining to restraints is AR 403. (Ex. N). AR 403 details the purpose of the policy, the applicability of the policy, defines the policy as well as the procedures to be followed in applying said policy. (Ex. N). With regard to the procedures, AR 403 states that restraints may be used when escorting/moving inmates. The need for said policy is clearly one of security.
With regard to transporting inmates, the ADC also has in place an Administrative Directive 95-21, which references AR 403, which relates to the organizations responsibilities for transporting inmates. (Ex. P). According to AD 95-21, inmates are to be placed in restraints when transported outside an ADC unit. (Ex. P).
Administrative Regulations are approved by the Board of Correction. Prior to said approval, they are reviewed by the Legislature. Once the Board has given its approval, the ADC management team implements directives to carry out the AR’s. (Ex. Q, p. 13). The AR’s are general. Administrative Directives are more specific. (Ex. Q).
In addition to Administrative Directives and Regulations, each unit of the ADC may implement Post Orders which outline procedures for a variety of activities. One
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such Post Order at the Newport Complex is the Hospital Security Post Order. (Ex. M). The Hospital Security Post Order provides special instructions on how and when inmates are to be transported to the hospital, as well as the use of restraints and firearms for the use of officers upon leaving the unit. The Post Order, effective in 2003, stated that all inmates leaving the unit were to be in restraints. Reference was also made to pregnant inmates, and read as follows: “Pregnant inmates in the final states of labor will not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.” (Ex. M).
Plaintiff testified in her deposition that the officer who with her at the hospital (Defendant Turensky) removed the shackles from the Plaintiff’s leg when she was asked to do so by the physician, and that this occurred prior to her being moved to the deliver room. (Ex. B, p. 44, 80). Based upon the Plaintiff’s own testimony, it is clear that Defendant Turensky followed the Post Order with regard to the restraints. Plaintiff has not provided, nor will she be able to provide, evidence that Defendant Turensky violated ADC’s policies or procedures as they related to this Plaintiff.
Dr. Hergenroeder, in his deposition, was asked about restraints being used with females in labor, especially during delivery. Dr. Hergenroeder testified that when the women are placed upon the delivery table, their legs are placed in the stirrups, and then their legs are strapped in place. He said this is done in order to have the women solid against the stirrup. He further stated the reason was that when a woman pushes during delivery, she may pull her leg out of the stirrup unless it’s held in position there, and that it is restrained there for the patients own safety. He also said that if this wasn’t done, that
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the female could end up dislocating her hip, and all kinds of other bad stuff. (Ex. O, pp. 80 – 81). The restraints referred to were not the leg shackles used by the ADC. Dr. Hergenroeder was also asked about whether or not he could recall any instances in which he asked for the officer to remove the shackles form the inmate and the officer refused. He said no, he did not, and that if that had happened, he would, have brought it to someone’s attention. (Ex. O, pp. 113-114).
With regard to a possible claim that the ADC policies are unconstitutional, ADC Defendants would state that Plaintiff has offered no proof that it is. ADC policies and procedures are implemented for the safety and security of all inmates, and those referenced are neither unconstitutional, or unconstitutionally applied to Plaintiff Shawanna Nelson.
C. The Plaintiff’s § 1983 Claim For Monetary Damages Against the Defendants In Their Official Capacity Is Barred By Sovereign Immunity Under The Eleventh Amendment To The United States Constitution.
The Plaintiff seeks jurisdiction of this Court pursuant to 42 U.S.C. § 1983 and an award of monetary damages against ADC Defendants Larry Norris, Max Mobley, and Patricia Turensky in their individual and official capacities. In their official capacities, ADC Defendants Norris, Mobley, and Turensky are not subject to a § 1983 lawsuit for monetary damages. ADC Defendants, as Plaintiff admits in his Complaint, are or were employees of the ADC. 42 U.S.C. § 1983 provides in pertinent part as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any ordinance, regulation, custom, or usage, of any state or territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunity served by the Constitution and laws, shall be
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liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.] (Emphasis added)
The United States Supreme Court has determined that neither states nor state
officials acting in their official capacities are “persons” within the meaning of 42 U.S.C.
§ 1983. Will v. Michigan Department of State Police, et al., 491 U.S. 58 (1989). The
Court reasoned in Will that a state official is in effect acting on behalf of the state and
therefore is immune from liability under the Eleventh Amendment to the Constitution. In
Will, the Court explained that “a suit against a state official in his or her official capacity
is not a suit against the official but rather is a suit against the official’s office. . . . As
such, it is not different from a suit against the state itself.” Id. at 71.
In reaching the conclusion that states are not “persons” for § 1983 purposes, the
Court further explained:
Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a state for alleged deprivations of civil liberties. The Eleventh Amendment bars such suits unless the state has waived its immunity... or unless congress has exercised its undoubted power under § 5 of the Fourteenth Amendment to override that immunity ... Id. (emphasis added).
The Eleventh Amendment to the United States Constitution provides “the judicial
power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by citizens of another state or
by citizens or subjects of any foreign states.” In Alabama v. Pugh, 438 U.S. 781 (1978),
the United States Supreme Court stated:
There can be no doubt, however, that suit against the state and its board of correction is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651 (1974); Ford Motor Co. v.
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Dept. of Treasury, 323 U.S. 459 (1945); Morechester County Trust Co. v. Ralley, 302 U.S. 292 (1937). Respondents do not contend that Alabama has consent to this suit, and it appears that no consent could be given under Article 1, Section 14, of the Alabama Constitution, which provides that: "the state of Alabama shall never be made a defendant in any court of law or equity." Pugh at 782. ADC Defendants are clearly not “persons” subject to liability making the present action in fact a lawsuit against the State of Arkansas. The Eleventh Amendment to the United States Constitution bars suits brought in federal court by an individual against a state. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996). This bar is absolute and can only be overcome in two circumstances: (1) if a state waives its sovereign immunity and consents to being sued in federal court, or (2) if Congress, through legislation, abrogates the state’s immunity in order to effectuate the provisions of the Fourteenth Amendment to the United States Constitution. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 (1985). A state employee acting in his or her official capacity enjoys the same Eleventh Amendment protection against suit as does the state itself. Will, 491 U.S. at 71. At all times relevant to this case, ADC Defendants Norris, Mobley, and Turensky were employees of the ADC. For purposes of this suit and all others, ADC Defendants Norris, Mobley, and Turensky, as state employees, are entitled to the protection of the Eleventh Amendment. Considering these facts, the Plaintiff’s § 1983 action against ADC Defendants Norris, Mobley, and Turensky, in their official capacity, is barred. D. ADC Defendants are Entitled to Qualified Immunity Government actors are entitled to immunity from suits for damages unless their actions violated clearly established law of which a reasonable government official would
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have been aware. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Eighth Circuit has established a three-pronged inquiry to be made when qualified immunity is asserted: “(1) whether the plaintiff has asserted a violation of a constitutional or statutory right; (2) if so, whether that right was clearly established at the time of the violation; and (3) whether, given the facts most favorable to the plaintiff, there are no genuine issues of material fact as to whether a reasonable official would have known that the alleged action indeed violated that right.” Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996). Qualified immunity must be granted for the official unless the Court determines that each of these three elements have been satisfied. Mays v. Rhodes, 255 F.3d 644, 647 (8th Cir. 2001).
The doctrine of qualified immunity was established in order to offer government officials protection from personal liability while performing their official functions. The doctrine was based upon twofold rationale which provides in pertinent part as follows:
a. The injustice, particularly in the absence of bad faith, of subjecting to liability, an officer, who is required, by the legal obligations of his position, to exercise discretion;
b. The danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment required for the public good. Wenpz v. Klecker, 721 F.2d 244, 247 (8th Cir. 1983). Scheuer v. Rhodes, 416 U.S. 232, 241-42 (1974). An officer may not be held liable if, at the time he committed the act giving rise to the suit, no reasonable person in his position would have realized that his conduct violated clearly established federal law. Harlow v. Fitzgerald, 457 U.S. 800 (1982). "To provide its fullest and best use, qualified immunity ideally is addressed by summary judgment ...." Rellegert v. Cape Girardeau County, Mo., 924 F.2d 794 (8th Cir.
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1991). This qualified immunity "gives ample room for mistaken judgments but does not protect the plainly incompetent or those who knowingly violate the law." Ludwig v. Anderson, 54 F.3d 465 (8th Cir. 1995) (quoting Malley v. Briggs, 745 U.S. 335, 341 (1986)). In deciding whether an official is protected by qualified immunity the court will determine "whether the official's action was objectively legally reasonable in light of the legal rules that were clearly established at the time the action accrued." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).
ADC Defendants Larry Norris and Max Mobley are not alleged to have violated any written policies. They are accused of not having issued “proper” policies. They are entitled to the protection afforded by qualified immunity because there is absolutely no evidence in this case that they did not comply with all applicable laws. They acted "objectively reasonable" in their positions. Their actions did not violate Plaintiff’s clearly established statutory or constitutional rights.
With regard to ADC Defendant Patricia Turensky, while Plaintiff’s Complaint alleges she did not comply with the ADC policies, Plaintiff’s own deposition testimony contradicts her pleadings. Plaintiff clearly testified that when asked to remove the restraints by hospital personnel, Defendant Turensky complied. Defendant Turensky is entitled to the protection afforded by qualified immunity because there is absolutely no evidence in this case that she did not comply with all applicable laws. She acted "objectively reasonable" in their positions. Her actions did not violate Plaintiff’s clearly established statutory or constitutional rights.
When reviewing a qualified immunity argument and testing whether the law was “clearly established”, the Court must not be “too generalized” otherwise it would be
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difficult to determine the “objective legal reasonableness” standard. Mahers v. Harmer, 12 F.3d 783 (8th Cir. 1993) citing Anderson v. Creighton, 483 U.S. 635, 639 (1987). In other words, the test must be applied to the specific facts of the case, i.e. whether Plaintiff had a clearly established right not to be shackled to the hospital bed upon arrival to the hospital. The answer to this question is NO. For these reasons, Plaintiff’s Complaint should be dismissed.
CONCLUSION ADC Defendants dispute Plaintiff’s allegations that they were deliberately indifferent to Plaintiff’s health and safety. Plaintiff is unable to meet her burden of establishing a prima facie case; therefore, ADC Defendants are entitled to a dismissal of the claims against them. In addition, Plaintiff has failed to properly exhaust her administrative remedies as to each of the named defendants as required under the Prison Litigation Reform Act, 42 U.S.C. § 1997(e). For these reasons, Plaintiff’s Complaint should be dismissed in its entirety.
Respectfully submitted, MIKE BEEBE Attorney General By: /s/ Christine A. Boozer Arkansas Bar No. 2001082 Assistant Attorney General Attorney for ADC Defendants 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 683-0958 Fax: (501) 682-2591 christine.boozer@arkansasag.gov
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CERTIFICATE OF SERVICE

I, Christine A. Boozer, Assistant Attorney General, do hereby certify that on this 22nd day of November, 2006, I electronically filed the forgoing with the Clerk of the
Court using the CM/ECF system. Notification will be sent electronically to the following
CM/ECF participants:

Ms. Cathleen V. Compton vselle@swbell.net

Mr. Alan Humphries

ahumphrieshl@sbcglobal.net

By: /s/ Christine A. Boozer Arkansas Bar No. 2001082 Assistant Attorney General Attorney for ADC Defendants 323 Center Street, Suite 1100 Little Rock, Arkansas 72201 (501) 683-0958 Fax: (501) 682-2591 christine.boozer@arkansasag.gov

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 Case 1:04-cv-00037-JMM Document 64 Filed 01/04/07 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

SHAWANNA NELSON

PLAINTIFF

VS.

NO. 1:04CV00037

CORRECTIONAL MEDICAL SERVICES et al

DEFENDANTS

CONSOLIDATED BRIEF IN SUPPORT OF RESPONSES TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
INTRODUCTION The Arkansas Department of Corrections Defendants (“ADC”) and Correctional Medical Services (“CMS”) have each filed motions for summary judgment. The issues raised include respondeant superior, qualified immunity, failure to exhaust administrative remedies, and Eight Amendment violations by the defendants against Shawanna Nelson, the Plaintiff. Each is addressed below.
I. LEGAL STANDARD FOR SUMMARY JUDGMENT
Motions for Summary Judgment are controlled by Fed.R.Civ.P. 56(c). To successfully oppose a motion for summary judgment, the nonmoving party must present evidence of a genuine dispute of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The nonmoving party must present admissible evidence from which a reasonable jury could return a verdict in its favor. This requires more than a scintilla of evidence, and there must be specific facts set forth showing that there is a genuine issue for trial. Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371 (8th Cir. 1995). In this case, there are fact issues to be decided, and upon which reasonable minds could differ. Courts must not deprive juries from their role in deciding genuine

Case 1:04-cv-00037-JMM Document 64 Filed 01/04/07 Page 2 of 8
disputes of material fact. Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th Cir. 1988). There are several disputes of material fact upon which reasonable minds could differ in the present case.
II. EIGHTH AMENDMENT VIOLATIONS: CRUEL AND UNUSUAL PUNISHMENT; DELIBERATE INDIFFERENCE
No fetal monitor was used by CMS at Arkansas Department of Correction. Mary Matthews (“MM”) Deposition. p.15. Nurse Matthews, who worked at the medical unit of the McPherson Womens Unit of the ADC, had no special training in the monitoring of pregnant patients. MM p. 9. No doctor examined Plaintiff when she presented to the medical unit in labor. MM p. 10. Nurse Matthews measured Plaintiff’s contractions only by placing her hand on Plaintiff’s stomach. MM p. 12. The unit was equipped with no special equipment for checking pregnant women. MM. p.14,15. She does not know how often she checked Shawanna Nelson during the time Ms. Nelson was at the unit. MM p.16. Ms. Nelson had arrived at the medical unit around noon. MM p.15.
Ms. Nelson was an extremely quiet, very nice pregnant inmate. Hazel Dee Smith Deposition (“HDS”) p. 7. Her contractions went quickly to five minutes apart or less. HDS p. 8. Nurse Smith was hollering to people at the sally port to get the Plaintiff out of the prison and to the hospital quickly. HDS p. 9. Plaintiff was hurting. HDS p. 10. From the medical unit to the sally port (approximately three quarters of a football field), Nurse Smith had to stop walking with plaintiff and “go the wall” for her to have a contraction. This happened at least twice. HDS. Pp. 11-12. Nurse Smith cannot check a pregnant inmate for the progression of her labor in any way other than to physically touch her stomach and to time contractions with a

Case 1:04-cv-00037-JMM Document 64 Filed 01/04/07 Page 3 of 8
watch - not a stopwatch. HDS p. 12. No pelvic examination is done on pregnant women at the unit. There is no fetal monitor at the unit. HDS p. 14.
Patricia Turensky (“PT”) is an employee of the ADC. PT p. 5. She is a guard with no medical training and no special training in childbirth and delivery. PT p. 8. In fact, while Plaintiff was obviously pregnant, PT. P 15, Officer Turensky claims not to have known why she was taking Plaintiff from the prison to the hospital. PT p. 14 - 16. She took handcuffs and leg restraints with her because it is ADC policy, and she had been told to do so by Officer Linda Dixon. PT p. 17. She had no knowledge of the crimes for which Plaintiff was serving her time PT pp. 17-18, nor any knowledge or concern that Plaintiff was a flight risk. PT p. 21. (Ms. Nelson was in prison for the nonviolent crimes of credit card fraud and hot check violations). Shawanna Nelson Deposition (“SN”) p. 8).
Officer Turensky has doubts that Ms. Nelson posed any flight risk. Her common sense tells her not to shackle a pregnant inmate, and she never felt threatened by Ms. Nelson. PT p. 26. Ms. Nelson was not belligerent or physical with her. PT p. 27. She used the restraints on Ms. Nelson because it was ADC policy, and she did not want to be written up. PT p. 24. Even though she has to abide by ADC policy, she does not believe it is a good policy. After inmates have babies, they will be shackled again, and that is bothersome to her. The shackles are not even sanitary. PT pp. 42-43.
Ms. Nelson knew when she went into labor, having given birth once before, in 1993. SN p.9. That delivery was uncomplicated, and her labor lasted about three hours. SN p. 10. On September 20, 2003, she went into labor, and she knew it. SN p. 20. She tried to report for her work assignment, but could not work due to her pain. SN 19. When finally she arrived at the

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medical unit (about noon, MM p. 15), the nurses checked her vital signs, then she was left alone for the most part. SN pp. 23-24.
Her contractions were not timed. SN p.29. Her labor was very intense. SN p.35. Her trip to the hospital took 10-15 minutes. Upon her arrival at the hospital, she was already dilated to a 7. SN p. 37. She was handcuffed, and her legs were restrained by shackles to the bedposts. SN p. 39-41. She would temporarily be uncuffed and unshackled for the checking of her vital signs. The leg shackles were removed only in the delivery room, but they were replaced after delivery. SN pp. 44-45. Never was she given any pain medicine. SN pp. 47-49. She suffered, in addition to her humiliation as described in her grievances, an umbilical hernia from straining to deliver her large baby, and an injury to her hips. SN pp. 55-63.
It is inherently dangerous to both the mother and the fetus for a woman to experience the final stages of labor in shackles, for several medical reasons. (See attached Affidavit of Dr. Cynthia Frazier, M.D.). The ADC’s policy, as implemented and followed by both ADC and CMS, was inherently dangerous to Ms. Nelson and to her unborn baby. (See Affidavit of Dr. Cynthia Frazier).
III. RESPONDEAT SUPERIOR, IMMUNITY, AND FAILURE TO EXHAUST ISSUES These issues have been previously raised by the Defendants, and previously ruled upon in
Plaintiff’s favor. On January 14, 2005, the Magistrate Judge issued his Proposed Findings and Recommended Partial Disposition, ruling in Plaintiff’s favor. No objections were made to those findings, and they were adopted by this Court on January 31, 2005. On January 4, 2006, the Magistrate Judge addressed these issues again, and again ruled in Plaintiff’s favor. No objections

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were made to those findings, and they were adopted by this Court on January 20, 2006. Each set of findings and each order is attached, and incorporated here as if set forth word for word.
These issues have now been settled in Plaintiff’s favor by The Law of the Case Doctrine. The law of the case doctrine dictates that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Kinman v. Omaha Pub. Sch. Dist., 171 F.3d 607, 610 (8th Cir. 1999) (citing Republican Party of Minnesota v. White, 361 F.3d 1035 (8th Cir. 03/16/2004)
Additionally, since those findings were made and adopted without objection by this Court, discovery in this case has developed further proof that both CMS and the ADC Defendants are liable for Ms. Nelson’s damage.
The ADC contracts with CMS for its medical services. Portions of that contract are attached to this brief. Among other things, CMS must deliver services that comply with the law. (Health Services Agreement (“HSA”) p. 7. When CMS wants to implement something new, it must submit a plan to the ADC for prior approval. HSA p.13. ADC has some supervisory control over CMS employees. HSA p.25.
ADC has the power to change the scope of the contract. HSA. p. 37. It is the ADC who has final authority on any unresolved issues between ADC and CMS. CMS shall report to ADC. HSA. p. 46. Changes proposed by CMS must be reviewed and approved by ADC’s Administrator of Medical Services and its lawyer. HSA. p. 47. The relationship between the two Defendants is an incredibly intertwined one, and neither can divorce itself from the other concerning policies relative to ADC inmates.

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Max Mobley is now retired from the ADC. At the time of Ms. Nelson’s delivery of her son in September of 2003, he was the Department’s Deputy Director of Health and Correctional Services which included medical services. (“MM”) p.6. He is not, however, a medical doctor. Max Mobley Deposition (“MM”) p.7. He has no training in labor and delivery. MM. P.14. He does not know what the “final stages of labor” are. MM.p.20.
The connection between the ADC and CMS is described by Dr. Mobley as financially motivated. (“MM”) p. 21 -22. ADC has oversight over CMS, and if CMS does not comply with ADC policies, the contract can be terminated. MM depo p.20.
Larry Norris is the Director of the Arkansas Department of Corrections. (Larry Norris’ Deposition, (“LN”) p.4. The restraint policies that were in effect when Ms. Nelson delivered her baby occurred on his watch LN dep p.12. Nobody in his crew is a medical doctor LN depo p.7.
CONCLUSIONS There are multiple issues upon which reasonable minds could differ in this matter. The case should not be dismissed against anybody for Plaintiff’s Eighth Amendment violations. Even an officer of the ADC charged with the implementation of its restraint policies finds them wrong and unsanitary. No medical doctor was in charge of the policies or of their implementation. They are medically dangerous to both the pregnant inmate and to her baby. The issues of failure to exhaust administrative remedies and of respondeat superior have been previously decided in Plaintiff’s favor, and are the law of the case. The motions for summary judgment are not proper under the facts of this case or of the law which controls summary judgment, and should be denied in their entirety.

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Respectfully Submitted, /s/ Cathleen Compton Catheen V. Compton, 85031 DUDLEY & COMPTON 114 S. Pulaski Street Little Rock, AR 72201 (501) 372-0080 cathi.compton@sbcglobal.net
CERTIFICATE OF SERVICE I certify that a copy of the foregoing pleading has been mailed this 4th day of January, 2007 , to Christine Boozer, Assistant Attorney General, 323 Center Street, Suite 1100, Little Rock, AR., 72201, and Alan Humphries, Humphries & Lewis, P.O. Box 9068, Pine Bluff, AR 71611.
/s/ Cathleen Compton Cathleen V. Compton

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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2481 ___________

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 *

Appeal from the United States District Court for the Eastern District of Arkansas.

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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. *

___________

Submitted: September 24, 2008 Filed: October 2, 2009 ___________

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

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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
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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
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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
1Dilation refers to the opening of the cervix and is measured in centimeters, from 1 to 10. Mayo Clinic Complete Book of Pregnancy & Baby's First Year 279 (Robert V. Johnson ed., 1994). The active labor phase begins when the cervix is dilated 4 centimeters and the final phase begins when the cervix is dilated 7 to 8 centimeters. See Beverly F. Gorvine et al., Health Care of Women: Labor & Delivery 22-25 (Wadsworth 1982). Nelson alleges that she was 100% effaced when she arrived in the maternity ward, meaning that her cervix was already thinned and ready for vaginal delivery. Cf. Mayo Clinic Complete Book of Pregnancy & Baby's First Year, supra, at 278.
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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.
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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 security concerns appeared to conflict with an inmate's medical needs, transportation officers were required to contact superiors "immediately" for guidance. Id.
Nelson brought § 1983 claims against Norris and Turensky, alleging violations of the Eighth Amendment and seeking compensatory and punitive damages. Nelson claimed that, (1) Turensky subjected her to cruel and unusual punishment by shackling her legs to a hospital bed while she was in the final stages of labor, and (2) Norris failed to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor.3 Norris and Turensky moved for summary judgment based on qualified immunity, arguing
2The dissent cites a Yahoo! News article reporting that New York has now joined other states which have statutes restricting the use of shackles on prisoners going through labor. Accompanying that news was a comment by the governor that "[a] woman giving birth to a child is hardly the first person that is going to be thinking of trying to escape or create any kind of problem." Cristian Salazar, N.Y. May Ban Shackling Pregnant Inmates, Boston Globe, Aug. 26, 2009, at 4.
3Nelson brought additional claims against Norris and Turensky (and several other defendants, including Correctional Medical Services and Dr. Max Mobley) but they were dismissed by the district court and are not at issue on appeal.
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their actions did not violate any of Nelson’s clearly established constitutional rights. After the district court examined the record, it concluded that a jury could find that a reasonable official "would have known that shackling [Nelson's] legs to a bed post while she was in labor, without regard to whether she posed a security or flight risk, violated her Eighth Amendment rights." It therefore denied Turensky and Norris's motion for qualified immunity. After a panel of this court reversed the district court, we granted Nelson’s petition for rehearing en banc and vacated the panel opinion.
II.
Qualified immunity may protect government officials from liability under 42 U.S.C. § 1983, but not if their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quotation omitted). In addition to protection from liability, “[q]ualified immunity is an entitlement not to stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200 (2001) (quotation omitted).
We review de novo the district court's denial of a motion for summary judgment on the basis of qualified immunity. Plemmons v. Roberts, 439 F.3d 818, 822 (8th Cir. 2006). In doing so we grant the nonmoving party "the benefit of all relevant inferences." Id. (quotation omitted). "[I]f there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment." Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001) (quoting Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999)). At this stage we are prohibited from weighing evidence or making credibility determinations. Id. at 634.
In analyzing the officials' claim of qualified immunity we consider two questions: (1) "whether the facts that a plaintiff has alleged or shown," when
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viewed in the light most favorable to Nelson, support a finding that the conduct of Turensky or Norris violated a constitutional right, and (2) whether that constitutional right was "clearly established" in September 2003 such that a reasonable official would have known that his or her actions were unlawful. See Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009) (citations omitted); see also Saucier, 533 U.S. at 201. Qualified immunity is appropriate only if no reasonable factfinder could answer yes to both of these questions. See Plemmons, 439 F.3d at 822.
Until recently, our analysis of qualified immunity was constrained by the two step sequence set forth in Saucier, which required us to ask first whether “the facts alleged show the officer’s conduct violated a constitutional right.” 533 U.S. at 201. Under Saucier, only if the allegations and any evidence, when viewed in a light favorable to the nonmoving party, established a constitutional violation were we permitted to ask “whether the right was clearly established at the time of the deprivation . . . .” Id. at 201. In Pearson, 129 S. Ct. at 818, the Supreme Court held that “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory,” and courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” We conclude that it is appropriate in this case to start with the question of whether the allegations and evidence, when considered in Nelson's favor, establish any constitutional violation.
A. Officer Turensky
1.
The Eighth Amendment "prohibits the infliction of cruel and unusual punishments on those convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 29697 (1991) (quotation omitted). In order to make out an Eighth Amendment
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violation "the offending conduct must be wanton." Id. at 302 (emphasis in the original). The word "wanton[] does not have a fixed meaning" and its meaning in the Eighth Amendment context depends upon the circumstances in which the alleged violation occurs. Id. In cases involving prison riots, for example, wantonness is demonstrated by acting "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quotation omitted). The Eighth Amendment standard for conditions of confinement and medical care such as those raised here is different, and the constitutional question in this case is whether Turensky acted with "deliberate indifference." See Wilson, 501 U.S. at 303 (quotation omitted).
A prison official is deliberately indifferent if she "knows of and disregards" a serious medical need or a substantial risk to an inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). A claim of deliberate indifference has both an objective and a subjective component. See id. at 838-39. Thus, the relevant questions here are: (1) whether Nelson had a serious medical need or whether a substantial risk to her health or safety existed, and (2) whether Officer Turensky had knowledge of such serious medical need or substantial risk to Nelson's health or safety but nevertheless disregarded it. See id. at 842.
Nelson's expert, Dr. Cynthia Frazier, testified by affidavit "to a reasonable degree of medical certainty, that [shackling] is inherently dangerous to both the mother and the unborn fetus" and that it may interfere with the response required "to avoid potentially life-threatening emergencies for both the mother and the unborn fetus." A factfinder could determine from the record evidence that Turensky disregarded the risks to Nelson by shackling her while she was in the final stages of labor and by keeping her in shackles (except for intervening medical exams) until shortly before her baby was born.
To establish an Eighth Amendment violation Nelson need not show that Turensky actually believed that shackling her during labor would harm her, for "it
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is enough that the official acted or failed to act despite [her] knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842. Whether or not Officer Turensky knew that shackling presented a substantial risk to Nelson "is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. (citation omitted). That Turensky lacked medical training, that the hospital staff did not explicitly forbid the use of shackles, or that Nelson did not expressly state how painful and uncomfortable they were, is thus inconclusive (although at trial it "remains open to the official[] to prove that [she was] unaware even of an obvious risk to [Nelson's] health or safety," id. at 844).
A reasonable factfinder could determine that there is substantial evidence of Turensky's own general awareness of the risk of harm from shackling a woman in labor. During her deposition Turensky admitted that, "[i]f you've got a very old sickly woman who's had three or four strokes, of course you don't want to put shackles on that inmate. That is just common sense. I do the same thing with pregnant inmates. I would not shackle a pregnant inmate." (emphasis supplied). When asked what it is about shackling pregnant inmates that bothered her, Turensky responded, "It's not in policy – if it were in policy, I would have to tell them that there's something wrong with the policy . . . ."4 (emphasis supplied). Turensky also appeared troubled by the fact that "you just cannot examine anyone with shackles on. They're not very sanitary." (emphasis supplied). Finally, Turensky admitted that she "imagine[d] they hurt the ankles when you're lying in bed." (emphasis supplied).
4Turensky later stated that she shackled Nelson despite her own reservations because she understood it to be required, but her earlier statement that shackling "i[s] not in policy" belies that contention. Summary judgment is inappropriate where the record contains conflicting facts relevant to the issue of qualified immunity. Tlamka, 244 F.3d at 632.
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Officer Turensky was also put on notice that her actions could interfere with required medical care and aggravate Nelson's already considerable pain and suffering. She had been present when Nelson was forced by powerful contractions to brace herself against the prison wall and when Nurse Smith shouted to officials in the sally port that Nelson had to be taken to the hospital as soon as possible. Turensky was instructed by a prison official to "RUSH" Nelson to the hospital and "to NOT to [sic] take time for cuffs." She was present at the sally port when Nelson required a nurse's assistance and in the maternity ward when Nelson requested an epidural. Turensky noted in her log that Nelson was feeling sick, and she was present while two nurses had to help Nelson push her baby along the birth canal. She was repeatedly required to remove Nelson's shackles so medical personnel could examine her. Turensky was informed by a nurse in the maternity ward that she wished that Nelson was not being restrained by shackles.
There is no contradictory evidence suggesting that Turensky's decisions to place the shackles on Nelson initially and to reshackle her after each medical examination were made in reliance on the judgment of medical personnel. No medical personnel ever requested that Nelson be shackled or requested their reapplication following an examination. Indeed, repeated requests to unshackle Nelson to permit medical examinations and at least one explicit expression of dissatisfaction with the shackling (nurse who "wished" Nelson might remain unshackled) are evidence of a medical judgment that Nelson should not have been shackled at all while in the final stages of labor. Moreover, there is nothing in the record to indicate that any medical personnel other than Dr. Hergenroeder believed they could demand that the shackles be set aside. On the contrary, the fact that Turensky continued to reshackle Nelson after one nurse expressed her wish that Nelson not be shackled could have reasonably led other medical personnel to believe that Turensky would not be influenced by their wishes.
From all this evidence a factfinder could draw the inference that Turensky recognized that the shackles interfered with Nelson's medical care, could be an
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obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee because of the pain she was undergoing and the powerful contractions she was experiencing as her body worked to give birth. See Heidi Murkoff et al., What to Expect When You're Expecting 364-67 (3d ed. 2002) (pain, nausea, vomiting, exhaustion, oxygen deprivation, and inability to walk are incident to final stages of labor).5
While "deliberate indifference to a prisoner's serious illness or injury can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff," Whitley, 475 U.S. at 320, from the record evidence in Nelson's case there does not even appear to have been a competing penological interest in shackling her, see, e.g., Hope, 536 U.S. at 738 ("Despite the clear lack of an emergency situation, the respondents knowingly subjected [petitioner] to a substantial risk of physical harm . . . ."). According to Turensky's own testimony, Nelson was not threatening or belligerent at any point. Turensky responded "[n]o" when asked whether Nelson "sa[id] or d[id] anything that made [her] think she was an escape risk." Nurse Smith testified that Nelson was "[e]xtremely quiet, very nice, never caused any problems. I never had any trouble with her." Moreover, according to Turensky's own notes, Nelson required the assistance of medical staff to push her unborn child along the birth canal, to
5A factfinder could also determine Turensky was aware of the risks involved because they were obvious. See Farmer, 511 U.S. at 842 ("a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious"). That labor is inherently risky is well known. Cf. Vaughn v. Gray, 557 F.3d 904, 906-10 (8th Cir. 2009) (risk of heart attack obvious where overweight man vomited several hours after consuming shampoo). Each year approximately 530,000 women die during childbirth, World Health Organization, Maternal Mortality in 2000 (2004), and the hazards associated with labor and childbirth have entered the collective consciousness having been frequently portrayed in popular media such as the all time favorite Gone With The Wind.
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complete the process of separation of mother and child that is birth. Turensky also recorded in her log that Nelson became ill during the course of labor.
A reasonable factfinder could determine from the record evidence that Nelson did not present a flight risk while under the supervision of Turensky, an experienced correctional officer who was equipped with a fire arm. Turensky's statement during discovery that she had "doubts" and was "a tad nervous" because Nelson "was talking about how she should not be considered an inmate because she was in the free world in a free-world hospital" does not compel a different conclusion. A factfinder viewing that statement in the light most favorable to Nelson, as it be must on summary judgment, Plemmons, 439 F.3d at 822, could very well interpret it as Nelson's expressed wish to be able to give birth in the normal manner without being shackled to the bed. Moreover, summary judgment is prohibited where there are contradictory facts relevant to the issue of qualified immunity. Tlamka, 244 F.3d at 632.
2.
Having determined that there is sufficient evidence in the record to permit a reasonable factfinder to determine that Turensky's actions violated the Eighth Amendment, the question remains whether such a constitutional right was clearly established in September 2003. A constitutional right is clearly established if its contours are "sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful . . . ." Hope, 536 U.S. at 739 (quotation omitted). The Supreme Court "has made it clear that there need not be a case with 'materially' or 'fundamentally' similar facts in order for a reasonable person to know that his or her conduct would violate the constitution." Young v. Selk, 508 F.3d 868, 875 (8th Cir. 2007) (quoting Hope, 536 U.S. at 741). Instead, the unlawfulness must merely be apparent in light of preexisting law. Hope, 536 U.S. at 739, and officials
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"can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741.
Notice of constitutionally impermissible conduct may be provided by the Constitution itself or the decisions of the United States Supreme Court and the lower federal courts. See Hope, 536 U.S. at 741-42. "Prison regulations governing the conduct of correctional officers are also relevant in determining whether an inmate's right was clearly established." Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002). A review of these sources confirms that the constitutional right asserted by Nelson was clearly established in September 2003.
The Eighth Amendment prohibits "cruel and unusual punishments," U.S. Const. amend. VIII, and well before September 20, 2003 the Supreme Court and the lower federal courts had concluded that the Amendment forbids actions like those taken by Turensky in shackling Nelson. In 2002, the Supreme Court provided guidance to officials on the constitutional limits in restraining prisoners in a § 1983 action brought by an inmate alleging that his Eighth Amendment rights had been violated by officials responsible for handcuffing him to a prison hitching post. Hope, 536 U.S. at 733-35. The Court determined that defendant prison officials had acted with deliberate indifference to the inmate's health and safety in violation of the Eighth Amendment by restraining him "[d]espite the clear lack of an emergency situation" in a manner "that created a risk of particular discomfort and humiliation." Id. at 737-38. A reasonable factfinder could determine from the record in this case that Officer Turensky, like the Hope officials, was not facing an emergency situation but nevertheless "subjected [Nelson] to a substantial risk of physical harm, to the unnecessary pain caused by the [shackles] and the restricted position of confinement . . . [and] created a risk of particular discomfort and humiliation." See id. at 738.6
6The dissent would avoid the rule of Hope by distinguishing its facts and contending that Nelson "was not being punished, was not made to suffer unnecessarily
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The general responsibilities of state officers with regard to an inmate's medical needs were also clearly established before September 2003. In 1976 the Supreme Court had decided Estelle v. Gamble, 429 U.S. 97 (1976), a leading case in the development of Eighth Amendment law. Estelle was a § 1983 action brought against prison officials for providing an inmate inadequate medical care. Id. at 98. The Court concluded that either interference with care or infliction of "unnecessary suffering" establishes deliberate indifference in medical care cases in violation of the Eighth Amendment. Id. at 103-05. Whether an official such as Turensky interfered with Nelson's medical care or inflicted unnecessary suffering on her is a question squarely raised by the evidence in the record before this court. See, e.g., Farmer, 511 U.S. at 842 (official violates Eighth Amendment in condition of confinement cases where he "act[s] or fail[s] to act despite his knowledge of a substantial risk of serious harm"); Tlamka, 244 F.3d at 633 (Eighth Amendment violated in medical care cases where official disregards "obvious" risk to inmate); Coleman v. Rahija, 114 F.3d 778, at 786 (8th Cir. 1997) (official violates pregnant inmate's Eighth Amendment rights when she fails to act in the face of an "obvious[]" risk of harm).
Moreover, the precise issue under consideration here was decided years ago by a federal district court in the District of Columbia. In 1994 that court held that "[w]hile a woman is in labor . . . shackling is inhumane" and violates her constitutional rights. Women Prisoners of D.C. Dep't of Corr. v. District of
and wantonly, and was not deprived of basic necessities of life." Infra at 29. The Eighth Amendment is not limited to disciplinary cases, however, and whether Nelson was "made to suffer unnecessarily and wantonly" is a question for the factfinder. Here, the key constitutional issue is whether Nelson posed a security risk sufficient to justify being shackled to both sides of the bed while she labored to deliver her baby. Viewing the facts in the light most favorable to Nelson, as must be done on summary judgment, her shackling may be found unnecessary and wanton.
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Columbia, 877 F. Supp. 634, 668-69 (D.D.C. 1994), modified in part on other grounds, 899 F. Supp. 659 (D.D.C. 1995). The court held defendant prison officials liable, explaining that a prison official who shackles a woman in labor acts with "deliberate indifference . . . since the risk of injury to women prisoners is obvious." Id. at 669. The court found it significant that one prison official had shackled a pregnant inmate even though he himself later stated "that he would not shackle a third trimester woman," from which the court concluded "that he recognize[d] the risk." Id. Turensky's similar admission could also be found to show that she applied the leg restraints on Nelson despite recognizing the risks involved in shackling her during labor. These constitutional holdings in Women Prisoners were never appealed and they remained in effect at the time Nelson went into labor. See Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).
Although an Eighth Amendment claimant need not identify a factually identical case to satisfy the "clearly established" requirement, see Hope, 536 U.S. at 739 (quoting Anderson, 483 U.S. at 640), it is beyond question here that a federal court had found constitutional violations on essentially the same facts some seven years earlier in a widely reported decision. The value of that precedent was supported by the government's decision not to contest these constitutional holdings in its appeal to the D.C. Circuit, and the circuit court expressed no concern about them in its review of the record. Women Prisoners, 93 F.3d at 918.
Nelson's protections from being shackled during labor had thus been clearly established by decisions of the Supreme Court and the lower federal courts before September 2003. The ADC administrative regulations in effect also reflected the constitutional protections recognized in these judicial decisions.7 Regulation 403,
7 In Haslar v. Megerman, 104 F.3d 178 (8th Cir. 1997), upon which the dissent relies heavily, the constitutional issue was whether a shackling policy violated the Eighth Amendment. Here, we agree with the dissent that the challenged policies are
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for example, prescribed restraints "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) (emphasis supplied). In addition, Administrative Directive 95:21 required a transportation officer taking an inmate to a hospital for a medical emergency such as childbirth to "use good judgment in balancing security concerns with the wishes of treatment staff and the medicine needs of the inmate." Ark. Dep't of Corr. Admin. Dir. 95:21 § IV(B)(4)(c) (1995) (emphasis supplied). If security concerns could conflict with an inmate's medical needs, transportation officers were required to seek guidance from their superiors. Id. Nothing in the ADC's regulation or directive suggested that officials were required to shackle pregnant inmates who were in the final stages of labor in a civilian hospital.8
Since these rules were in effect when Turensky was hired, trained, and retrained and remained in effect when she accompanied Nelson to the hospital, her knowledge of them is presumed and they applied to her decisions and actions in September 2003. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982) ("a reasonably competent public official should know the law governing his conduct"). In addition to this presumption of knowledge, the record indicates that Turensky had actual knowledge that any competing interests must be balanced. As she explained, "[i]f you've got a very sickly old woman who's had three or four strokes, of course you don't want to put shackles on that inmate. That is just common sense. I do the same thing with pregnant inmates."
constitutional. The question is whether Officer Turensky complied with them. The record shows that she did not.
8The dissent focuses on a new administrative order providing that inmates in the delivery room should not be shackled. Ark. Dep't of Corr. Hosp. Sec. Post Order § (III)(A)(3) (2003). Since the focus of Nelson's constitutional challenge is on the period before she was taken to the delivery room, Administrative Regulation 403 and Directive 95:21 were the regulations applicable to Turensky's conduct.
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The record suggests that a factfinder could determine that Turensky entirely disregarded her duty to balance these competing concerns. A fair reading of the record, including Turensky's testimony, establishes that Nelson did not present a flight risk or other security concern and that at least one medical professional considered the shackles to be an interference with her medical needs. Moreover, Turensky's own testimony indicates that she was aware that shackling a woman in labor was hazardous and contrary to medical needs. There is no evidence that she utilized any of this information to "balanc[e] security concerns with the wishes of treatment staff and the medicine needs of the inmate" as required by prison regulations. See Ark. Dep't of Corr. Admin. Dir. 95:21 § IV(B)(4)(c) (1995). Nor is there any evidence that she contacted her superiors for guidance. See id.
Existing constitutional protections, as developed by the Supreme Court and the lower federal courts and evidenced in ADC regulations, would have made it sufficiently clear to a reasonable officer in September 2003 that an inmate in the final stages of labor cannot be shackled absent clear evidence that she is a security or flight risk. Indeed, "[t]he obvious cruelty inherent in this practice should have provided [Turensky] with some notice that [her] alleged conduct violated [Nelson's] constitutional protection against cruel and unusual punishment. [Nelson] was treated in a way antithetical to human dignity . . . and under circumstances that were both degrading and dangerous." Hope, 536 U.S. at 745. For these reasons, the district court did not err in concluding that the constitutional rights asserted by Nelson were clearly established at the time.
Our obligation at this stage of the case is not to resolve the ultimate issue of whether Shawanna Nelson can prevail on her § 1983 claims against Officer Turensky. Our task is only to examine the record before the district court to determine whether it erred in denying the officer qualified immunity under the relevant summary judgment standard. See Plemmons, 439 F.3d at 822. Since Nelson produced sufficient evidence to demonstrate that Officer Turensky violated her clearly established Eighth Amendment rights by shackling her during labor,
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"the basic concept underlying the Eighth Amendment [being] nothing less than the dignity of [wo]man," Hope, 536 U.S. at 738 (quotation omitted), the judgment of the district court denying Officer Turensky qualified immunity is affirmed.
B. Director Norris
Nelson claims that Director Norris violated her Eighth Amendment rights by failing to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor.9 In a § 1983 case an official “is only liable for his . . . own misconduct” and is not “accountable for the misdeeds of [his] agents” under a theory such as respondeat superior or supervisor liability. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948-49 (2009). Norris is thus liable only if he personally displayed deliberate indifference to the hazards and pain resulting from shackling an inmate such as Nelson during the final stages of labor. Farmer, 511 U.S. at 842. Nelson does not contend, nor does the record reflect, that Norris had any personal involvement in Turensky's decision to keep Nelson restrained while she was in labor. Indeed, there is no evidence that Norris, who was responsible for managing a large state wide prison system, had any personal knowledge of Nelson or the medical care she was receiving.
9In her petition for rehearing en banc, Nelson focused only on her case against Turensky:
The narrow question raised in this petition for rehearing or rehearing en banc is whether Ms. Nelson is entitled to proceed to trial to prove her claim that Defendant Turensky violated the Eighth Amendment when she shackled Ms. Nelson during labor and post-partum recovery.
We must nevertheless address Norris's appeal from the district court order denying Norris summary judgment since the panel opinion has been vacated.
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On September 20, 2003, the ADC had in place regulations and directives relevant to inmates like Nelson (and on which corrections officers received annual training). For example, Administrative Regulation 403, which concerned the use of restraints, provided that shackles were to be used "only when circumstances required 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, which described the responsibilities of, and procedures to be used by, officers transporting inmates outside ADC facilities stipulated that "[t]ransportation officers are expected to use good judgment in balancing security concerns with the wishes of treatment staff and the medicine needs of the inmate.” Ark. Dep't of Corr. Admin. Dir. 95:21 § (IV)(B)(4)(c) (1995). The directive further indicated that where security concerns and medical needs appeared to conflict transportation officers were required to contact superiors for guidance. Id. While the directive did not specifically address the use of restraints on pregnant inmates, it recognized that in certain situations “removal of restraints is essential to provide adequate assessment or treatment” to the inmate. Id. at § (IV)(B)(4)(a). The regulation suggests a similar attention to the well being of inmates.
Also in place on September 20, 2003, was the ADC Newport Complex Hospital Security Post Order. The post order, which became effective on August 1, 2003, contained instructions for officers providing security to inmates in a hospital setting.10 The post order required officers to be familiar with the ADC restraint policy, and provided the following additional instructions for the use of restraints on pregnant inmates: “Pregnant inmates in the final stages of labor will
10Although the record does not contain any evidence indicating that Turensky's training had included the post order (it was only issued several weeks before Nelson gave birth), and that order did not govern before Nelson entered the delivery room, its existence is evidence of administrative attention to the health and safety of inmates.
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not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.” Ark. Dep't of Corr. Hosp. Sec. Post Order § (III)(A)(3)(2003). The focus of Nelson's constitutional challenge, however, is on the period before she was taken to the delivery room where she was attended by Dr. Hergenroeder.
The regulations, directives, and orders in the record suggest administrative concern for the health and safety of pregnant inmates. Without further allegation or evidence of deliberate indifference, Nelson’s Eighth Amendment claim against Norris must fail. We conclude therefore that the district court erred in denying summary judgment to Director Norris based upon qualified immunity.
III.
For the foregoing reasons the judgment of the district court denying summary judgment based on qualified immunity to Officer Turensky is affirmed but its judgment denying summary judgment based on qualified immunity to Director Norris is reversed. The case is remanded to the district court for entry of judgment in favor of Director Norris and for trial of the Eighth Amendment issues raised by Shawanna Nelson against Officer Turensky.
RILEY, Circuit Judge, with whom LOKEN, Chief Judge, and COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges, join, concurring in part and dissenting in part.
I agree with the majority’s conclusion in Part II.B that Director Norris is entitled to summary judgment based upon qualified immunity, but I respectfully dissent from Part II.A and Part III of the opinion, denying summary judgment to Officer Turensky.
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The majority exposes Officer Turensky, a female prison guard, to personal tort liability under the guise of an alleged Eighth Amendment violation. Officer Turensky’s duty was to deliver Nelson safely to a hospital and into the care of trained, professional medical personnel. She did that. Officer Turensky (1) complied, at all times, with the requests of the medical personnel, including removal of the restraints; (2) used restraints on Nelson because Officer Turensky believed she was required to do so as part of her job duties; and (3) acted in accordance with all relevant ADC policies and procedures. Even if the majority were correct that Nelson’s allegations against Officer Turensky could rise to a constitutional violation, under the circumstances of this case, a reasonable officer would not have had fair notice and understood Nelson had a clearly established constitutional right to be free from restraints.
I. No Clearly Established Right to be Free From Restraints As the majority correctly observes, in light of the Supreme Court’s decision
in Pearson v. Callahan, __ U.S. __, __, 129 S. Ct. 808, 818 (2009), courts are “permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first.” Because I believe the “clearly established” prong of the qualified immunity analysis is patently dispositive in this case, I shall primarily address and rely upon that prong.
We review the “clearly established” prong de novo. Elder v. Holloway, 510 U.S. 510, 516 (1994). Nelson bears the burden to show a right is clearly established. See Davis v. Scherer, 468 U.S. 183, 197 (1984); Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008).
In order to conclude that the right which Officer Turensky allegedly violated was clearly established on September 20, 2003, “[t]he contours of the right must be sufficiently clear that a reasonable official would [have understood] that what [she was] doing violate[d] that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). The majority opinion falls far short of demonstrating Nelson sufficiently
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bore her burden to prove a reasonable prison guard would have understood the restraint of Nelson violated a clearly established constitutional right.11
The United States Supreme Court has not addressed the constitutionality of the use of restraints on a pregnant inmate during labor, nor have any circuit courts, nor have any district courts in our circuit. Other than a single district court opinion from outside of our circuit, later vacated on various other grounds, no other court has considered the constitutionality of such a use of restraints. See Women Prisoners of D.C. Dep’t of Corr. v. Dist. of Colum., 877 F. Supp. 634 (D.D.C. 1994) (Women Prisoners I), modified in part on other grounds by 899 F. Supp. 659 (D.D.C. 1995), vacated in part and remanded, 93 F.3d 910 (D.C. Cir. 1996) (Women Prisoners II).
In Women Prisoners I, a class of women prisoners housed in District of Columbia (D.C.) corrections facilities challenged various practices and policies of the D.C. Department of Corrections, including the restraint policy for pregnant inmates during medical visits. The D.C. district court found that shackling a woman during labor “violate[d] contemporary standards of decency,” was “inhumane,” and violated the Eighth Amendment. Id. at 668. The D.C. district court discovered this constitutional right and its violation without citing any authority for its holding.
11The majority analyzes and includes portions of Officer Turensky’s deposition testimony in its discussion of the clearly established prong of the qualified immunity analysis. See ante at 17, 19. This discussion of Officer Turensky’s personal knowledge or awareness, and how Officer Turensky may balance that personal knowledge, is not helpful. With this prong of the qualified immunity analysis, we are concerned only with whether a reasonable officer would have understood his or her actions were violating a constitutional right. See Anderson, 483 U.S. at 640. The test is an objective one, not subjective as to Officer Turensky.
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The defendants appealed to the D.C. Circuit, and the D.C. Circuit vacated several portions of the district court opinion. See Women Prisoners II, 93 F.3d at 913. The defendants did not appeal the portion of the district court opinion discussing the restraint of pregnant inmates, and the D.C. Circuit had no occasion to consider that issue. See id. at 918.
Based upon this single vacated district court opinion, the majority proclaims Nelson had a clearly established constitutional right to be free from restraints during labor.12 Granted our court previously held we may look to decisions of other federal and state courts in considering whether a constitutional right is clearly established, see Turner v. Ark. Ins. Dep’t, 297 F.3d 751, 755 (8th Cir. 2002) (quoting Vaughn v. Ruoff, 253 F.3d 1124, 1129 (8th Cir. 2001)); however, one unchallenged portion of a vacated district court opinion from outside our circuit is not sufficient here to create a clearly established constitutional right. Other courts would agree. See Edens v. Kennedy, 112 F. App’x 870, 876 (4th Cir. 2004) (holding one nonprecedential case in Washington state did not make “clearly

12Without citation to the record or otherwise, the majority declares the D.C.

district court’s decision in Women Prisoners I, 877 F. Supp. 634, was “a widely

reported decision.” Regardless of whether the majority is correct that the decision was

widely reported, the decision certainly has not been widely accepted. I have not

discovered any courts in the last fifteen years which have accepted the reasoning of

the vacated Women Prisoners I decision, and as a recent news article explained, “The

use of restraints on pregnant prisoners, even after they go into labor, is widely

accepted throughout the United States,” and only six states now ban the practice of

restraining pregnant inmates during labor. New York Law Limits Shackling of

Pregnant Prisoners,Yahoo!® News, (Aug. 27, 2009) (available at

http://news.yahoo.com/s/afp/20090827/ts_alt_afp/usprisonsociety_20090827221449

(last accessed Sept. 18, 2009)). See also Amnesty International USA, Fact Sheet: Stop

Violence

Against

Women,

http://www.amnestyusa.org/violence-against-women/abuse-of-women-in-custody/f

act-sheet-shackling-of-pregnant-prisoners/page.do?id=1108308 (last accessed Sept.

18, 2009) (“Shackling of all prisoners, including pregnant prisoners, is policy in

federal prisons and the US Marshall [sic] Service and exists in most state prisons.”).

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established” law in West Virginia); Stump v. Gates, 986 F.2d 1429 (10th Cir. 1993) (unpublished) (“This court has stated that a single case from another circuit is not sufficient to clearly establish the law in this circuit.”); Lee v. Dugger, 902 F.2d 822, 824 (11th Cir. 1990) (“Here, only one case, decided by an intermediate appellate court, had construed the new statute, which falls short of the clarity of the law required to defeat a defense of qualified immunity.”); Soto v. Lord, 693 F. Supp. 8, 17 (S.D.N.Y. 1988) (similar). Cf. Wilson v. Layne, 526 U.S. 603, 617 (1999) (“Petitioners have not brought to our attention any cases of controlling authority in their jurisdiction at the time of the incident which clearly established the rule on which they seek to rely, nor have they identified a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.”). To hold otherwise severely undermines qualified immunity.
In an analogous case from our court, we concluded a “policy of shackling pre-trial detainees while they receive medical attention [did not] constitute[] . . . deliberate indifference to medical needs or a punishment.” Haslar v. Megerman, 104 F.3d 178, 180 (8th Cir. 1997) (internal citations omitted). In Haslar, a pretrial detainee was admitted to the hospital for renal failure. See id. at 179. Despite the fact the detainee was “virtually comatose” during the first few days of his hospital stay, officers shackled and chained his legs to the bed. Id. The detainee’s legs became severely swollen, and after the detainee regained consciousness, he and his mother repeatedly complained the shackles were too tight. Id. The officers did not check the restraints and did not request that a nurse examine the detainee’s legs. Id. The officers kept the detainee shackled during the entire hospital stay. Id. As a result, the detainee could not walk when he left the medical center and suffered permanent leg damage. Id.
Because the officers were not named defendants in Haslar, the court did not consider whether the officers’ personal conduct violated the detainee’s Eighth Amendment rights. See Haslar, 104 F.3d at 180. Nevertheless, Haslar
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demonstrates the “contours” of this new constitutional right discovered by the majority, the right of a female inmate to be free from restraints while in labor, was not sufficiently clear in our circuit such that a reasonable official would have had fair notice and understood restraining Nelson under the circumstances of this case rose to a constitutional violation. See Anderson, 483 U.S. at 640; Lindsey v. City of Orrick, Mo., 491 F.3d 892, 902 (8th Cir. 2007) (quoting Anderson).
In Haslar, our court declared, “Admitting pre-trial detainees to a hospital concretely demonstrates a deliberate concern for their medical well-being, and not an indifference.” Haslar, 104 F.3d at 180. The court also stated the policy of shackling pretrial detainees while they receive medical attention “serves the legitimate penological goal of preventing inmates awaiting trial from escaping [the hospital’s] less secure confines, and is not excessive given that goal.” Id. Finally, our court emphasized the fact that the restraint policy in Haslar contained safeguards in order to minimize potential harm to detainees. Id. The ADC policies in place on September 20, 2003, which Officer Turensky followed, also contained safeguards. Our precedent in Haslar supports the position that any constitutional right Nelson may have had to be free from restraints was not clearly established, and a reasonable officer in Officer Turensky’s position would not have understood it was a constitutional violation to restrain Nelson. Officer Turensky plainly did not have fair notice her conduct could be unconstitutional.
The majority also suggests Hope v. Pelzer, 536 U.S. 730 (2002), and Estelle v. Gamble, 429 U.S. 97 (1976), demonstrate Nelson had a clearly established constitutional right to be free from restraints during labor. In Hope, the Supreme Court concluded prison guards subjected a prisoner to cruel and unusual punishment when the guards handcuffed the prisoner to a hitching post on two occasions “to sanction him for disruptive behavior.” Hope, 536 U.S. at 733. On the first occasion, the prisoner got into an argument with another inmate while working on a chain gang, and the guards took the prisoner back to the prison and handcuffed him to a hitching post for two hours. See id. at 734. The prisoner’s
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arms were handcuffed to the hitching post above shoulder level, and “the handcuffs cut into his wrists, causing pain and discomfort.” Id. On the second occasion, the prisoner got into an altercation with a guard upon arrival at a chain gang worksite, and the prisoner was transported back to the prison and handcuffed to the hitching post for seven hours. See id. at 734-35. The guards made the prisoner take off his shirt, and his skin was sunburned. See id. The guards gave the prisoner water only once or twice over the seven-hour period, and the prisoner was not given any bathroom breaks. See id. at 735. According to the prisoner, “[The guard] first gave water to some dogs, then brought the water cooler closer to [the prisoner], removed its lid, and kicked the cooler over, spilling the water onto the ground.” Id.
In Hope, the prisoner was handcuffed to a hitching post, taunted, made to suffer unnecessarily and wantonly, and denied the basic necessities of life purely for punishment purposes. See id. at 738. Safety concerns had long passed. See id. Unlike Nelson’s case, Hope did not involve a balancing of security and inmate safety concerns when an inmate is taken outside the confines of the prison. See Haslar, 104 F.3d at 180 (“It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds.”). Nelson was not being punished, was not made to suffer unnecessarily and wantonly, and was not deprived of basic necessities of life. On the contrary, Nelson was in a hospital under the care of medical personnel. Hope cannot fairly be read to put a reasonable officer on notice that restraining a female inmate in a hospital bed during child labor, and removing the restraints when requested to do so by medical personnel, would be a constitutional violation.
The majority’s reliance on Estelle likewise is misplaced. Estelle does not address the use of restraints on prison inmates. Instead, the issue in Estelle was whether an inmate received constitutionally inadequate medical care following a prison work-related injury. Estelle, 429 U.S. at 98. The Supreme Court determined,
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[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain, proscribed by the Eighth Amendment. This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.
Id. at 104-05 (internal marks and citation omitted). There is no allegation, and nothing in the record to suggest, Officer Turensky interfered with Nelson’s medical care. Nelson concedes Officer Turensky complied with all requests of the medical personnel. Estelle provides no guidance to officers on the appropriate use of restraints on an inmate when transporting the inmate to a medical facility for the purpose of receiving medical care, and, thus, would not have put a reasonable officer on notice that restraining a female inmate in a hospital bed during labor was a violation of the inmate’s constitutional rights.
In its discussion of the clearly established prong of the qualified immunity analysis, the majority states that Officer Turensky is presumed to be aware of the law and the ADC policies and regulations in place on September 20, 2003. See ante at 19. The majority discusses Regulation 403 and Administrative Directive 95:21, but the majority misinterprets the impact of the Hospital Security Officer Post Order (Post Order), which was also in effect as of August 1, 2003. Post Order III.A.3 expressly addressed the restraint of pregnant inmates and is directly on point:
Pregnant inmates in the final stages of labor will not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.
(emphasis added). The majority maintains the Post Order is inapplicable because “the focus of Nelson’s constitutional challenge is on the period before she was
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taken to the delivery room,” and “[the Post Order] did not govern before Nelson entered the delivery room.” Ante at 18 n.8, 22 n.10. I disagree with the majority’s interpretation of the Post Order. The plain language of the Post Order declares the Post Order applied not only to labor in the delivery room, but also “at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate.”
Using the logic of the majority that Officer Turensky’s knowledge of the ADC regulations, directives, and orders “is presumed and they applied to [Officer Turensky’s] decisions and actions in September 2003,” ante at 19, Officer Turensky fully complied with the Post Order. Nelson conceded in her deposition testimony that when the obstetrician arrived, the obstetrician requested that Officer Turensky remove the restraints, and Officer Turensky did so. Whenever medical personnel requested removal of the restraints, Officer Turensky removed the restraints. Officer Turensky did her job according to ADC protocol. Officer Turensky acted without any notice or warning to indicate her conduct could violate Nelson’s constitutional right.
Even if Nelson’s allegations, taken in the light most favorable to Nelson, state a violation of Nelson’s constitutional right, that right was not clearly established such that a reasonable officer would have understood his or her actions violated the Constitution. Officer Turensky should not be made “to stand trial or face the other burdens of litigation.” See Saucier v. Katz, 533 U.S. 194, 200 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), abrogated on other grounds by Pearson, __ U.S. at __, 129 S. Ct. at 818.
II. Constitutional Violation? The focus of our constitutional violation inquiry is whether Officer
Turensky’s placement of Nelson’s legs in restraints attached to the handrail of the hospital bed while Nelson was in labor constitutes deliberate indifference to Nelson’s serious medical needs. Officer Turensky stated it was not her preference
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to use leg restraints on pregnant inmates, but she believed she was required to do so. During Officer Turensky’s deposition, Officer Turensky was asked about her decision to place Nelson in restraints while Nelson lay in the hospital bed. The following exchange occurred:
Q What made you decide at that particular time, Officer Turensky, to put the shackles on?
A Because if I don’t and the Warden shows up at the hospital – which she has done on occasion – she would write me up.
Officer Turensky also testified that while she did not feel threatened by Nelson, she had some concern regarding whether Nelson was a flight risk. Officer Turensky was asked, “At any time, did you feel that Ms. Nelson was a flight risk?” Officer Turensky responded, “I had my doubts, yes, ma’am.” Officer Turensky explained, “Because I did not know what [Nelson’s] crime was and the way she was talking about how she should not be considered an inmate because she was in the free world in a free-world hospital, that made me a tad nervous.”
In Haslar, we explained:
A single armed guard often cannot prevent a determined, unrestrained, and sometimes aggressive inmate from escaping without resorting to force. It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds.
Haslar, 104 F.3d at 180 (dealing with a “virtually comatose” pretrial detainee).
In assessing whether Officer Turensky’s conduct constituted deliberate indifference to Nelson’s serious medical needs, it is important to note Officer Turensky did not have any medical training, and specifically no training related to pregnancy and childbirth. Officer Turensky relied on the medical judgment of the medical personnel as to when it was medically necessary to remove the restraints.
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The record demonstrates Officer Turensky removed the restraints from Nelson every time medical personnel requested her to do so. There is no evidence and no allegation Officer Turensky refused to comply with any of the medical personnel’s requests or instructions. While Nelson claims, in the presence of Officer Turensky, one nurse commented that “[s]he wished that they wouldn’t have to put those restraints on [Nelson],” there is no evidence in the record any of the medical personnel ever told Officer Turensky the use of restraints on Nelson posed a danger to Nelson or her unborn child.
At oral argument, Nelson’s counsel conceded neither the actions nor the inactions of the medical personnel placed Nelson in any danger. The majority effectively holds Officer Turensky to a higher standard than the medical personnel to recognize a potential medical danger to Nelson or her baby.
The majority suggests Officer Turensky should have been aware of the risks involved with labor and childbirth because they are obvious, see ante at 11 n.4,13 and states a factfinder could infer “[Officer] Turensky recognized that the shackles interfered with Nelson’s medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee,” ante at 13. Officer Turensky delivered Nelson safely to a hospital and into the care of trained, professional medical personnel. As we recognized in Haslar, admitting an inmate “to a hospital
13The majority references the movie Gone With The Wind to support its position that it should have been obvious to Officer Turensky that the use of restraints posed a risk of harm to Nelson. Medical knowledge and care of pregnant women have advanced significantly since the 1860s. Nelson’s son was delivered in a medical facility at the hands of trained medical professionals. Officer Turensky escorted Nelson to the modern medical facility, and the hospital’s medical experts assessed any risks of harm to Nelson and her baby, including use of the restraints. Officer Turensky completely complied with ADC policies and all of the medical experts’ directions and requests.
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concretely demonstrates a deliberate concern for [the inmate’s] medical well-being, and not an indifference.” Haslar, 104 F.3d at 180. It was then the duty of the medical personnel to make medical decisions and to assess and recognize any medical dangers or risks to Nelson or her baby, including any obstacles to medical care and the avoidance of unnecessary suffering. The medical personnel treating Nelson certainly were aware of the inherent risks of childbirth and knew, better than Officer Turensky, how to avoid or minimize those risks, which was their professional responsibility. The medical personnel requested removal of the restraints from Nelson when removal was deemed medically necessary, and Officer Turensky always complied by removing the restraints.
Nelson does not contend, and the record does not indicate, she told Officer Turensky or the medical personnel that the shackles were causing her pain or suffering. A complaint of pain may have put Officer Turensky on notice of an unattended serious medical need or gratuitous infliction of pain. Without such a warning, Officer Turensky did not act with deliberate indifference.
III. Conclusion Nelson did not meet her burden to allege and show Officer Turensky
violated a clearly established constitutional right. Officer Turensky is entitled to qualified immunity. I would reverse the district court in all respects.
______________________________
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Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

October 02, 2009

West Publishing Opinions Clerk 610 Opperman Drive Building D D4-40 Eagan, MN 55123-0000
RE: 07-2481 Shawanna Nelson v. Larry Norris, et al
Dear Sirs:
A published opinion was filed today in the above case.
Counsel who presented argument on behalf of the appellant was Scott Paris Richardson, AAG, Little Rock, AR. Also appearing on the brief was Christine Ann Boozer, AAG, Little Rock, AR.
Counsel who presented argument on behalf of the appellee was Elizabeth Alexander, Washington, D.C. Also appearing on the brief was Cathleen V. Compton, Little Rock, AR.
Appearing on the amicus brief on behalf of the appellee was Charles M. Kester, Fayetteville, AR.; Tiloma Jayasinghe, Lynn M. Paltrow, and Catherine Albisa, all of New York, NY.
The judge who heard the case in the district court was Honorable James M. Moody. The judgment of the district court was entered on June 11, 2007.
If you have any questions concerning this case, please call this office.
Michael E. Gans Clerk of Court
DMH
Enclosure(s)
cc: Lois Law MO Lawyers Weekly
District Court/Agency Case Number(s): 1:04-cv-00037-JMM

CCasaese1::047-c2v4-8010037P-aJgMeM: 1 DocDuamteenFtile8d3: 10F/i0le2d/21000/092E/0n9try PIDa:g3e539516o5f 838

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102
October 02, 2009

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

Mr. Scott Paris Richardson ATTORNEY GENERAL'S OFFICE 323 Center Street 200 Catlett-Prien Building Little Rock, AR 72201-0000

RE: 07-2481 Shawanna Nelson v. Larry Norris, et al

Dear Counsel:

The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.

Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.

Michael E. Gans Clerk of Court

DMH Enclosure(s)

cc: Ms. Catherine Albisa Ms. Elizabeth Alexander Ms. Christine Ann Boozer Ms. Cathleen V. Compton Ms. Tiloma Jayasinghe Mr. Charles M. Kester Mr. Jim McCormack Ms. Lynn M. Paltrow Cynthia Soohoo Ms. Stephanie Toti

District Court/Agency Case Number(s): 1:04-cv-00037-JMM

Case 1:04-cv-00037-JMM Document 83 Filed 10/02/09 Page 36 of 38

8cc-cmecf-nda@ck8.uscourts. gov
10/02/2009 09:15 AM

To cc bcc Subject 07-2481 Shawanna Nelson v. Larry Norris, et al "Signed
Opinion Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

Eighth Circuit Court of Appeals

Notice of Docket Activity

The following transaction was filed on 10/02/2009

Case Name:

Shawanna Nelson v. Larry Norris, et al

Case Number:

07-2481

Document(s):

Document(s)

Docket Text: OPINION FILED - THE COURT: JAMES B. LOKEN, ROGER L. WOLLMAN, DIANA E. MURPHY, KERMIT E. BYE, WILLIAM JAY RILEY, MICHAEL J. MELLOY, LAVENSKI R. SMITH, STEVEN M. COLLOTON, RAYMOND W. GRUENDER, DUANE BENTON and BOBBY E. SHEPHERD. Diana E. Murphy, Authoring Judge. (PUBLISHED). CONCUR IN PART AND DISSENT IN PART BY: WILLIAM JAY RILEY with whom JAMES B. LOKEN, STEVEN M. COLLOTON, RAYMOND W. GRUENDER and BOBBY E. SHEPHERD join. [3591658] [07-2481] (DMH)
The following document(s) are associated with this transaction: Document Description:Signed Opinion Filed Original Filename:072481P.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=10/02/2009] [FileNumber=3591658-0] [cbf9ebb3734a350b504b78f1bc57845978434e11fb2888797178102935b456369d88388fea656aef 839cceb099cd599a162809122e23e625ff00e0f54dcc27f0]]
Document Description:Letter To Publishing Original Filename: /opt/ACECF/live/forms/dhogenmiller_072481_3591658_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=10/02/2009] [FileNumber=3591658-1]

Case 1:04-cv-00037-JMM Document 83 Filed 10/02/09 Page 37 of 38
[bf54f477e3c86c2fd6812061428cd057cb9bd768f59b9c483d79c13769a700dbe76ff76c7b4871e0 97a09a5b8cd3cd30f32b53175646f7241774ab4202c14981]] Recipients:
z Lois Law z MO Lawyers Weekly z West Publishing
Document Description:Counsel Opinion Letter Original Filename: /opt/ACECF/live/forms/dhogenmiller_072481_3591658_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=10/02/2009] [FileNumber=3591658-2] [03a8ad5ae07e5cca23114d45ee48ed8eeb01878b1b81ce3b12b81f12d183f906df281e84f1d343f2 ec278230e0c9bb6cae526684b3ae6daf270aaeaf1268597a]] Recipients:
z Ms. Albisa, Catherine z Ms. Alexander, Elizabeth, Director z Ms. Boozer, Christine Ann, Acting Assistant Attorney General z Ms. Compton, Cathleen V. z Ms. Jayasinghe, Tiloma z Mr. Kester, Charles M. z Mr. McCormack, Jim, Clerk of Court z Ms. Paltrow, Lynn M. z Mr. Richardson, Scott Paris, Assistant Attorney General z Soohoo, Cynthia z Ms. Toti, Stephanie
Notice will be electronically mailed to:
Ms. Alexander, Elizabeth, Director: ealexander@npp-aclu.org, mtartaglia@npp-aclu.org, agathers@npp-aclu.org Ms. Boozer, Christine Ann, Acting Assistant Attorney General: christine.boozer@arkansasag.gov Ms. Compton, Cathleen V.: vicki@cathicomptonlaw.com, cathi.compton@sbcglobal.net Mr. Kester, Charles M.: Cmkester@nwark.com, pauline@kester.arcoxmail.com Mr. McCormack, Jim, Clerk of Court: ared_appeals@ared.uscourts.gov Mr. Richardson, Scott Paris, Assistant Attorney General: scott.richardson@arkansasag.gov, danielle.williams@arkansasag.gov Ms. Toti, Stephanie: stoti@reprorights.org, rfriedman@reprorights.org Lois Law: FED08@loislaw.com MO Lawyers Weekly: smaniscalco@mo.lawyersweekly.com West Publishing: us08@westdcs.west.thomson.com

Case 1:04-cv-00037-JMM Document 83 Filed 10/02/09 Page 38 of 38
Notice will be mailed to:
Ms. Albisa, Catherine NATIONAL ECONOMIC AND SOCIAL RIGHTS INITIATIVE 90 John Street Suite 308 New York, NY 10038
Ms. Jayasinghe, Tiloma NATIONAL ADVOCATES FOR PREGNANT WOMEN 15 w. 36th Street Suite 901 New York, NY 10018
Mr. McCormack, Jim, Clerk of Court U.S. DISTRICT COURT Eastern District of Arkansas 600 W. Capitol Avenue Room A149 Little Rock, AR 72201-0000
Ms. Paltrow, Lynn M. NATIONAL ADVOCATES FOR PREGNANT WOMEN 15 W. 36th Street Suite 901 New York, NY 10018
Soohoo, Cynthia CENTER FOR REPRODUCTIVE LAW & POLICY 120 Wall Street 14th Floor New York, NY 10005-0000
The following information is for the use of court personnel:
DOCKET ENTRY ID: 3591658 RELIEF(S) DOCKETED:
for publication concurrence dissent DOCKET PART(S) ADDED: 4014002, 4014003, 4014004, 4014005, 4014006

 
 · '"

Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 1 of 10

FILED
u.s. DISlr~lC r CUURT
EASTERN DISTRICT ARKANSAS

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS

JUN 0 1 2004

NORTHERN DIVISION

JAMES W. McCORMACK, CLERK
By:_ _ _ _ _ _ _ _ _ _ _ _~~~

DEPCLERK

SCHAWANNA NELSON

PLAINTIFF

v.

CASE NO: 1:04CV00037

CMS, DOCTOR MAX MOBLEY, JANE DOES NURSES FOR CMS, LARRY NORRIS DIRECTOR OF THE ADC, AND OFFICER TURENSKI

DEFENDANTS

FIRST AMENDED COMPLAINT
Comes the Plaintiff, Shawanna Nelson, by and through her attorneys, and for her first Amended Complaint states: I. Plaintiff amends her complaint pursuant to Fed. Rules of Civil Procedure 7 (al, 15, 19 and 20, to more fully develop the issues and allegations raised in grievances filed and exhausted by the Plaintiff and to conform to the evidence which will be developed and presented during the course of this case and to add parties needed for the just adjUdication of the Plaintiff's claim so that complete relief may be afforded to the Plaintiff and to insure that all parties are joined who are pertinent to the events and relief sought arising out of the same transaction and occurrences which form the basis for this cause of action. There is no need for the Plaintiff to file a motion for leave to amend, in that F.R.C. P. 15 (al provides that a party may amend a pleading "once as a matter of course before a responsive pleading is served..." The term "pleading" must be read in
1

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connection with Fed. R. Civ. P. 7 (a), which enumerates the pleadings permitted under the federal rules as follows: a complaint, an answer, a reply to the counterclaim. an answer to a cross-claim, a third-party complaint, a third-party answer, and, pursuant to a court order, a reply to an answer or a third-party answer. Accordingly, a motion, including a motion to dismiss, does not qualify as a "pleading" that terminates a party' s right to amend a pleading as a matter of course, without leave of court, under Rule IS(a).
2. This is an action to secure the rights, privileges and immunities guaranteed by the Eighth Amendment to the United States Constitution as authorized by 42 U.S.c. 1983; for a permanent injunction prohibiting the Defendants, named in this pleading from continuing policies and customs which constitute cruel and unusual punishment by way of denial of appropriate medical care to inmates in labor and subjecting inmates to being restrained during labor; and to prohibit further retaliation against the Plaintiff for raising and exercising her Constitutional Rights through the prison grievance system, in violation of 42 U.S.c. 1983; to award Plaintiff damages for the infliction of extreme pain and suffering and mental anguish as a result of the violations described below; and to award the Plaintiff costs, attorneys fees and any other relief to which she would be entitled resulting from the violation of her Eighth Amendment Right to be free of cruel and unusual punishment and the denial of necessary medical care in retaliation for filing gnevances.
3. Jurisdiction of this Court is invoked under 28 U.S.C. 1342 (3) and (4) and is also a proceeding brought pursuant to 28 U.S.C. 2201 and 2202.
4. Plaintiff, filed grievance number MCP 2970 setting forth her grievances with regard to the allegations found in this complaint related to the intentional denial of
2

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,
necessary medical care for a serious medical condition and for infliction of cruel and unusual punishment by restraining Plaintiff during the latter stages of her labor and delivery. The Plaintiff exhausted this grievance by receiving a final response from the Deputy Assistant Director. A copy of the documentation of that grievance is attached hereto and incorporated herein as exhibit A.
5. Plaintiff filed grievance number MCP 0204 setting forth her grievances with regard to retaliatory actions engaged in by officer Turenski when medical care for her continuing pain was intentionally denied Plaintiff. Plaintiff failed to receive an appropriate response from the prison and filed a second grievance number MCP 0488 related to the continuing actions of Officer Turenski wherein the Plaintiff reiterates and references the complaints she made in the earlier grievance numbered 0204. Plaintiff received a final response for these two grievances by way of a memo from the Deputy Director dated March 25, 2004. Due to the failure of the prison unit to properly respond to the Plaintiffs grievances 0204 and 0488, the Plaintiff affirmatively alleges that she has exhausted all available remedies with regard to the allegations contained in this complaint setting forth the continuing intentional denial of medical care by officer Turenski in retaliation for the filing of grievance number 2970. A copy of documents related to the above cited grievances are attached and incorporated herein as exhibit B.
6. Plaintiff is a citizen and resident of Union County, Arkansas, currently incarcerated at the Arkansas Department of Corrections, McPherson Unit, Newport, Arkansas.
7. Defendant CMS is a corporation acting under color of state law whose policies and customs with respect to female inmates in labor violate the
3

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Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 4 of 10

Eighth Amendment prescription against cruel and unusual punishment. Defendant CMS is being sued in its official and individual capacity as entity that has the power to implement policy concerning the medical welfare of female inmates in labor and the protocol that is necessary to protect both mother and child from serious medical ramifications resulting from the failure to provide adequate monitoring of the progress of the labor as well as the heart rate of the fetus. 8. Defendants Jane Doe nurses, represented official policy of Defendant CMS in failing to provide adequate medical care to Plaintiff while she was in labor, to perform necessary examination to determine the progress of the Plaintiffs labor, by delaying Plaintiffs access to appropriate monitoring through a fetal monitor and by denying Plaintiff adequate medication as her labor progressed. Defendants Jane Doe nurses are being sued in their individual and official capacities. 9. Defendant Max Mobley is Medical Director for the Arkansas Department of Correction and failed to see to it that proper policies and customs were implemented to protect inmates in labor from enduring extreme pain and mental anguish and from insuring that proper fetal monitoring equipment is present in the prison infirmary or that proper procedures are implemented to insure that mothers such as the Plaintiff, are sent to the hospital within a reasonable time frame following the onset of labor. Defendant Mobley is being sued in both his official and individual capacities. 10. Defendant, Larry Norris is the Director of the Arkansas Department of Correction and failed to see to it that proper policies and customs are implemented with

4

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,

Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 5 of 10

respect to restraints of female inmates who are in labor. being sued in his official and individual capacity.

Defendant Larry Norris is

II. Defendant, Officer Turenski is an employee and agent of the Department of

Correction and inflicted injury upon the Plaintiff by refusing to remove Plaintiffs

restraints while Plaintiff was approaching the end stages of labor, which interfered with

appropriate positioning and relaxation crucial to the control of pain and to the proper and

safe delivery of the child. Defendant Turenski's actions represented official policy of

the ADC by refusing to consider the pain and suffering of the Plaintiff while she

approached the latter stages of the delivery process. Defendant Turenski has continued

to inhibit Plaintiffs access to appropriate medical care and relief of her continuing

painful back symptoms, in retaliation for the grievance that Plaintiff filed against

Defendant Turenski immediately following Plaintiffs labor and delivery. Defendant

Turnenski is being sued in her official and individual capacity.

12. On or about June 3, 2003, Plaintiff was incarcerated at the Arkansas

Department of Correction located in Newport. Arkansas.

13. At approximately 5:00 am on September 20, 2003 the Plaintiff began her

labor. Plaintiff reported to the infirmary a:ld was told that she would not be allowed to

report to the local hospital until her contractions were 4 to 5 minutes apart. The

Defendant Nurses refused to examine the Plaintiff to determine the progress of her

cervical dilation, and therefore failed to provide the most appropriate manner in which to

gauge the progress of labor. Defendants failed to provide any equipment at the prison

infirmary that is typically utilized at all hospitals to measure and monitor the strength of

the Plaintiffs contractions as well as the effect of the contractions on the fetal heart rate.

5

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The Plaintiff was not allowed to go to the hospital until late in the evening on September 20, 2003 and upon admission, the Plaintiff was 100% effaced and dilated to 7 centimeters. By the time Plaintiff was allowed to obtain proper medical care, she was in the most painful and stressful progress of labor that is known as "transition." The failure to release Plaintiff to the care of a well-equipped hospital that could relieve Plaintiffs pain and anxiety and provide proper monitoring of the plaintiffs labor and the fetal heart rate was the result of policies and customs that have been implemented and practiced by CMS and adopted and ratified by Dr. Max Mobley. Such practices caused the plaintiff to endure extreme mental anguish and pain and suffering and represents medical care that is so inappropriate as to evidence an absolute refusal to provide essential care as well as a deliberate and intentional indifference to a serious medical condition.
14. At the time that the Plaintiff arrived at the hospital, Officer Turenski refused to remove the Plaintiffs shackles and leg restraints, despite requests from the nurses and the Doctor. At the time the Plaintiff was enduring the most painful part of labor, Officer Turenski intentionally allowed Plaintiffs pain and anxiety to be aggravated through the refusal to remove the restraints despite requests made by trained obstetrical nurses and by the physician in charge. The Plaintiffs restraints were not removed until Plaintiff was placed on the delivery table. The actions of Officer Turenski represents policies of the Arkansas Department of Correction which are implemented and enforced by Defendant Larry Norris and which demonstrate an intentional disregard for the suffering of women inmates such as the Plaintiff and is a clear violation of the Eighth Amendment proscription against cruel and unusual punishment.
6

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'.
15, As a result of the above described conduct, Plaintiff endured extreme mental anguish and pain and suffering and sustained permanent injury to her back, The failure to remove the restraints and shackles upon admission to the hospital has caused continuing back pain and damage to the sciatic nerve,
16, Following the Plaintiffs return to incarceration, and after Plaintiff filed her first grievance, Officer Turenski has retaliated against Plaintiff by inhibiting her access to medical care for the back injuries caused by Officer Turenski.'s conduct.
17, The rights of the Eighth Amendment and its prescription against cruel and unusual punishment particularly as it relates to the denial of essential medical care is well-established and is known by all the Defendants named in this lawsuit. Administrator and employees of prisons have been clearly directed to provide essential medical care to inmates who are experiencing serious medical problems, The process of childbirth poses serious risks to both mother and child and the process deserves appropriate care monitoring and treatment. Delaying proper medical care and monitoring to a woman in labor represents a violation of the Eighth Amendment. Refusing to remove restraints is clearly an infliction of cruel and unusual punishment upon helpless women who are already enduring extreme pain and stress and who are vulnerable to back injury during the course oflabor and delivery,
18, As a result of the damages inflicted upon the Plaintiff, she is entitled to the following relief:
PRAYER FOR RELIEF: (a) that this Court enter a declaratory judgment that the actions of the defendants violated the Eighth Amendment and 42 U,S,c, 1983,
7

• •

Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 8 of 10

(b) that Plaintiff be awarded both compensatory damages for her pam and suffering and permanency of her back injury;
(c) that Plaintiff be awarded punitive damages; (d) that Plaintiff be awarded attorney's fees and costs; (e) that a permanent injunction be entered prohibiting further retaliation against
the Plaintiff by Officer Turenski; and prohibiting Defendants from engaging in practices outlined in this complaint so that mothers and babies are provided essential medical care during the course of labor and delivery and that female inmates may be admitted to maternity wards without restraints that pose a threat to the well being of the mother and baby; (f) A trial by a jury of twelve of her peers; and (g) that Plaintiff be awarded such additional and further relief to which she is entitled and which this Court deems is just and proper; and for any additional relief to which she may become eligible during the pendency of this litigation.

Respectfully submitted,

Eileen arns

McMath, Woods

711 W. Third St.

Little Rock, AR 72201

(50

5413

Cathleen V. Compton, Attorney at Law 114 South Pulaski Little Rock, AR 72201
8

Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 9 of 10
"
Certificate of Service I certify that a copy of the foregoing pleading has been mailed this 1st day of June, 2004
::'~~I~"mpbri~. H=pbri" & u,w""o(~_ 870
Cathleenv:comptOtl Attorney for Plaintiff
9

Case 1:04-cv-00037-JMM Document 10 Filed 06/01/04 Page 10 of 10
UNITED STATE DISTRICT COURT EASTERN DISTRICT OF ARKANSAS
Exhibits Attached
to Original
Document in Courts's Case File

 
 Case 1:04-cv-00037-JMM Document 74 Filed 06/11/07 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

SHAWANNA NELSON

PLAINTIFF

V.

NO. 1:04cv00037 JMM-JWC

CORRECTIONAL MEDICAL SERVICES, et al

DEFENDANTS

ORDER

The Court has reviewed the Proposed Findings and Recommended Partial

Disposition received from Magistrate Judge Jerry Cavaneau and the objections filed in

response, and has further reviewed the relevant record de novo. The Findings and

Recommendations are adopted in their entirety as this Court's findings.

ACCORDINGLY,

1. The Arkansas Department of Correction (“ADC”) Defendants’ motion to have

their statement of facts deemed admitted (docket entry #67) is denied;

2. Defendant Correctional Medical Services, Inc.’s (“CMS”) motion for summary

judgment (docket entry #43) is granted;

3. The ADC Defendants’ motion for summary judgment (docket entry #49) is

granted in part and denied in part;

4. Plaintiff’s claims for denial of medical care by Defendant Turnesky in

connection with a missed medical appointment and retaliation by Defendant Turnesky are

dismissed without prejudice on administrative exhaustion grounds;

5. Plaintiff’s claims against Defendant CMS are dismissed in their entirety with

prejudice;

6. Plaintiff’s claims against Defendant Mobley are dismissed in their entirety with

prejudice.

Case 1:04-cv-00037-JMM Document 74 Filed 06/11/07 Page 2 of 2 7. Plaintiff’s labor and childbirth claims shall proceed against Defendants Norris and Turnesky; 8. Plaintiff’s claim for monetary damages against Defendants Norris and Turnesky in an official capacity only is barred by the Eleventh Amendment; 9. This case remains scheduled for jury trial on July 30, 2007. IT IS SO ORDERED this 11 day of June 2007.
__________________________________ UNITED STATES DISTRICT JUDGE
2

 
 Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 1 of 11

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-2481 ___________

Shawanna Nelson,

*

*

Appellee,

*

*

v.

* Appeal from the United States

* District Court for the

Correctional Medical Services;

* Eastern District of Arkansas.

Max Mobley, Doctor,

*

*

Defendants,

*

*

Larry Norris, Director of the ADC; *

Patricia Turnesky, Officer,

*

*

Appellants.

*

__________

Submitted: March 14, 2008 Filed: July 18, 2008

___________

Before RILEY, GRUENDER, and SHEPHERD, Circuit Judges. ___________

RILEY, Circuit Judge

Larry Norris , Director of the Arkansas Department of Correction (Director Norris), and Patricia Turnesky, prison security officer (Officer Turnesky), appeal from the district court’s denial of their motion for summary judgment based on qualified immunity. For the reasons stated below, we reverse.

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 2 of 11
I. BACKGROUND Shawanna Nelson (Nelson) was incarcerated in the Arkansas Department of
Correction for credit card fraud and hot checks. Nelson was six months pregnant when she entered prison on June 3, 2003. On September 20, 2003, Nelson went to the prison’s infirmary because of contractions. The nurses in the infirmary determined Nelson’s contractions were strong and Nelson should be transported to the hospital. Prison officers placed Nelson in handcuffs and leg restraints before Officer Turnesky escorted Nelson to the hospital.
Upon arrival at the hospital, Nelson was immediately admitted to the labor and delivery unit where Officer Turnesky shackled Nelson to the bed’s handrail. Nelson remained handcuffed and shackled until the medical staff needed to access Nelson’s arms for drawing blood and to determine how far Nelson had dilated, at which time the handcuffs and shackles were removed. For the majority of the labor time, however, Nelson remained shackled by, at least, one ankle to the bed handrail. When the doctor arrived for the delivery and requested removal of the restraints, Officer Turnesky removed the restraints. After giving birth to her son, Nelson was again placed in leg restraints. Officer Turnesky testified she did not ever feel threatened by Nelson at any time.
Claiming she experienced extreme mental anguish, pain and suffering, permanent back injury and hernia-like symptoms, Nelson brought a civil rights action, under 42 U.S.C. § 1983, against the officials and medical personnel, alleging violations of the Eighth Amendment. Nelson, among other contentions, claimed (1) Officer Turnesky’s failure to remove the restraints earlier amounted to cruel and unusual punishment, and (2) Director Norris failed to ensure proper policies and customs were implemented with respect to the restraint of females in labor.
-2-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 3 of 11
Director Norris and Officer Turnesky filed a motion for summary judgment, claiming qualified immunity and arguing no federal constitutional violation supports Nelson’s § 1983 claim. Adopting the magistrate judge’s report and recommendation, the district court denied summary judgment on the basis of qualified immunity. The district court stated it could not say reasonable officials in the position of Director Norris and Officer Turnesky would not have known that shackling Nelson’s legs, without regard to whether Nelson posed a flight risk, violated Nelson’s Eighth Amendment rights.1 Director Norris and Officer Turnesky appeal.
II. DISCUSSION We review de novo a denial of summary judgment based on qualified
immunity. See Brown v. Fortner, 518 F.3d 552, 558 (8th Cir. 2008) (citation omitted). Summary judgment is proper if, after viewing the evidence and drawing all reasonable inferences in the light most favorable to the nonmovant, no genuine issues of material fact exist and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Brown, 518 F.3d at 558 (citation omitted).
Section 1983 provides a cause of action against government officials who deprive persons of “rights, privileges, or immunities secured by the Constitution.” 42 U.S.C. § 1983. Government officials are entitled to a dismissal “if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Sanders v. City of Minneapolis, Minn., 474 F.3d 523, 526 (8th Cir. 2007) (citations and internal quotation marks omitted). “In addressing an officer’s claimed entitlement to qualified immunity, the court must first determine whether the allegations amount to a constitutional violation, and then, whether that right was clearly established.” Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)).
1Nelson also brought other claims against these and other defendants. The district court dismissed all of Nelson’s claims except the Eighth Amendment claims arising out of Nelson being restrained to the hospital bed handrail during labor.
-3-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 4 of 11
“Qualified immunity is not just a defense to liability, it constitutes immunity from suit.” Hanig v. Lee, 415 F.3d 822, 824 (8th Cir. 2005) (citing Saucier, 533 U.S. at 200). If the allegations and undisputed facts do not amount to a constitutional violation, “there is no necessity for further inquiries concerning qualified immunity.” Saucier, 533 U.S. at 201.
In reviewing the district court’s denial of qualified immunity, we must determine first if undisputed facts show a “deprivation of an actual constitutional right.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). It is well settled the “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (citation omitted). However, not “every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Id. at 105. “In order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. It is only such indifference that can offend ‘evolving standards of decency’ in violation of the Eighth Amendment.” Id. at 106. “Our court has interpreted this standard as including both an objective and a subjective component: The [plaintiff] must demonstrate (1) that [he] suffered [from] objectively serious medical needs and (2) that the prison officials actually knew of but deliberately disregarded those needs.” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000) (citation and internal quotation marks omitted).
With respect to the objective serious medical need, a medical need is “serious” if it “has been diagnosed by a physician as requiring treatment, or one that is so obvious that even a layperson would easily recognize the necessity for a doctor’s attention.” Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir 1997) (citation and internal quotation marks omitted). With respect to deliberately disregarding a medical need, “[t]he prisoner must show more than negligence, more even than gross negligence, and mere disagreement with treatment decisions does not rise to the level of a
-4-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 5 of 11
constitutional violation.” Jolly, 205 F.3d at 1096 (citation and internal quotation marks omitted). More to the point, “defendants will therefore be liable for [a plaintiff’s] injuries only if [a] policy of shackling [] detainees while they receive medical attention constitutes either deliberate indifference to medical needs or a punishment.” Haslar v. Megerman, 104 F.3d 178, 180 (8th Cir. 1997) (citations omitted).
Nelson suffered from a serious medical need. Nelson was pregnant, went into labor and needed medical care. Nothing in the record indicates defendants deliberately disregarded Nelson’s medical need. Recognizing the serious medical need, Nelson was taken to a hospital when the nurses in the prison’s infirmary determined it was necessary. Upon arrival at the hospital, Nelson was immediately admitted to the labor and delivery unit. Although the record indicates Nelson was (1) initially handcuffed and shackled, (2) later shackled by, at least, one ankle to the bed railing until shortly before she actually gave birth, and (3) placed in leg restraints after giving birth, nothing in the record indicates Director Norris and Officer Turnesky, or anyone else, deliberately disregarded Nelson’s medical needs. Transporting and “[a]dmitting [Nelson] to a hospital concretely demonstrates a deliberate concern for [Nelson’s] medical well-being, and not an indifference.” Id. The record shows Nelson received adequate medical treatment, and when medical personnel requested the removal of the restraints, Officer Turnesky complied.
Nelson insists (1) Officer Turnesky’s failure to remove the ankle restraint amounts to cruel and unusual punishment; and (2) Director Norris failed to issue or implement a proper policy with respect to the use of restraints on female inmates in labor. “When a policy lacks an express intent to punish, as this one does, we may infer such an intent if the policy is either unrelated to a legitimate penological goal or excessive in relation to that goal.” Id. (citation omitted). We have precedent discussing the policy of shackling inmates to a bed while receiving medical treatment. As explained in Haslar,
-5-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 6 of 11
[the shackling policy] serves the legitimate penological goal of preventing inmates . . . from escaping [] less secure confines, and is not excessive given that goal. A single armed guard often cannot prevent a determined, unrestrained, and sometimes aggressive inmate from escaping without resort to force. It is eminently reasonable to prevent escape attempts at the outset by restraining hospitalized inmates to their beds . . . .
Id. (emphasis added).
In Haslar, the shackled detainee was virtually comatose for the first few days of his hospitalization. During Haslar’s hospitalization, his legs became extremely swollen to the point the shackles were barely visible. Id. at 179. Haslar complained the shackles were too tight and his feet hurt. Id. Officers still kept Haslar shackled during his entire stay in the hospital. Id. By the time Haslar left the hospital, Haslar could not walk, and he suffered permanent leg damage. Id.
As in Haslar, the policy of placing a restraint on Nelson while in a hospital bed is unequivocally related to a penological goal and is not constitutionally excessive in relation to that goal. All restraints were removed from Nelson when the attending physician requested their removal. Nelson’s experience does not rise to the level of unnecessary and wanton infliction of pain implicating the Eighth Amendment.2 See Jensen v. Clarke, 94 F.3d 1191, 1197 (8th Cir. 1996). Contrary to the district court’s determination, Nelson’s allegations and undisputed facts do not amount to a constitutional violation. Therefore, we do not need to inquire further regarding qualified immunity. See Saucier, 533 U.S. at 201.
2As the district court noted, Nelson proffered no medical or other expert evidence suggesting any delay in care adversely affected her or her son. Other than unsubstantiated allegations, the record contains no medical evidence indicating the shackles caused any injuries to Nelson or her son.
-6-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 7 of 11
III. CONCLUSION Based on the foregoing, we reverse the judgment of the district court and
remand with instructions to enter judgment consistent with this opinion. ______________________________
-7-

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 8 of 11

Michael E. Gans Clerk of Court

United States Court of Appeals
For The Eighth Circuit
Thomas F. Eagleton U.S. Courthouse 111 South 10th Street, Room 24.329
St. Louis, Missouri 63102

VOICE (314) 244-2400 FAX (314) 244-2780
www.ca8.uscourts.gov

July 18, 2008

Mr. Scott Paris Richardson ATTORNEY GENERAL'S OFFICE 323 Center Street 200 Catlett-Prien Building Little Rock, AR 72201-0000
RE: 07-2481 Shawanna Nelson v. Larry Norris, et al
Dear Counsel:
The court has issued an opinion in this case. Judgment has been entered in accordance with the opinion. The opinion will be released to the public at 10:00 a.m. today. Please hold the opinion in confidence until that time.
Please review Federal Rules of Appellate Procedure and the Eighth Circuit Rules on postsubmission procedure to ensure that any contemplated filing is timely and in compliance with the rules. Note particularly that petitions for rehearing and petitions for rehearing en banc must be received in the clerk's office within 14 days of the date of the entry of judgment. Counsel-filed petitions must be filed electronically in CM/ECF. Paper copies are not required. No grace period for mailing is allowed, and the date of the postmark is irrelevant for pro-se-filed petitions. Any petition for rehearing or petition for rehearing en banc which is not received within the 14 day period for filing permitted by FRAP 40 may be denied as untimely.
Michael E. Gans Clerk of Court
DMH
Enclosure(s)
cc: Ms. Christine Ann Boozer Ms. Cathleen V. Compton Mr. Jim McCormack
District Court/Agency Case Number(s): 1:04-cv-00037-JMM

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 9 of 11

8cc-cmecf-nda@ck8.uscourts. gov
07/18/2008 08:55 AM

To cc bcc Subject 07-2481 Shawanna Nelson v. Larry Norris, et al "Signed
Opinion Filed"

***NOTE TO PUBLIC ACCESS USERS*** Judicial Conference of the United States policy permits attorneys of record and parties in a case (including pro se litigants) to receive one free electronic copy of all documents filed electronically, if receipt is required by law or directed by the filer. PACER access fees apply to all other users. To avoid later charges, download a copy of each document during this first viewing.

Eighth Circuit Court of Appeals

Notice of Docket Activity

The following transaction was filed on 07/18/2008

Case Name:

Shawanna Nelson v. Larry Norris, et al

Case Number:

07-2481

Document(s):

Document(s)

Docket Text: OPINION FILED - THE COURT: WILLIAM JAY RILEY, RAYMOND W. GRUENDER and BOBBY E. SHEPHERD. William Jay Riley, Authoring Judge (PUBLISHED) [3452938] [07-2481]
The following document(s) are associated with this transaction: Document Description:Signed Opinion Filed Original Filename:072481P.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/18/2008] [FileNumber=3452938-0] [8706d91363c7a57328cf73b56677cf183399b54a2b4de94843ae81516360d56c0fa8a3a49878b0e 5b7539c2a04d888c203fddc1dc72c89e1b82af3ef3dd22621]]
Document Description:Letter To Publishing Original Filename: /opt/ACECF/live/forms/dhogenmiller_072481_3452938_LettersToPublishing_284.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/18/2008] [FileNumber=3452938-1] [cb280e5e589d5facbb57a8a7794ad60ff2f78ac97c4c291f50e0965710fdc3a887a2cdfa9395b067a 48109004661d9badaef12343f6c7513414e04f51957efc7]] Recipients:
z Lois Law

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 10 of 11
z MO Lawyers Weekly z West Publishing
Document Description:Counsel Opinion Letter Original Filename: /opt/ACECF/live/forms/dhogenmiller_072481_3452938_CounselOpinionLetters_285.pdf Electronic Document Stamp: [STAMP acecfStamp_ID=1105112566 [Date=07/18/2008] [FileNumber=3452938-2] [920afd5cbd88676ec369c605a7dfd7e9c573128f529f378134aa9425837564294c00af9dbf195877 325fcdc310e71c57a683d4f97f0ebff4887b02a4fcbf49e2]] Recipients:
z Ms. Boozer, Christine Ann, Acting Assistant Attorney General z Ms. Compton, Cathleen V. z Mr. McCormack, Jim, Clerk of Court z Mr. Richardson, Scott Paris, Assistant Attorney General
Notice will be electronically mailed to:
Ms. Boozer, Christine Ann, Acting Assistant Attorney General: christine.boozer@arkansasag.gov Ms. Compton, Cathleen V.: vicki.selle@sbcglobal.net, cathi.compton@sbcglobal.net Mr. McCormack, Jim, Clerk of Court: ared_appeals@ared.uscourts.gov Mr. Richardson, Scott Paris, Assistant Attorney General: scott.richardson@arkansasag.gov, danielle.williams@arkansasag.gov Lois Law: FED08@loislaw.com MO Lawyers Weekly: smaniscalco@mo.lawyersweekly.com West Publishing: us08@westdcs.west.thomson.com
Notice will be mailed to:
Mr. McCormack, Jim, Clerk of Court U.S. DISTRICT COURT Eastern District of Arkansas 600 W. Capitol Avenue Room A149 Little Rock, AR 72201-0000
The following information is for the use of court personnel:
DOCKET ENTRY ID: 3452938 RELIEF(S) DOCKETED:

Case 1:04-cv-00037-JMM Document 80 Filed 07/18/08 Page 11 of 11
for publication DOCKET PART(S) ADDED: 3761436, 3761437, 3761438

 
 Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

SHAWANNA NELSON

PLAINTIFF

v.

CASE NO.: 1:04-CV-0037 JMM-JWC

PATRICIA TURENSKY

DEFENDANT

MEMORANDUM BRIEF IN SUPPORT OF PLAINTIFF'S
APPLICATION FOR ATTORNEYS' FEES AND COSTS

On June 1,2004 Officer Turensky was added as a defendant in this lawsuit. On July 28, 2004 Judge Jerry W. Cavaneau entered an order to serve Officer Turensky (Docket Entry #12). Officer Turensky filed an answer on August 13,2004. From August 13,2004 until July 15,2010 Officer Turensky vigorously defended this lawsuit.
Officer Turensky was deposed on September 7, 2006 and testified that she did not know why she was taking Plaintiff to the hospital on the afternoon of September 20, 2003. She confirmed this testimony at trial and further testified that she did not notice Plaintiff spain during labor. She maintained that Arkansas Department of Corrections ("ADC") policy dictated shackles be placed on Plaintiff after Plaintiff was taken to a hospital room, changed into a gown, put into a hospital bed and was in the final stages of labor. The ADC policy prohibited shackles at this juncture.
Nonetheless, Officer Turensky denied liability and this matter was tried to a jury after extensive briefing to u.S. Magistrate Judge Jerry W. Cavaneau, U.S. District Judge James M.

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 2 of 10

Moody and the Eighth Circuit United States Court of Appeals. The jury found in favor of

Plaintiff and that Defendant's action was unconstitutional.

Pursuant to 42 U.S.C. 1988 this Court may award attorneys to the prevailing party in a 42

U.S.C. § 1983 cause of action. As a result of six (6) years oflitigation, the Plaintiff's attorneys

have incurred fees and expenses as follows:

Paul J. James

$ 52,373.26

Cathleen V. Compton

$ 56,117.41

Elizabeth Alexander

$ 29,913.10

Holly Dickson

$ 6,106.93

TOTAL

$144,510.70

The foregoing fees and expenses are reasonable and the Plaintiff requests an order from

the Court for payment of the fees and costs.

Although the jury awarded nominal damages, Ms. Nelson is entitled to a fully compensatory fee. In Lowry ex ret. Crow v. Watson Chapel School Dist., 540 F.3d 752 (8th Cir.

2008), the defendants argued that the trial court should not have awarded attorney fees because

plaintiffs had recovered only nominal damages for violation of their First Amendment rights.

The Eighth Circuit rejected this argument:

Although plaintiffs received only nominal damages, their victory was not merely technical. Plaintiffs obtained an injunction that benefitted all of the students in the school district, and the free speech right vindicated was not readily reducible to a sum of money.

Lowry, 540 F.3d at 765.

The same is true in this case. It is undisputed that Ms. Nelson's suit resulted in a policy

change that benefits current and future ADC prisoners - the functional equivalent of an

injunction. Moreover, her lawsuit - particularly her victory before the en bane Eighth Circuit --

brought widespread attention to the practice of shackling pregnant prisoners, which has since

2

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 3 of 10
been abandoned by a number of states and by the federal government. Ms. Nelson's suit "'vindicate[d] important civil and constitutional rights that cannot be valued solely in monetary terms.'" Blanchard v. Bergeron} 489 U.S. 87, 96 (1989), quoting Riverside v. Rivera, 477 U.S. 561, 574 (1986). And "[b]ecause damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief." Lowry} 540 F.3d at 764 (quoting Riverside, 477 U.S. at 575).
Nelson understands that, '''the degree of the plaintiff's overall success goes to the reasonableness ofa fee award.'" Farrar v. Hobby, 506 U.S. 103,114 (1992) (internal quotation omitted) and that the Supreme Court has held that in certain instances a prevailing civil rights plaintiff who receives only nominal damages might not be entitled to attorneys' fees. However, such cases are rare and are distinguishable from this case. In Farrar, the plaintiff asked for $17 million in compensatory damages and received only $1; indeed, the "litigation accomplished little beyond giving [him] 'the moral satisfaction of knowing that a federal court concluded that [his] rights had been violated' in some unspecified way." Id, quoting Hewitt v. Helms, 482 U.S. 755, 762 (1987). Conversely, Shawanna Nelson's lawsuit resulted in the modification of specific correctional policies in Arkansas on the shackling of pregnant women. It also brought attention to this practice, which has since been abandoned by a number of states and by the federal government. Ms. Nelson's suit '''vindicate[d] important civil and constitutional rights that cannot be valued solely in monetary terms.'" Blanchard v. Bergeron} 489 U.S. 87, 96 (1989), quoting Riverside v. Rivera, 477 U.S. 561, 574 (1986).
A central purpose of Shawanna Nelson's lawsuit was- to bring about changes in policy and reform the law on this issue. This distinguishes this case starkly from Farrar} where the recovery of compensatory damages was the primary motive of the litigation. In that case, the
3

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 4 of 10
Supreme Court held that '" Where recovery ofprivate damages is the purpose of ... civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought.'" Farrar, 606 U.S. at 114, quoting Riverside v. Rivera, 477 U.S. 561, 585 (1986) (Powell, J., concurring in judgment) (emphasis added). However, where a purpose other than the recovery of private damages predominates, "the degree of the plaintiffs overall success" cannot be measured by the amount of damages alone. In this case, "the vindication of the asserted ... right.. .ha[s] served a public interest, supporting the amount of the fees [to be] awarded." Riverside, 477 U.S. at 586 (Powell, J., concurring in judgment). See also, Hensley v. Eckerhart, 461 U.S. 424,436 (1983) (noting that "in complex civil rights litigation involving... challenges to institutional practices...the range of possible success is vast"); accord, Texas State Teachers Ass 'n v. Garland Independent School Dist., 489 U.S. 782, 790 (1989) (holding that "the degree of the plaintiffs success in relation to other goals of the lawsuit is a factor critical to the determination of the size of a reasonable fee" and noting that Congress intended fees to be awarded when a civil rights plaintiff "has prevailed on an important matter in the course of litigation.")
The law of the Eighth Circuit distinguishes between plaintiffs who receive nominal damages because of a failure to prove their entitlement to compensation, and plaintiffs who undertake litigation primarily for non-pecuniary purposes. "In Farrar, private damages were the purpose of the litigation.... Here, in contrast, the purpose of the litigation was not private damages." Lowry ex ret. Crow v. Watson Chapel School Dist., 540 F.3d 752, 764 (8th Cir. 2008). Thus, where a plaintiffs civil rights suit has brought about substantial reforms in the policies and practices of the defendants, no reasonable inquiry into the degree of success can look to the amount of damages alone. Indeed, "[b]ecause damages awards do not reflect fully the public benefit advanced by civil rights litigation, Congress did not intend for fees in civil
4

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 5 of 10
rights cases, unlike most private law cases, to depend on obtaining substantial monetary relief." Id.; cf Warnock v. Archer, 380 F.3d 1076, 1084 (8th Cir. 2004) Loggins v. Delo, 999 Fold 364, 369 (8th Cir. 1993).
The post-Farrar jurisprudence of the Eighth Circuit has incorporated the three factors that Justice O'Connor weighed in her Farrar concurrence, 506 U.S. at 121, to determine whether a civil rights plaintiff has achieved a merely "technical" victory unworthy of a fee award. These factors are "1) the difference between the amount recovered and the damages sought; 2) the significance of the legal issue on which the plaintiff prevailed; and 3) any public goal or purpose the litigation might have served." Jones v. Lockhart, 29 F.3d 422, 424 (8th Cir. 1994). Employing these factors, the Court of Appeals has found fee awards appropriate in civil rights cases even where damages were nominal. For example, in Jones, the Eighth Circuit found a fee award appropriate even though the plaintiff recovered only $2, because of the "important public purpose" of the litigation and because "vindication of the constitutional right to be free from cruel and unusual punishment is a significant legal issue in contrast to the injury to a business interest alleged in Farrar." Id. Likewise, in Murray v. City of Onawa, the Court of Appeals found a fee award appropriate where the plaintiff recovered only $1 because "allegations of police abuse and misconduct are serious legal issues" and because "a clear public policy is served by this case." 323 F.3d 616, 619 (8th Cir. 2003). Like these cases, Shawanna Nelson's suit was brought primarily to reform public policy and influence the law on an important issue. The suit achieved this purpose successfully. Accordingly, this court should, like the Supreme Court, "reject the proposition that fee awards under § 1988 should necessarily be proportionate to the amount of damages a civil rights plaintiff actually recovers." Riverside, 477 U.S. at 574 (noting that "the amount of damages a plaintiff recovers is ... only one of many factors that a court should consider in calculating an award of attorney's fees").
5

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 6 of 10

Defendant may argue that the Prison Litigation Reform Act ("PLRA") restriction on fees

set forth in 42 U.S.C. § 1997(e)(d) applies to this case. It does not. This lawsuit was initially

filed while Plaintiff Shawanna Nelson was still incarcerated. However, the lawsuit against

Defendant Turensky was not filed until June 1,2004 (Docket Entry #10). U.S. Magistrate Judge

Jerry W. Cavaneau did not allow Turensky to be served until July 28,2004 (Docket Entry #12).

Turensky did not answer until August 13, 2004. Shawanna Nelson was released from prison on

June 23, 2004.

On February 7, 200S, Officer Turensky filed an answer to an amended complaint (Docket

Entry # 19). On April 13, 2010, in order to clarify the PLRA fee restriction issue, Plaintiff filed a

Motion for Leave of Court to file an amended complaint (Docket Entry #94). In her Motion,

Plaintiff specifically alleged that the PLRA did not apply because Plaintiff was no longer a

prisoner. Officer Turensky did not object to Plaintiffs Motion and an Order granting Plaintiffs

Motion for Leave was granted (Docket Entry #lS).

A Second Amended Complaint was then filed on May S, 2010 in which Plaintiff once

again alleged non applicability of the PLRA. Subsequently, this lawsuit was tried July 14th and

1S

t \

2010.

This was over six (6) years after Plaintiff Shawanna Nelson was released from

pnson.

Plaintiffs June 23, 2004 release from prison occurred prior to U.S. Magistrate Jerry W.

Cavaneau's July 28, 2004 Order that allowed Officer Turensky to be made a party. Officer

Turensky did not file a pleading in this case until August 8, 2009. The complaint was amended

two times after Plaintiff s release.

Because Plaintiff Shawanna Nelson was released from prison when Judge Cavaneau

allowed Officer Turensky to be recognized as a defendant in this lawsuit, the "absurdity

exception" to the plain meaning rule should apply to the interpretation of 42 U.S.C. § 1997(e)(d)

6

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 7 of 10
in Plaintiffs successful, non-prisoner civil rights action. See Morris v. Eversley 343 F.Supp. 2d 234 (S.D.N.Y. 2004).
If Defendants argue U.S. Magistrate Judge Jerry W. Cavaneau's July 28, 2004 order allowing Officer Turensky to be a party has no effect on the applicability of the fee limiting restrictions on the PLRA, Plaintiff contends that the post release amendments take Plaintiff out of the PLRA for purposes of the litigation. Paragraph 3 of Plaintiff s Motion for Leave provides specifically as follows:
Circumstances have changed since April 15, 2004. The claims against Correctional Medical Services, its employees and the Arkansas Department of Correction's supervisor have been dismissed and Plaintiff is no longer incarcerated as set forth in the Prison Litigation Reform Act 42 USC 1997(e)(a). (Docket Entry #94).
The Court granted Plaintiffs Motion (Docket Entry #95) and the Amended Complaint was filed on May 5, 2010 (Docket Entry #96). Plaintiff alleged in her Amended Complaint that she was a Pulaski County, Arkansas resident and no longer a prisoner (Paragraph 3, Docket Entry #96). Defendant Turensky admitted Plaintiff was formerly incarcerated in the McPherson Unit (Docket Entry #98). She also alleged in Paragraph 10 of the Amended Complaint (Docket Entry #96) as follows:
Because she is no longer a prisoner as defined in 42 U.S.C. 1997, the Prison Litigation Reform Act no longer applies to her claims, or to her damages or attorneys' fees.
Based on the foregoing and the previous post release amendments, Plaintiff should not be found to be a prisoner for a deprivation that occurred while she was a patient in the Newport Hospital. None of the previous conditions of confinement allegations that occurred at the McPherson Unit remained in this lawsuit when the Second Amended Complaint was filed.
7

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 8 of 10
While the Eighth Circuit Court of Appeals has not ruled on the issue of the effect of a post release amended complaint as to applicability of the PLRA, there is adequate authority from other jurisdictions. Barnes v. Briley, 420 F.3d 673 (7th Cir. 2005); Minix v. Pazera, 2007 WL 4233455, *2-3 (N.D. Ind., Nov. 28, 2007) (holding that filing of amended complaint after release was equivalent to filing a new complaint, and ex-prisoner need not have met the exhaustion requirement; amendment reasserted a federal claim that had been dismissed); Morris v. Eversley supra, 343 F.Supp. 2d 234 (S.D.N.Y. 2004); Gibson v. Commissioner of Mental Health, 2006 WL 1234971, *6 (S.D.N.Y., May 8, 2006) (rejecting as "victory of form over substance" dismissal for nonpayment of filing fee under PLRA where the prisoner had been released and his amended complaint was offered when he was no longer a prisoner), relief from judgment denied, 2006 WL 2192865 (S.D.N.Y., Aug. 2, 2006); Prendergast v. Janecka, 2001 WL 793251, *1 (E.D.Pa., July 10, 2001) (holding that the PLRA ceases to apply when a post-release amended complaint is filed); Jackson v. Traquina, __ F.Supp.2d ___, 2009 WL 3296677, *2 (E.D.Cal. 2009) (treating amended complaint as commencing action for exhaustion purposes because amendment drastically changed action, from punitive class action for injunction to action for plaintiffs own damages); see also Segalow v. County ofBucks, 2004 WL 1427137, *1 (E.D.Pa., June 24, 2004).
In regards to the legal effect when a Plaintiff voluntarily amends a complaint, the Eighth Circuit has held as follows:
It is well-established that an amended complaint supercedes an original complaint and renders the original complaint without legal effect. See Washer v. Bullitt County, 110 U.S. 558, 562, 4 S.Ct. 249, 28 L.Ed. 249 (1984). Atlas Van Lines v. Karnes> 209 F.3d 1064, 1067 (8th Cir. 2000)
Also see Wireless Telephone Federal Cost Recovery Fees Litigation, 396 F.3d 922 (8th Cir. 2005).
8

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 9 of 10
CONCLUSION Shawanna Nelson filed this lawsuit and the ADC policy and type of shackles used for pregnant inmates were modified. The ADC policies existing at the time also prohibited use of shackles on inmates in the final stages of delivery. Plaintiffs lawsuit was difficult and brought attention to the practice of guards shackling inmates in the final stages of labor. Her lawsuit was not a frivolous lawsuit and took six (6) years to pursue this issue. Officer Turensky was not made a party to this suit until after plaintiff s release from prison. Plaintiff amended her complaint several times and obtained leave from the court to do so each time. The cause pursued by Shawanna Nelson was just. The fees requested for six (6) years to pursue this cause are fair and reasonable. Plaintiff respectfully requests that the fees presented be awarded pursuant to 42 U.S.C. § 1988.
Respectfully submitted, SHAWANNA NELSON, Plaintiff
By: lsi Paul J. James Paul 1. James, Ark. Bar No.: 83091 James, Carter & Coulter, PLC P.O. Box 907 Little Rock, AR 72203 (501) 372-1414 (501) 372-1659 (facsimile) Email: pii@jamescarterIaw.com
9

Case 1:04-cv-00037-JMM Document 120 Filed 08/13/10 Page 10 of 10
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the above and foregoing was served this 13th day of August, 2010, via electronic mail to: Alan R. Humphries Humphries & Lewis Post Office Box 20670 White Hall, AR 71612 ahumphrieshl0{sbcglobal.net Christine A. Cryer Arkansas Attorney General's Office Catlett-Prien Tower Building 323 Center Street, Suite 200 Little Rock, AR 72201 Christine .cryer@arkansasag.gov
lsi Paul J. Jmnes Paul J. James
10

 
 Case 1:04-cv-00037-JMM Document 127 Filed 09/13/10 Page 1 of 5
THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS BATESVILLE DIVISION

SHAWANNA NELSON

PLAINTIFF

VS.

CASE NO. 1:04CV00037 JMM

PATRICIA TURNESKY

DEFENDANT

ORDER Pending before the Court is plaintiff’s Motion for Attorneys’ Fees (#119) filed pursuant to Federal Rule of Civil Procedure 54(d)(2)(A) and Local Rule for the Eastern and Western Districts of Arkansas 54.1. At the time plaintiff filed her 42 U.S.C. § 1983 Complaint on April 15, 2004, and her First Amended Complaint naming Turnesky as a defendant on June 1, 2004, she was in the custody of the Arkansas Department of Correction (“ADC”). The complaint sought damages against several defendants based on her treatment during the delivery of her child, which included having her leg shackled to the bed by ADC officer Turnesky during labor. Plaintiff was released on parole on June 23, 2004. Magistrate Judge Jerry Cavaneau allowed service upon Turnesky on July 28, 2004. Turnesky filed her answer on August 9, 2004. Plaintiff filed a Second Amended Complaint on May 5, 2010, asserting an additional liability theory but adding no new factual allegations. .
1

Case 1:04-cv-00037-JMM Document 127 Filed 09/13/10 Page 2 of 5
Summary judgment was granted on several of plaintiff’s claims resulting in dismissal of various defendants. On October 2, 2009, an en banc opinion by the Court of Appeals for the Eighth Circuit dismissed an additional defendant based upon qualified immunity. The case went to trial on July 14th and 15th, 2010, on plaintiff’s only remaining claim – – deliberate indifference to her medical needs – – against Turnesky, the only remaining defendant.1 After hearing the evidence and receiving instructions from the Court, the jury returned a verdict in favor of plaintiff awarding her $1.00 in damages. Plaintiff did not seek or receive any declaratory or injunctive relief from the Court.
Federal Rule of Civil Procedure Rule 54(d)(2) states that “[a] claim for attorney’s fees . . . must be made by motion . . . specifying the judgment and the statute, rule, or other grounds entitling the movant to the award.” Plaintiff is entitled to attorney’s fees pursuant to 42 U.S.C. § 1988(b), which gives courts discretion to award prevailing parties reasonable attorney’s fees for any action or proceeding brought to enforce a provision of § 1983. See § 42 U.S.C. § 1988(b).
Plaintiff is a “prevailing party” as contemplated by § 1988(b). See Keup v. Hopkins, 596 F.3d 899, 905 (8th Cir. 2010) (plaintiff prevailing party based upon grant of nominal damages) (citing Ollis v. HearthStone Homes, Inc., 495 F.3d 570, 576 (8th Cir. 2007) (affirming the district court's holding that a plaintiff was a prevailing party even though he received only nominal damages because “[r]egardless of the amount of [the] judgment, [the plaintiff] was the prevailing party and, thus, is entitled to an award of attorney fees”) (citing Farrar v. Hobby, 506 U.S. 103, 112, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“[A] plaintiff who wins nominal damages is a
1During the pretrial conference, plaintiff abandoned her punitive damage claim and all claims based on physical injury, with the exception of the claim based on the additional pain she suffered due to being shackled by Turnesky during labor.
2

Case 1:04-cv-00037-JMM Document 127 Filed 09/13/10 Page 3 of 5
prevailing party under § 1988.”)). Because plaintiff was a prisoner at the time she filed her complaint, the Prison Litigation
Reform Act (“PLRA”) applies to her case, and under the PLRA, an award of attorney's fees pursuant to § 1988 is limited to 150 percent of the damages awarded if damages are monetary only. See 42 U.S.C. § 1997e(d)(2); Royal v. Kautzky, 375 F.3d 720, 725 (8th Cir. 2004) (referring to the statute as “awkwardly worded” but meaning that the PLRA “allows an award of attorney fees for 150% of the damage award”); Keup, 596 F.3d at 905 (8th Cir. 2010) (“When the plaintiff only receives nominal damages of $1.00, § 1997e(d)(2) caps attorney fees at $1.50”); Foulk v. Charrier, 262 F.3d 687, n. 17 (8th Cir. 2001) (“[I]f non-monetary relief is ordered . . . the attorney's fees cap in 42 U.S.C. § 1997e(d)(2) does not apply”).
Plaintiff seeks to avoid the PLRA’s limitation on attorney’s fees by arguing that the PLRA does not apply to her because: (1) she was not a prisoner when the defendant was served or answered the Second Amended Complaint; (2) she was not a prisoner at the time of trial; and (3) she pled in her Second Amended Complaint that the PLRA did not apply to her complaint based upon changed circumstances.2
The Eighth Circuit has consistently held that under 42 U.S.C. § 1997e(d)(1), the plaintiff’s status at the time of the filing of the complaint determines whether the PLRA applies. See Nerness v. Johnson, 401 F.3d 874, 876 (8th Cir. 2005) (42 U.S.C. § 1997e(a) exhaustion requirement does not apply when plaintiff files complaint after being released from prison)(citing Doe v. Washington County, 150 F.3d 920, 924 (8th Cir.1998)); Acevedo v. Ferguson, 2010 WL
2In her answer to the Second Amended Complaint, defendant denied plaintiff’s assertion regarding the applicability of the PLRA.
3

Case 1:04-cv-00037-JMM Document 127 Filed 09/13/10 Page 4 of 5
1856239 (W.D. Ark. May 4, 2010) (adopting Magistrate Judge’s report and recommendation holding that status of plaintiff at time he files suit determines if PLRA applies); see also Perez v. Westchester County Dept. of Corrections, 587 F.3d 143, 154-55 (2d Cir. 2009) (Court rejected reasoning in Morris v. Eversley, 343 F.Supp. 2d 234 (S.D.N.Y.) and held that PLRA fee cap applies to prisoner-plaintiffs incarcerated when they filed suit but who have since been released); Harris v. Gardner, 216 F.3d 970 (11th Cir. 2000) (en banc) (PLRA applicable to prisoners who were confined at time of filing, but later released before entry of judgment).
Plaintiff relies on Morris v. Eversley, 343 F.Supp. 2d 234 (S.D.N.Y. 2004) which holds that the PLRA does not to apply to a prisoner-plaintiff who was released shortly after filing her complaint and did not engage counsel until after her release. Id. at 242. The Court is not persuaded by the reasoning in this case and cannot reconcile it with the cases in the Eighth Circuit that clearly indicate that the status of a plaintiff at the time she files the complaint determines whether the PLRA applies. It is undisputed that plaintiff filed her complaint against Turnesky while she was still in custody.
The filing of the Second Amended Complaint does not change the result. Rule 15(c)(1) of the Federal Rules of Civil Procedure allows an amended complaint to relate back when the claim in the amended pleading “arose out of the conduct, transaction, or occurrence set out – or attempted to be set out – in the original [complaint].”3
Since the Court finds that the PLRA does apply to plaintiff’s complaint, there is no need
3If plaintiff’s Second Amended Complaint did not relate back to the First Amended Complaint and the original Complaint, plaintiff would be facing statute of limitations issues. See Miller v. Norris, 247 F.3d 736, 739 (8th Cir. 2001) (three-year statute of limitations applies to section 1983 actions filed in Arkansas).
4

Case 1:04-cv-00037-JMM Document 127 Filed 09/13/10 Page 5 of 5
to address plaintiff’s remaining arguments regarding the appropriateness of the requested hourly rates or the reasonableness and proportionality of the requested fees. Accordingly, the Court awards plaintiff attorney’s fees in the amount of $1.50.4
Federal Rule of Civil Procedure Rule 54(d)(1) states that costs should be allowed to the prevailing party. Defendant does not object to plaintiff recovering relevant documented costs.
Costs recoverable under Rule 54(d) are specified in 28 U.S.C. § 1920. See also Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494 (1987). Pursuant to § 1920, the record, and plaintiff’s documentation, the Court will award costs to Paul James in the amount of $573.26, costs to Elizabeth Alexander in the amount $1,049.94, and to Cathleen Compton in the amount of $150.00 (filing fee). The Court will not award any costs to Holly Dicks as she never entered an appearance on behalf of plaintiff.
IT IS SO ORDERED THIS 13 day of September , 2010.
James M. Moody United States District Judge
4Plaintiff’s counsel may apply for additional costs and expenses to be paid from the Court’s Library Fund. See Local Rule 83.6.
5

 
 Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 1 of 11
CLOSED, JURY, PRD, REFER
U.S. District Court Eastern District of Arkansas (Batesville) CIVIL DOCKET FOR CASE #: 1:04−cv−00037−JMM

Nelson v. Correctional Med Svc, et al Assigned to: Judge James M. Moody Demand: $0 Case in other court: USCA8, 07−02481 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Shawanna Nelson

Date Filed: 04/15/2004 Date Terminated: 07/16/2010 Jury Demand: Plaintiff Nature of Suit: 555 Prison Condition: Civil Rights Jurisdiction: Federal Question
represented by Cathleen V. Compton Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−2007 Fax: (501) 374−5118 Email: vicki@cathicomptonlaw.com TERMINATED: 11/04/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eileen Woods Harrison Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−8112 Email: Eileen.Harrison@arkansasag.gov TERMINATED: 05/18/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paul J. James James, Carter &Coulter, P.L.C. Post Office Box 907 Little Rock, AR 72203 (501) 372−1414 Email: pjj@jamescarterlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Correctional Medical Services TERMINATED: 06/11/2007
Defendant

represented by Alan R. Humphries Humphries &Lewis Post Office Box 20670 White Hall, AR 71612 (870) 247−7035 Email: ahumphrieshl@sbcglobal.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 2 of 11

Max Mobley Doctor TERMINATED: 06/11/2007

Christine A. Cryer Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 (501) 683−0958 Email: Christine.cryer@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jane Does Nurses for CMS TERMINATED: 01/31/2005

represented by Alan R. Humphries (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Larry Norris Director of the ADC TERMINATED: 11/19/2009

represented by Chilesa Jones Ready Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 (501) 682−1315 TERMINATED: 02/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine A. Cryer (See above for address) TERMINATED: 11/19/2009 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Patricia Turnesky Officer, (originally sued as Turenski)

represented by Chilesa Jones Ready (See above for address) TERMINATED: 02/07/2005 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine A. Cryer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Scott P. Richardson Arkansas Attorney General's Office Catlett−Prien Tower Building 323 Center Street Suite 200 Little Rock, AR 72201−2610 501−682−2007 Email: scott.richardson@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Mary Matthews TERMINATED: 01/10/2006

represented by Alan R. Humphries (See above for address) TERMINATED: 01/10/2006

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 3 of 11
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/15/2004 05/10/2004 05/10/2004 05/13/2004 05/14/2004 05/19/2004 05/25/2004 06/01/2004 06/01/2004 06/01/2004 06/10/2004 07/28/2004
08/09/2004 08/13/2004 01/14/2005
01/20/2005

# Docket Text
1 COMPLAINT with jury demand; summons issued and returned to Attorney; $150.00 filing fee paid, receipt #113485 (former empl) (Entered: 04/15/2004)
2 MOTION by defendant to dismiss (vjt) (Entered: 05/10/2004)
3 BRIEF by defendant in support of motion to dismiss [2−1] (vjt) (Entered: 05/10/2004)
4 ATTORNEY APPEARANCE by Eileen Harrison for pltf (vjt) (Entered: 05/14/2004)
5 MOTION by pltf for extension of time to respond to motion to dismiss (vjt) (Entered: 05/14/2004)
6 ORDER (DOC); that this case is reassigned to Judge James M. Moody and referred to Mag. Judge Jerry W. Cavaneau (cc: all counsel) (vjt) (Entered: 05/19/2004)
7 ORDER by Mag. Judge Jerry W. Cavaneau granting motion for extension of time to respond to motion to dismiss [5−1] [2−1] until 6/1/04 (cc: all counsel) (tjj) (Entered: 05/26/2004)
8 RESPONSE by plaintiff to motion to dismiss [2−1] (tjj) (Entered: 06/02/2004)
9 MEMORANDUM BRIEF by plaintiff in support of motion response [8−1] (tjj) (Entered: 06/02/2004)
10 AMENDED complaint [1−1] by plaintiff with jury demand; adding Max Mobley, Jane Does, Larry Norris and Turenski (tjj) (Entered: 06/02/2004)
11 ANSWER TO FIRST AMENDED COMPLAINT by Correctional Med Svc (tjj) (Entered: 06/10/2004)
12 ORDER by Mag. Judge Jerry W. Cavaneau service is now appropriate for defts Mobley, Norris and Turenski; because the $150.00 statutory filing fee has been paid in full, pltf's counsel may now proceed to effect service on these defts; should defts subsequently need copies of other filed documents they are available either from the Clerk's office or counsel for defts Mobley, Norris and Turenski may access the PACER system for the USDC to obtain copies of the same; additionally in her amended complaint pltf has named as defts "Jane Does Nurses for CMS"; pltf's counsel should attempt to determine the identity of these defts through the use of discovery; if no motion to amend or join the identified parties as defts is made within 120 days subject to extension the Jane Doe defts will be dismissed (cc: all counsel) (tjj) (Entered: 07/29/2004)
13 ANSWER by defts Larry Norris and Turenski (tjj) Modified on 08/18/2004 (Entered: 08/10/2004)
14 ORDER by Mag. Judge Jerry W. Cavaneau deft Patricia Turnesky has supplied her correct or complete name; the Clerk is directed to change the style of the case to correct the name of the deft (cc: all counsel) (tjj) (Entered: 08/16/2004)
15 Partial Recommended Disposition by Mag. Judge Jerry W. Cavaneau recommending deft CMS' motion to dismiss [2−1] be denied; pltf's claims against defts "Jane Does Nurses for CMS" should be dismissed without prejudice pursuant to Fed. R. Civ. P. 4(m); the portion of pltf's request for permanent injunction prohibiting further retaliation from deft Turnesky should be held moot; pltf's case should be permitted to proceed against defts CMS, Mobley, Norris and Turnesky (tjj) (Entered: 01/18/2005)
16 MOTION by defts Larry Norris and Patricia Turnesky to substitute attorney Christine A. Cryer in place of Chilesa Jones (tjj) (Entered: 01/21/2005)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 4 of 11

01/31/2005
02/07/2005 02/07/2005 02/07/2005
02/23/2005 02/28/2005 04/25/2005
04/28/2005 05/03/2005 05/10/2005 05/10/2005 05/13/2005 05/16/2005 05/18/2005
05/26/2005
05/26/2005 06/16/2005 07/21/2005 07/21/2005 01/04/2006

17 ORDER by Judge James M. Moody adopting in their entirety as this Court's findings Mag Judge Cavaneau's Findings and Recommended Partial Disposition [15−1]; deft CMS motion to dismiss is denied [2−1]; pltf's claims against defts' Jane Does Nurses for CMS are dism w/o prej; the portion of pltf's request for permanent injunction prohibiting further retaliation from deft Turnesky is moot; pltf's case shall proceed against defts CMS, Mobley, Norris &Turnesky (cc: all counsel) (rjh) (Entered: 01/31/2005)
18 ANSWER by defendant Correctional Med Svc to amended complt (bmt) (Entered: 02/07/2005)
19 ANSWER TO FIRST AMENDED COMPLAINT by separate defendants Larry Norris and Patricia Turnesky (bkj) (Entered: 02/08/2005)
20 ORDER by Mag. Judge Jerry W. Cavaneau granting motion to substitute attorney Christine A. Cryer in place of Chilesa Jones Ready [16−1] (cc: all counsel) (bmt) (Entered: 02/08/2005)
SUMMONS re−issued on Mary Mathews (bkp) (Entered: 02/24/2005)
21 ANSWER by Mary Matthews to First Amended Complaint (bkp) (Entered: 03/01/2005)
22 ORDER by Mag. Judge Jerry W. Cavaneau that counsel are directed to immediately provide proof of service on deft Mobley with the Court w/in 10 days of this order's entry date, or it will be recommended that deft Mobley be dismissed (cc: all counsel) (bmt) (Entered: 04/26/2005)
SUMMONS issued as to Max Mobley (tjj) (Entered: 04/28/2005)
23 RETURN OF SERVICE executed upon defendant Max Mobley on 4/28/05 (bkp) (Entered: 05/04/2005)
24 MOTION by separate deft Max Mobley to dismiss (vjt) (Entered: 05/12/2005)
25 BRIEF by deft Max Mobley in support of motion to dismiss [24−1] (vjt) (Entered: 05/12/2005)
26 MOTION by plaintiff to withdraw attorney Eileen Woods Harrison (bkp) (Entered: 05/16/2005)
27 MOTION by plaintiff to extend time to respond to motion to dismiss (bkp) (Entered: 05/17/2005)
28 ORDER by Mag. Judge Jerry W. Cavaneau granting motion to withdraw attorney Eileen Woods Harrison [26−1] for Shawanna Nelson (cc: all counsel) (bkp) (Entered: 05/18/2005)
29 ORDER by Mag. Judge Jerry W. Cavaneau granting motion to extend time to respond to motion to dismiss for 30 days from the date of this order [27−1] (cc: counsel) (bkp) (Entered: 05/27/2005)
Docket Modification (Utility Event) resp to motion to dismiss is due w/in 30 days from date of order [24−1] [29−1] (bmt) (Entered: 06/15/2005)
30 RESPONSE by plaintiff Shawanna Nelson to separate deft Max Mobley's motion to dismiss [24−1] (rjh) (Entered: 06/16/2005)
MOTIONS 24 Motion to Dismiss REFERRED to Magistrate Judge (conversion repair) (mar ) (Entered: 07/21/2005)
Utility Event referring motions to Magistrate Judge (CM/ECF conversion). (mar, ) (Entered: 07/21/2005)
31 PROPOSED FINDINGS AND RECOMMENDED PARTIAL DISPOSITION that deft Mobley's motion to dismiss 24 be denied on all grounds; Objections to RRdue by 1/17/2006. Signed by Judge Jerry W. Cavaneau on 1/4/06. (vjt) (Entered: 01/04/2006)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 5 of 11

01/09/2006 01/10/2006 01/10/2006 01/20/2006 01/23/2006 01/27/2006 03/12/2006
03/13/2006 06/20/2006 06/21/2006 06/29/2006 07/17/2006
11/21/2006 11/21/2006 11/21/2006 11/21/2006 11/22/2006 11/22/2006 11/22/2006

32 MOTION to Dismiss PARTY DEFENDANT MARY MATTHEWS by Shawanna Nelson. (Compton, Cathleen) (Entered: 01/09/2006)
33 ORDER granting pltf's 32 Motion to Dismiss party deft Mary Matthews. Signed by Judge James M Moody on 1/10/06. (tlw) (Entered: 01/10/2006)
*** Party deft Mary Matthews terminated. (tlw) (Entered: 01/10/2006)
34 ORDER ADOPTING 31 Partial Report and Recommendations that the motion to dismiss filed by deft. Mobley is denied. Signed by Judge James M Moody on 1/20/06. (bkp, ) (Entered: 01/20/2006)
35 ANSWER to Amended Complaint by Max Mobley.(Cryer, Christine) (Entered: 01/23/2006)
36 MEMO TO FILE by Judge Jerry W. Cavaneau that this case is ready to be set for trial. (vjt) (Entered: 01/27/2006)
37 SCHEDULING ORDER: Jury Trial set for 9/11/2006 at 9:15 AM in Batesville Courtroom # 252 before Judge James M. Moody. Discovery due by 7/13/2006. Motions due by 7/24/2006. Joinder of Parties due by 6/13/2006. Pretrial Disclosure Sheet due by 8/22/2006. Signed At the Direction of the Court by Marge Higginbotham on 3/12/06. (mah) (Entered: 03/12/2006)
38 MOTION to Continue by Correctional Medical Services. (Humphries, Alan) (Entered: 03/13/2006)
39 RESPONSE to Motion re 38 MOTION to Continue trial date filed by Shawanna Nelson. (Compton, Cathleen) (Entered: 06/20/2006)
40 Deficiency Letter from Clerk of Court notifying party that 39 Response to Motion for Continuance lacks a signature (General Order 53). (thd) (Entered: 06/21/2006)
41 RESPONSE to Motion re 38 MOTION to Continue filed by Shawanna Nelson. (Compton, Cathleen) (Entered: 06/29/2006)
42 SCHEDULING ORDER (DOC): Motions terminated: 38 MOTION to Continue filed by Correctional Medical Services. Jury Trial rescheduled for 1/22/2007 at 9:15 AM in Batesville Courtroom #252 before Judge James M. Moody. Discovery due by 10/30/2006; Motions due by 11/22/2006; Pretrial Disclosure Sheet due by 12/22/2006; Amended Pleadings due by 9/29/2006; Status Report due by 11/22/2006. Signed by D. Jackson at the Direction of the Court on 07/17/06. (dmj) (Entered: 07/17/2006)
43 MOTION for Summary Judgment by Correctional Medical Services. (Attachments: # 1 # 2)(Humphries, Alan) (Entered: 11/21/2006)
44 BRIEF IN SUPPORT filed by Correctional Medical Services re 43 Motion for Summary Judgment. (Humphries, Alan) (Entered: 11/21/2006)
45 STATEMENT OF FACTS (Local Rule 56.1) re 44 Brief in Support, 43 Motion for Summary Judgment filed by Correctional Medical Services. (Humphries, Alan) (Entered: 11/21/2006)
46 STATUS REPORT by Correctional Medical Services. (Humphries, Alan) (Entered: 11/21/2006)
47 MOTION for Extension of Time to File Response/Reply as to 43 MOTION for Summary Judgment by Shawanna Nelson. (Compton, Cathleen) (Entered: 11/22/2006)
48 STATUS REPORT by Shawanna Nelson. (Compton, Cathleen) (Entered: 11/22/2006)
49 MOTION for Summary Judgment by Max Mobley, Larry Norris, Patricia Turnesky. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N# 15 Exhibit O# 16 Exhibit P# 17 Exhibit Q)(Boozer, Christine) (Entered: 11/22/2006)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 6 of 11

11/22/2006 11/22/2006 11/22/2006 11/29/2006 11/29/2006
12/05/2006 12/05/2006 12/05/2006 12/05/2006 12/13/2006 12/13/2006
12/18/2006 01/04/2007 01/04/2007 01/04/2007
01/08/2007 01/08/2007 04/24/2007

50 BRIEF IN SUPPORT filed by Max Mobley, Larry Norris, Patricia Turnesky re 49 Motion for Summary Judgment,. (Boozer, Christine) (Entered: 11/22/2006)
51 STATEMENT OF FACTS (Local Rule 56.1) re 49 Motion for Summary Judgment,, 50 Brief in Support filed by Max Mobley, Larry Norris, Patricia Turnesky. (Boozer, Christine) (Entered: 11/22/2006)
52 STATUS REPORT by Max Mobley, Larry Norris, Patricia Turnesky. (Boozer, Christine) (Entered: 11/22/2006)
53 MOTION for Extension of Time to File Response/Reply as to 49 MOTION for Summary Judgment by Shawanna Nelson. (Compton, Cathleen) (Entered: 11/29/2006)
54 ORDER granting 47 53 Motions for Extension of Time to File Response re 43 49 Motions for Summary Judgment. Plaintiff is granted until 12/18/06 in which to file her responses to the motions for summary judgment. Signed by Judge Jerry W. Cavaneau on 11/29/06. (bmt) (Entered: 11/29/2006)
55 MOTION for Order To Make One Consolidated Brief in Response by Shawanna Nelson. (Compton, Cathleen) (Entered: 12/05/2006)
56 RESPONSE to Motion re 55 MOTION for Order To Make One Consolidated Brief in Response filed by Max Mobley, Larry Norris, Patricia Turnesky. (Boozer, Christine) (Entered: 12/05/2006)
57 RESPONSE to Motion re 55 MOTION for Order To Make One Consolidated Brief in Response filed by Correctional Medical Services. (Humphries, Alan) (Entered: 12/05/2006)
58 SCHEDULING ORDER: Jury Trial scheduled 1/22/07 is reset for 7/30/2007 at 9:15 AM in Batesville Courtroom #252 before Judge James M. Moody. Signed by D. Jackson at the Direction of the Court on 12/5/06. (dmj) (Entered: 12/05/2006)
59 Second MOTION for Extension of Time to File Response/Reply as to 43 MOTION for Summary Judgment, 49 MOTION for Summary Judgment by Shawanna Nelson. (Compton, Cathleen) (Entered: 12/13/2006)
60 ORDER granting pltf's motion 55 ; pltf is directed to file separate responses to each summary judgment motion but file a consolidated brief as long as the brief address each issue raised as to each deft named. Signed by Judge Jerry W. Cavaneau on 12/13/06. (vjt) (Entered: 12/13/2006)
61 ORDER granting pltf's motion 59 for extension of time, for an additional twenty days, to respond to defts' motions 43 49 for summary judgment. Signed by Judge Jerry W. Cavaneau on 12/18/06. (vjt) (Entered: 12/18/2006)
62 RESPONSE to Motion re 49 MOTION for Summary Judgment filed by Shawanna Nelson. (Compton, Cathleen) (Entered: 01/04/2007)
63 RESPONSE to Motion re 43 MOTION for Summary Judgment by CMS filed by Shawanna Nelson. (Compton, Cathleen) (Entered: 01/04/2007)
64 BRIEF IN SUPPORT filed by Shawanna Nelson re 62 Response to Motion, 63 Response to Motion. (Attachments: # 1 Document Matthews depo# 2 Document Smith depo# 3 Document Turensky depo# 4 Document Nelson depo# 5 Document Frazier Affidavit# 6 Document Order# 7 Document Order# 8 Document Agreement# 9 Document Mobley depo# 10 Document Norris depo)(Compton, Cathleen) (Entered: 01/04/2007)
65 REPLY re 64 Brief in Support, Reply Brief by Correctional Medical Services. (Humphries, Alan) (Entered: 01/08/2007)
66 REPLY re 64 Brief in Support, by Max Mobley, Larry Norris, Patricia Turnesky. (Boozer, Christine) (Entered: 01/08/2007)
67 MOTION to Deem Admitted ADC Defendants Statement of Facts by Max Mobley, Larry Norris, Patricia Turnesky (Boozer, Christine) (Entered: 04/24/2007)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 7 of 11

05/25/2007
06/05/2007 06/05/2007 06/05/2007
06/06/2007 06/08/2007 06/11/2007 06/22/2007 06/22/2007

68 PARTIAL REPORT AND RECOMMENDATIONS recommeding that the ADC Defendants' 67 Motion to have their statement of facts deemed admitted be denied. Defendant CMS's 43 Motion for Summary Judgment be granted. The ADC Defendants' 49 Motion for Summary Judgment be granted in part and denied in part. Plaintiff's claims for denial of medical care by Defendant Tumesky in connnection with a missed medical appointment and retaliation by Defendant Tumesky be dismissed w/o prejudice on administrative exhaustion grounds. Plaintiff's claims against Defendant CMS be dismissed in their entirety w/prejudice. Plaintiff's claims against Defendant Mobley be dismissed in their entirety w/prejudice. Plaintiff's labor and childbirth claims should be permitted to proceed against Defendants Norris and Tumesky. Plaintiff's claim for monetary damages against Defendants Norris and Tumesky in an official capacity only is barred by the Eleventh Amendment. Case should remain scheduled for jury trial on 7/30/07. Objections to RRdue by 6/8/2007. Signed by Judge Jerry W. Cavaneau on 5/25/07. (bmt) (Entered: 05/25/2007)
69 OBJECTIONS by Shawanna Nelson re 68 Partial Report and Recommendations,,,, (Compton, Cathleen) (Entered: 06/05/2007)
70 AMENDED DOCUMENT by Shawanna Nelson. Amendment to 69 Objection To Proposed Findings and Recommended Partial Disposition (Compton, Cathleen) (Entered: 06/05/2007)
71 MOTION for Extension of Time to File Response/Reply as to 68 PARTIAL REPORT AND RECOMMENDATIONS re 49 MOTION for Summary Judgment filed by Larry Norris, Max Mobley, Patricia Turnesky, 43 MOTION for Summary Judgment filed by Correctional Medical Services, 67 MOTION to Deem Admitted ADC Defendants StatemenPARTIAL REPORT AND RECOMMENDATIONS re 49 MOTION for Summary Judgment filed by Larry Norris, Max Mobley, Patricia Turnesky, 43 MOTION for Summary Judgment filed by Correctional Medical Services, 67 MOTION to Deem Admitted ADC Defendants StatemenPARTIAL REPORT AND RECOMMENDATIONS re 49 MOTION for Summary Judgment filed by Larry Norris, Max Mobley, Patricia Turnesky, 43 MOTION for Summary Judgment filed by Correctional Medical Services, 67 MOTION to Deem Admitted ADC Defendants StatemenPARTIAL REPORT AND RECOMMENDATIONS re 49 MOTION for Summary Judgment filed by Larry Norris, Max Mobley, Patricia Turnesky, 43 MOTION for Summary Judgment filed by Correctional Medical Services, 67 MOTION to Deem Admitted ADC Defendants StatemenPARTIAL REPORT AND RECOMMENDATIONS re 49 MOTION for Summary Judgment filed by Larry Norris, Max Mobley, Patricia Turnesky, 43 MOTION for Summary Judgment filed by Correctional Medical Services, 67 MOTION to Deem Admitted ADC Defendants Statemen by Max Mobley, Larry Norris, Patricia Turnesky (Boozer, Christine) (Entered: 06/05/2007)
72 ORDER granting 71 Defendants Larry Norris, Max Mobley, and Patricia Turensky's Motion for Extension of Time; these Defendants have up to and including, Friday, June 8, 2007 in which to file any objections to the Magistrate Judge's 68 Proposed Findings and to respond to 69 Plaintiff's objections filed on 6/6/2007. Signed by Judge James M Moody on 6/6/2007. (smb) (Entered: 06/06/2007)
73 OBJECTIONS by Max Mobley, Larry Norris, Patricia Turnesky re 68 Partial Report and Recommendations,,,, (Attachments: # 1 Exhibit Nelson deposition pages)(Boozer, Christine) (Entered: 06/08/2007)
74 ORDER ADOPTING Proposed Findings and Recommended Partial Disposition 68 : Plaintiff's claims against parties CMS and Mobley are dismissed. Signed by Judge James M Moody on 6/11/07. (bkp) (Entered: 06/12/2007)
75 NOTICE OF INTERLOCUTORY APPEAL as to 74 Order Adopting Report and Recommendations by Larry Norris, Patricia Turnesky. (Boozer, Christine) (Entered: 06/22/2007)
76 NOTIFICATION OF APPEAL and NOA SUPPLEMENT as to 74 Order Adopting Report and Recommendations, 68 PARTIAL REPORT AND RECOMMENDATIONS 75 Notice of Interlocutory Appeal. (NOTIFICATION TO COUNSEL: FORM A &B SHOULD BE SUBMITTED TO EIGHTH CIRCUIT

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 8 of 11

06/22/2007 06/25/2007 06/26/2007 06/27/2007 07/05/2007 07/18/2008 07/18/2008 08/28/2008 10/02/2009
10/02/2009 10/23/2009 10/30/2009 11/01/2009 11/04/2009
11/05/2009 11/19/2009

COURT OF APPEALS CLERK'S OFFICE). (dac) (Entered: 06/22/2007)
*** COA BATCH RECEIPT of Notice of Appeal and related supporting documents sent on: Fri Jun 22 15:50:11 CDT 2007 (COA2, ) (Entered: 06/22/2007)
77 USCA Appeal Fees received $ 455 receipt number LIT006589 re 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky (dac) (Entered: 06/26/2007)
*** COA BATCH RECEIPT of $455 Appellate Filing Fees Payment re. Notice of Appeal and related supporting documents sent on: Tue Jun 26 15:09:57 CDT 2007 (Collins, Doris) (Entered: 06/26/2007)
78 USCA Docketing Letter as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky. USCA Case Number 07−2481 (dac) (Entered: 06/27/2007)
79 ORDER canceling the jury trial scheduled July 30, 2007, pending the outcome of the interlocutory appeal. Signed by Judge James M. Moody on 7/5/07. (dmj) (Entered: 07/05/2007)
80 OPINION of USCA as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky (dac) (Entered: 07/18/2008)
81 USCA JUDGMENT as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky. Judgment of the district court is reversed and the cause is remanded to the district court for proceedings consistent with the opinion of this court (dac) (Entered: 07/18/2008)
82 ORDER of USCA, plaintiff−appellee's petition for rehearing en banc is granted. The opinion and judgment of this Court filed on July 18, 2008, are vacated as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky (dac) (Entered: 08/28/2008)
83 OPINION of USCA judgment of the district court denying summary judgment based on qualified immunity to Officer Turensky is affirmed but its judgment denying summary judgment based on qualified immunity to Director Norris is reversed. The case is remanded to the district court for entry of judgment in favor of Director Norris and for trial of the Eighth Amendment issues raised by Shawanna Nelson against Officer Turensky. as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky (dac) (Entered: 10/02/2009)
84 USCA JUDGMENT as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky. Judgment of the district court in this cause is affirmed in part, reversed in part, and remanded to the district court for proceedings consistent with the opinion of this court. (dac) (Entered: 10/02/2009)
85 MANDATE of USCA In accordance with the opinion and judgment of 10/02/2009, as to 75 Notice of Interlocutory Appeal filed by Larry Norris, Patricia Turnesky (dac) (Entered: 10/23/2009)
86 MOTION to Withdraw as Attorney by Shawanna Nelson (Compton, Cathleen) (Entered: 10/30/2009)
87 MOTION to Substitute Attorney by Shawanna Nelson (Compton, Cathleen) (Entered: 11/01/2009)
88 ORDER granting motion 86 for Cathleen V. Compton to withdraw as counsel for pltf, and 87 motion to substitute Paul James as counsel of record for pltf in place of Cathleen V. Compton; Paul James is directed to file an entry of appearance in this matter within five days of the entry of this Order. Signed by Magistrate Judge Jerry W. Cavaneau on 11/4/09. (vjt) (Entered: 11/04/2009)
89 NOTICE of Appearance by Paul J. James on behalf of Shawanna Nelson (James, Paul) (Entered: 11/05/2009)
90 JUDGMENT pursuant to 85 USCA Mandate of 10/23/09, judgment is hereby entered in favor of Larry Norris, Director of the ADC. Signed by Judge James M. Moody on 11/19/09. (vjt) (Entered: 11/19/2009)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 9 of 11

02/17/2010
04/08/2010 04/08/2010 04/13/2010 05/03/2010
05/05/2010 05/10/2010
05/12/2010 05/17/2010 06/14/2010 06/15/2010 06/23/2010 06/24/2010
07/08/2010 07/08/2010 07/08/2010 07/12/2010 07/14/2010
07/15/2010

91 SCHEDULING ORDER: Jury Trial is set sometime during the week of 6/7/2010 at 9:15 AM in Batesville Courtroom # 252 before Judge James M. Moody. Pretrial Disclosure Sheet due by 5/7/2010. Status Report due by 4/8/2010. Signed by D. Jackson at the Direction of the Court on 2/17/2010. (dmj) (Entered: 02/17/2010)
92 STATUS REPORT by Shawanna Nelson. (James, Paul) (Entered: 04/08/2010)
93 STATUS REPORT by Patricia Turnesky. (Cryer, Christine) (Entered: 04/08/2010)
94 MOTION for Leave to File Second Amended Complaint by Shawanna Nelson (Attachments: # 1 Exhibit Second Amended Complaint)(James, Paul) (Entered: 04/13/2010)
95 ORDER granting pltf's 94 Motion for Leave to File a Second Amended Complaint; pltf is directed to file her second amended complaint within 7 days of entry of this Order. Signed by Magistrate Judge Jerry W. Cavaneau on 5/3/10. (vjt) (Entered: 05/04/2010)
96 AMENDED COMPLAINT against Patricia Turnesky, filed by Shawanna Nelson(James, Paul) (Entered: 05/05/2010)
97 SCHEDULING ORDER: Due to a conflict with the Court's schedule, the Jury Trial is reset for 7/14/2010 9:15 AM in Batesville Courtroom # 252 before Judge James M. Moody. Pretrial Disclosure Sheet due by 6/14/2010. Status Report due by 5/26/2010. Pretrial Conference set for 7/14/2010 8:30 AM in Batesville Courtroom # 252 before Judge James M. Moody. Signed by D. Jackson at the Direction of the Court on 5/10/2010. (dmj) (Docket text modified on 5/12/2010 to correct the Status Report deadline.) (thd). (Entered: 05/10/2010)
NOTICE OF DOCKET CORRECTION re: 97 Scheduling Order. CORRECTION: The docket text was modified to correct the Status Report deadline to 5/26/2010, as stated in the Order. (thd) (Entered: 05/12/2010)
98 ANSWER to 96 Amended Complaint by Patricia Turnesky.(Cryer, Christine) (Entered: 05/17/2010)
99 PRETRIAL DISCLOSURE SHEET by Patricia Turnesky. (Cryer, Christine) (Entered: 06/14/2010)
100 PRETRIAL DISCLOSURE SHEET by Shawanna Nelson. (James, Paul) (Entered: 06/15/2010)
101 MOTION to Extend Time by Shawanna Nelson (James, Paul) (Entered: 06/23/2010)
102 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 101 Motion to Extend Time. The parties may submit trial briefs, jury instructions and file motions in limine no later than 7/6/2010. Signed by Judge James M. Moody on 6/24/2010. (dmj) (Entered: 06/24/2010)
103 MOTION in Limine by Shawanna Nelson (James, Paul) (Entered: 07/08/2010)
104 MOTION in Limine by Patricia Turnesky (Cryer, Christine) (Entered: 07/08/2010)
105 BRIEF IN SUPPORT filed by Patricia Turnesky re 104 Motion in Limine (Cryer, Christine) (Entered: 07/08/2010)
106 RESPONSE to Motion re 103 MOTION in Limine filed by Patricia Turnesky. (Cryer, Christine) (Entered: 07/12/2010)
(This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) JURY TRIAL BEGUN before Judge James M. Moody in Batesville on 7/14/2010. Twelve jurors seated and sworn. Plaintiff completes her proof. Defendant's proof begins. Court to resume at 9:00 a.m., 7/15/2010. Paul James present for Plaintiff. Christine Cryer and Scott Richardson present for Defendant. Court Reporter − Elaine Hinson (dmj) (Entered: 07/18/2010)
107 ORDER granting in part and denying in part 103 104 Motions in Limine and dismissing as moot in part. Signed by Judge James M. Moody on 7/15/10. (bkp) (Entered: 07/15/2010)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 10 of 11

07/15/2010
07/15/2010 07/15/2010 07/15/2010 07/15/2010 07/16/2010 07/29/2010 07/30/2010
08/06/2010
08/12/2010 08/13/2010 08/13/2010
08/13/2010 08/22/2010 08/23/2010
09/03/2010 09/08/2010

108 SECOND AND FINAL DAY OF JURY TRIAL held before Judge James M. Moody in Batesville on 7/15/2010. Jury retires for deliberation at 1:22 p.m. and returns with a verdict for Plaintiff at 5:17 p.m. Exhibits returned to counsel. Court Reporter − Elaine Hinson (Attachments: # 1 Plaintiff's exhibit list, # 2 Defendant's exhibit list, # 3 Notes from jurors) (dmj) (Entered: 07/18/2010)
109 JURY VERDICT finding for Plaintiff and awarding damages in the amount of $1.00. (dmj) (Entered: 07/18/2010)
110 Proffered Jury Instructions A &B by Shawanna Nelson(dmj) (Entered: 07/18/2010)
111 Proffered Jury Instruction A by Patricia Turnesky (dmj) (Entered: 07/18/2010)
112 Jury Instructions (dmj) (Entered: 07/18/2010)
113 JUDGMENT in favor of Shawanna Nelson against Patricia Turnesky re 109 Jury Verdict. Signed by Judge James M. Moody on 7/16/10. (bkp) (Entered: 07/19/2010)
114 Joint MOTION to Extend Time by Shawanna Nelson (James, Paul) (Entered: 07/29/2010)
115 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 114 Motion to Extend Time. The deadline to file a motion for attorneys fees and costs is hereby extended up to and including August 6, 2010. Signed by Judge James M. Moody on 7/30/10. (amr) (Entered: 07/30/2010)
116 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER on oral motion. The deadline to file a motion for attorneys fees and costs is hereby extended up to and including August 13, 2010.. Signed by Judge James M. Moody on 8/6/10. (amr) (Entered: 08/06/2010)
117 MOTION for Extension of Time to File Notice of Appeal by Patricia Turnesky (Cryer, Christine) (Entered: 08/12/2010)
118 ORDER granting 117 Motion for Extension of Time to File notice of appeal up to and including September 13, 2010. Signed by Judge James M. Moody on 8/13/10. (bkp) (Entered: 08/13/2010)
119 MOTION for Attorney Fees by Shawanna Nelson (Attachments: # 1 Exhibit Paul J. James' Fees and Costs, # 2 Exhibit Cathleen V. Compton's Fees and Costs, # 3 Exhibit Elizabeth Alexander's Fees and Costs, # 4 Exhibit Holly Dickson's Fees and Costs, # 5 Exhibit Paul J. James' Declaration, # 6 Exhibit Cathleen V. Compton's Declaration, # 7 Exhibit Elizabeth Alexander's Declaration and Curriculum Vitae, # 8 Exhibit Holly Dickson's Declaration, # 9 Exhibit Austin Porter's Affidavit, # 10 Exhibit JoAnn Maxey's Affidavit, # 11 Exhibit Leon Marks' Affidavit, # 12 Exhibit John L. Burnett's Affidavit)(James, Paul) (Entered: 08/13/2010)
120 BRIEF IN SUPPORT filed by Shawanna Nelson re 119 Motion for Attorney Fees,, (James, Paul) (Entered: 08/13/2010)
121 Unopposed MOTION for Extension of Time to File Response/Reply as to 120 Brief in Support, 119 MOTION for Attorney Fees by Patricia Turnesky (Cryer, Christine) (Entered: 08/22/2010)
122 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 121 Motion for Extension of Time to File Response to the Motion for Attorneys fees. Response due by 9/3/2010. Signed by Judge James M. Moody on 8/23/2010. (sjh) (Entered: 08/23/2010)
123 RESPONSE to Motion re 119 MOTION for Attorney Fees filed by Patricia Turnesky. (Cryer, Christine) (Entered: 09/03/2010)
124 MOTION for Leave to File Reply to Defendant Patricia Turensky's Response to Plaintiff's Application for Attorneys' Fees by Shawanna Nelson (James, Paul) (Entered: 09/08/2010)

Case: 1:04-cv-00037-JMM As of:04/18/2011 07:31 PM CDT 11 of 11

09/09/2010
09/10/2010 09/13/2010

125 (This is a TEXT ENTRY ONLY. There is no pdf document associated with this entry.) ORDER granting 124 unopposed Motion for Leave to File Reply to Defendant's Response to Plaintiff's Application for Attorneys' Fees. Plaintiff shall file the reply brief by 5:00 p.m. on Friday, September 10, 2010. Signed by Judge James M. Moody on 9/9/10. (dbg) (Entered: 09/09/2010)
126 REPLY to Response to Motion re 119 MOTION for Attorney Fees filed by Shawanna Nelson. (Attachments: # 1 Exhibit Deposition Excerpt of Max Mobley)(James, Paul) (Entered: 09/10/2010)
127 ORDER granting in part and denying in part 119 Motion for Attorney Fees. Attorney's fee in the amount of $1.50 is awarded plaintiff, as well as costs to Paul James in the amount of $573.26, costs to Elizabeth Alexander in the amount of $1,049.94, and costs to Cathleen Compton in the amount of $150.00 (filing fee). Signed by Judge James M. Moody on 9/13/10. (bkp) (Entered: 09/13/2010)

 
 Case: 07-2481 Page: 1 Date Filed: 07/31/2008 Entry ID: 3457209

1IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

LARRY NORRIS and PATRICIA TURENSKY,
DEFENDANTS-APPELLANTS,

vs.

NO. 07-2481

SHAWANNA NELSON, PLAINTIFF-APPELLEE. _______________________________________________________________

EASTERN DISTRICT OF ARKANSAS THE HONORABLE JAMES M. MOODY
UNITED STATES DISTRICT JUDGE

PETITION OF APPELLEE FOR REHEARING AND REHEARING EN BANC

On July 18, 2008, a three judge panel of this Court reversed the district court’s denial of the Defendants-Appellants’ (“Defendants”) motion for summary judgment on the basis of qualified immunity. The panel concluded that “Nelson’s allegations and undisputed facts do not amount to a constitutional violation. Therefore, we do not need to inquire further regarding qualified immunity.” Nelson v. Correctional Med. Servs., No. 07-2481 (8th Cir. July 18, 2008). Because the panel’s decision conflicts with the Supreme Court’s precedent in Farmer v. Brennan, 511 U.S. 825 (1994), regarding the elements of an Eighth Amendment claim based on the denial of minimally adequate confinement conditions, and erroneously relied upon Haslar v. Megerman, 104 F.3d 178 (8th Cir. 1997), in concluding that Defendant Officer Patricia Turensky did not violate Ms. Nelson’s constitutional rights, this Court should grant petitioner’s request for a rehearing and rehearing en banc.

Case: 07-2481 Page: 2 Date Filed: 07/31/2008 Entry ID: 3457209
BACKGROUND Plaintiff-1Appellee Shawanna Nelson (“Plaintiff”) entered the Arkansas Department of Corrections (“ADC”) in June of 2003, when she was six months pregnant. She was serving a sentence for non-violent offenses. SA 204. On September 20, 2003, she went into labor. She tried to report for her work assignment, but because of the intense pain caused by the onset of labor, she could not work. SA 207-08. When she arrived at the medical unit around noon, the nurses only checked her vital signs. SA 209-10. Soon her contractions were occurring in intervals of five minutes or less. SA 183. When prison staff finally began preparing Ms. Nelson for transport to the hospital, her contractions were so strong that twice she had to stop walking and move to the wall in order to endure the pain of walking from the medical unit to the sally port exit of the prison. SA 186-87. The nurse escorting Ms. Nelson to the sally port instructed the correctional officers to transport her to the hospital quickly. SA 183-84. A correctional officer assisted Ms. Nelson into the transport van taking her to the hospital. SA 196. Defendant Officer Patricia Turensky is an employee of the Arkansas Department of Corrections. SA 190. She is a correctional officer with no medical training and no special training in childbirth and delivery. SA 191. Although Officer Turensky was “not concerned” that Ms. Nelson was a flight or safety risk, she handcuffed Ms. Nelson and took leg shackles with her during the transport. SA 196-97. According to the hospital security log, which Officer Turensky filled out, upon arriving at the hospital, Ms. Nelson had already dilated to seven centimeters. SA 55; Def.’s Ex. D. When she arrived in the labor room, Officer Turensky handcuffed Ms. Nelson and shackled her legs to opposite sides of the bed. SA 215. Officer Turensky would allow only temporary unshackling when the nurses asked to check Ms. Nelson’s vital signs. SA 215. During the entire time she was shackled,

Case: 07-2481 Page: 3 Date Filed: 07/31/2008 Entry ID: 3457209
Ms. Nelson was “feeling sick” and her labor was very painful. See SA 55; Def.’s Ex. D, SA 212. While she was shackled to the bed, her movement was constrained and “[she] couldn’t get up in a position to move out of the bed.” SA 47. During labor, the shackles made her leg “cramp up and cause[d] severe pain . . .” SA 61. Despite the pain and difficulty the shackles caused during Ms. Nelson’s labor, Officer Turensky kept Ms. Nelson shackled for nearly an hour and a half, until hospital staff took her to the delivery room at 6:18 pm, see id., SA 44, 56. Ms. Nelson’s nearly tenpound baby boy was finally born at 6:23 pm. SA 56. Officer Turensky put leg shackles back on Ms. Nelson immediately after Ms. Nelson gave birth to her son and she remained shackled to the bed during visits with her newborn baby. SA 57, 216-217.
At 6:40 pm, Officer Turensky was relieved by a new security shift, she handed over the leg irons and cuffs to Officer Hubbard. SA 56. Officer Hubbard stayed with Ms. Nelson through her second night at the hospital. Acknowledging that Ms. Nelson was not a flight risk, and observing that the shackling caused Ms. Nelson to soil herself and the sheets with human waste, Officer Hubbard did not shackle Ms. Nelson during the second night. SA 49, 217-19.
In contrast to her insistence on shackling Ms. Nelson during labor and recovery, Officer Turensky repeatedly admitted her knowledge of the obvious health and safety reasons for not shackling pregnant women. Indeed, Officer Turensky claims “to use common sense” when making shackling decisions in transporting inmates to the hospital. Nonetheless, despite being told (and learning in her ADC training class) that she only needed to use full restraints on prisoners as long as they “weren’t too crippled or pregnant to do so,” she used restraints on the nine-months pregnant Ms. Nelson when transporting her to the hospital and after she arrived at the hospital to give birth. See SA 194-96, 198. Officer Turensky admitted that Ms. Nelson was neither a safety risk nor an escape risk. See SA 197. Furthermore, she stated that she shackled Ms. Nelson only because she

Case: 07-2481 Page: 4 Date Filed: 07/31/2008 Entry ID: 3457209
did not want the Warden to “write [her] up.” SA 198. She stated that it is her “preference” not to shackle pregnant women because the shackles might cause them to trip and it is difficult to walk when shackled. Id. Officer Turensky also stated: “After the inmates have their babies, they’re still going to have medical problems, and I do not shackle them in transport again.” SA 201. She further acknowledged that restraints during labor would cause pain, “I imagine they hurt the ankles when you’re lying in bed,” id., and would expose a laboring woman to “not very sanitary” conditions. SA 202. Contrary to her own actions during Ms. Nelson’s labor, delivery, and post-partum recovery, Officer Turensky’s written response to Ms. Nelson’s grievance acknowledge that there are “obvious medical reasons” for not shackling pregnant women. SA 64.
In addition to Officer Turensky’s own statements, undisputed expert testimony submitted by Dr. Cynthia N. Frazier, a Fellow of the American College of Obstetricians & Gynecologists, establishes that shackling a pregnant woman during labor is “inherently dangerous.” SA 169-172. The ADC’s policies and practices related to the shackling of pregnant women, as implemented and followed by Officer Turensky, were inherently dangerous and painful for Ms. Nelson and for the safe and humane delivery of her baby boy. Compare SA 44, 215 with SA 169.
ARGUMENT The narrow question raised in this petition for rehearing or rehearing en banc is whether Ms. Nelson is entitled to proceed to trial to prove her claim that Defendant Turensky violated the Eighth Amendment when she shackled Ms. Nelson during labor and post-partum recovery.1 Specifically, Ms. Nelson must show that restraints during active labor, childbirth and post-partum recovery pose
1 Defendants do not dispute that pregnancy is a serious medical need. Ms. Nelson’s claims that the medical care available to her during her pregnancy, labor and postpartum were constitutionally inadequate did not survive summary judgment and were not raised in Defendants’ interlocutory appeal before this Court.

Case: 07-2481 Page: 5 Date Filed: 07/31/2008 Entry ID: 3457209
serious risks of harm to pregnant women’s health and that Officer Turensky knew of and disregarded those risks when she shackled Ms. Nelson during active labor and post-delivery recovery. Under Farmer v. Brennan, 511 U.S. 825 (1994), a finder of fact should determine whether Ms. Nelson has made that showing. In direct conflict with Farmer, the panel dismissed Ms. Nelson’s remaining claims as a matter of law, and erroneously held that a practice of shackling pregnant women in active labor, and after delivery, regardless of any individualized security concerns, comports with the Eighth Amendment prohibition on cruel and unusual punishment. Because Farmer instructs that this type of determination should not be decided on summary judgment, and because this Court’s decision in Haslar does not control, the panel’s decision should be reversed. 1. The Panel Failed to Apply the Supreme Court Standard in Farmer v. Brennan.
In Farmer v. Brennan the Supreme Court defined the “deliberate indifference” necessary to prevail on an Eighth Amendment claim:
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence . . . and a fact-finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Farmer v. Brennan, 511 U.S. 825, 842 (1994) (internal citations omitted). Under this standard, awareness of a substantial harm can be “conclusively presumed . . . from a risk’s obviousness.” Id. at 840. For example, as the Court explained: [I]f an Eighth Amendment plaintiff presents evidence showing that a substantial risk of [harm to inmates] was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk and thus must have known about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant-official had actual knowledge of the risk. Id. at 842-43 (emphasis added). Although “[i]t is not enough merely to find that a reasonable person would have known, or that the defendant should have known,” a defendant does not escape liability

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“if the evidence showed that he merely refused to verify the underlying facts that he strongly suspected to be true, or declined to confirm inferences of risk that he strongly suspected to exist.” Id. at 843 n.8.
Thus, to survive Officer Turensky’s motion for summary judgment, Ms. Nelson was required to come forward with specific record facts to support her allegations that the harms posed by restraining a pregnant woman during labor, delivery, and recovery were known to and disregarded by Officer Turensky. As the district court correctly concluded, Ms. Nelson met that burden. The panel decision, however, fails to apply the Farmer standard and likewise fails to give any consideration to the record facts that support Ms. Nelson’s claim of deliberate indifference.
The health and safety risks of restraining a woman during the course of labor and immediately after childbirth are of the type that are so obvious, even in the absence of direct evidence that Officer Turensky knew of these risks, a fact-finder “might well infer that [the defendant] did in fact realize it.” 511 U.S. at 842. The record in Ms. Nelson’s case contains sufficient evidence for a fact-finder to conclude that Defendant Turensky knew that shackling Ms. Nelson, or any pregnant prisoner for that matter, during labor and recovery posed a substantial risk of serious harm.
A. Record evidence supports the fact that Officer Turensky knew of the risk of shackling Ms. Nelson but disregarded the risk.
First, the obviousness of the risks of restraining women during labor, childbirth, and recovery and the fact that Officer Turensky was aware of those risks is evident from ADC’s policies regarding restraints generally and restraints on pregnant women specifically. The administrative regulations for the ADC allow restraints “only when circumstances require the protection of inmates, staff, or other individuals from potential harm or to deter the possibility of escape.” SA 116; AR 403

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(emphasis added). The regulations further require that restraints will not “inflict physical pain” and they should not “be used longer than is necessary.” Id. Moreover, under Administrative Directive 95:21 discretion in the use of restraints is allowed where a prisoner is “rendered incapable of assaultive actions or escape and the removal of restraints is essential to provide adequate assessment or treatment.” SA 124. Finally, the ADC “Hospital Security Post Order” generally requires all prisoners who are hospitalized to be restrained to a bed, but, that same policy has specific provisions related to the use of restraints on pregnant prisoners. The Post Order authorizes removal of restraints at the point of delivery, or upon specific direction by the “physician in charge.” SA 111-13.
Due to the risky nature of using restraints, ADC requires training for all new employees as well as a yearly refresher course for staff on these restraint policies. See SA 117; AR 403. Officer Turensky received training on the use of restraints which instructed her to restrain prisoners as long as they “weren’t too crippled or pregnant to do so.” SA 194-95. Yet despite this training, and although she admitted that Ms. Nelson was neither a safety risk nor an escape risk, see SA 197, Officer Turensky insisted on shackling Ms. Nelson, who was full-term and in labor, when transporting her to the hospital and while she was at the hospital to give birth because she claimed to be afraid that the Warden would discipline her otherwise. See SA 44, 196-98, 215-16. Notably, and in contrast, the officer who relieved Officer Turensky chose not to shackle Ms. Nelson.2 SA 217. Under Farmer, whether or not Officer Turensky’s decision to shackle Ms. Nelson despite her training evinced deliberate indifference to a serious risk of substantial harm and was therefore an unconstitutional application of ADC policy, is a question for a trier of fact.3 2 Officer Hubbard stayed with Ms. Nelson through her second night at the hospital. Acknowledging that Ms. Nelson was not a flight risk, and observing that the shackling caused Ms. Nelson to soil herself and the sheets with human waste, Officer Hubbard did not shackle Ms. Nelson during the second night. SA 49, 217-19. 3 Plaintiff does not concede that ADC’s restraint policies in and of themselves respond to the known and obvious risks created by shackling a pregnant woman during the course of labor,

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Officer Turensky also repeatedly admitted her knowledge of the obvious medical and safety reasons for not shackling a pregnant woman. Indeed, in Officer Turensky’s response to the grievance Ms. Nelson filed after she was shackled, the Defendant stated “I/M while pregnant does NOT wear Shackles, Chain AND Box for obvious Medical Reasons.” SA 64 (capitalization in original, italics added). Given Officer Turensky’s written admission that shackling a pregnant woman should not be done for obvious medical reasons, a trier of fact could find that she was deliberately indifferent to Ms. Nelson’s serious medical needs. Moreover, Officer Turensky also admitted that she was aware that shackling a pregnant woman in labor and postpartum causes pain, is unsanitary and causes problems for women after they give birth. See SA 201-02. Thus, a trier of fact could find that the risk was obvious to Officer Turensky, she was aware of it, and nevertheless, she needlessly shackled Ms. Nelson.
B. Expert testimony in the record supports the fact that the risk of shackling Ms. Nelson was obvious.
Beyond Officer Turensky’s own admissions, the record contains the undisputed expert opinion of Dr. Cynthia Frazier, an obstetrician and Fellow of the American College of Obstetricians & Gynecologists, stating that shackling a woman during the final stages of labor is “inherently dangerous” to both the woman and the fetus. SA 169-170. This affidavit also reflects the wellestablished standard within the relevant medical and correctional health community of ensuring continuous mobility (not only intermittent mobility upon a doctor’s direct orders) during labor and delivery and during post-partum recovery. Such mobility is essential for a woman to safely manage
delivery and post-partum in a constitutionally adequate manner. And for the reasons discussed infra Part 2, neither the summary judgment record in this case, nor prior decisions of this Court, supports, let alone requires, a conclusion that the policy is constitutional on its face. However, the Court need not decide that question in order to permit, as it should, a trier of fact to determine whether the policy was applied unconstitutionally against Ms. Nelson—the issue raised in this petition.

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the process of labor and delivery, to minimize intense pain, and so that health staff can quickly respond to rapidly changing circumstances. See, e.g., id.; Standards for Health Services in Correctional Institutions, p. 108 (APHA 2003).4
Indeed, consistent with this standard, the federal courts have recognized that correctional authorities cannot use “restraints on any woman in labor, during delivery, or in recovery immediately after delivery.” See Women Prisoners of the District of Columbia v. District of Columbia, 93 F.3d 910, 918, 936 (D.C. Cir. 1996) (noting prison did not challenge district court’s finding that “use of physical restraints on pregnant women . . . violate[s] the Eighth Amendment” and quoting order of remedy issued below). In analyzing the Eighth Amendment claim below, the D.C. District Court found that prison officials acted with deliberate indifference in shackling women since the risk of injury to women prisoners is obvious. Women Prisoners of District of Columbia Dep’t of Corrections v. District of Columbia, 877 F. Supp. 634, 668 (D.D.C. 1994) (“Women Prisoners I”), vacated in part, modified in part by, 899 F. Supp. 659 (D.D.C. 1995), remanded by, 93 F.3d 910 (D.C. Cir. 1996). The court further found the Warden’s statement that he would not shackle a third trimester woman indicative of a recognition of an obvious risk. See id. at 669. The court noted that “the physical limitations of a woman in the third trimester of pregnancy and the pain involved in delivery make complete shackling redundant and unacceptable in light of the risk of injury to woman
4 The American Public Health Association recommends that, “[w]omen must never be shackled during labor and delivery.” Standards for Health Services in Correctional Institutions, p. 108 (APHA 2003). The American College of Obstetricians and Gynecologists published guidelines for “Health and Health Care of Incarcerated Adult and Adolescent Females” states, “[a]pplying physical restraints to pregnant women should be needed only very rarely, in extreme situations, for short periods.” Special Issues in Women’s Health, p. 97 (ACOG 2005). The ACOG guidelines also provide specific recommendations on how to safely position a pregnant woman who is restrained, none of which are reflected in the ADC policy or in Officer Turensky’s treatment of Ms. Nelson. Id.

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and baby.” The court held that any shackling “while a woman is in labor and shortly thereafter . . . is inhumane.” Id. at 668.
Like the Warden in Women Prisoners I, Officer Turensky’s actions and statements are indicative of the recognition of an obvious risk and a trier of fact could conclude that she was aware of the obvious risks of physically restraining a woman during labor and during post-partum recovery.
This record evidence is more than sufficient for a trier of fact to find that Officer Turensky shackled Ms. Nelson during active labor and post-partum recovery, despite knowing the obvious and serious health risks, and pain and suffering, such practices posed to laboring women and new mothers. 2. Haslar v. Megerman Does Not Determine the Result in This Case.
In addition to the panel’s failure to properly apply the Farmer standard for factual determinations in Eighth Amendment claims, the panel’s wholesale reliance on Haslar v. Megerman, 104 F.3d 178 (8th Cir. 1997), is misplaced. Haslar does not support the proposition, let alone hold, that it is “eminently reasonable” to have a blanket policy and practice of restraining pregnant women during labor and post-delivery recovery regardless of individualized security concerns. In Haslar, this court held that a general policy of restraining detainees to a hospital bed while they receive medical attention was constitutional because it “serves the legitimate penological goal of preventing inmates awaiting trial from escaping . . . less secure confines, and is not excessive given that goal.” Id. at 180. That very general principle, however, is not determinative of the constitutionality of a prison officer’s practice of using restraints on women during labor, childbirth and recovery.
As already discussed, record evidence supports a finding that Officer Tuerensky was aware of a unique set of health risks inherent in restraining pregnant women who are in labor, delivery, or immediate postpartum recovery. See supra at 7-8. Moreover, record evidence demonstrates that

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Defendant Turensky was aware that ADC does not consider the risk of escape by a female prisoner at the point she is in labor, delivery, or post-delivery recovery to be comparable to most other prisoners transported to hospitals for medical care. See supra at 7. With respect to this case, Officer Turensky admitted that Ms. Nelson was neither a safety risk nor an escape risk during the labor and delivery of her child and that shackling Ms. Nelson had nothing to do with a penological objective or safety concern; rather Officer Turensky was chiefly afraid that the Warden would discipline her if Ms. Nelson was not shackled. Id.
Thus, even if a general policy of restraining hospitalized prisoners may not be constitutionally “excessive” in most or many of its applications, a fact-finder could very well conclude that because of the significant and known differences in the risks inherent in shackling pregnant women, Officer Turensky’s insistence on shackling Ms. Nelson throughout labor and immediately after delivery of her child was in fact constitutionally “excessive.” 3. The Eighth Amendment Standard Relevant to This Case Was Clearly Established
at All Relevant Times. The panel did not reach the issue of whether or not Officer Turensky was entitled to qualified immunity. It is clear, however, that prison officials in Officer Turensky’s position reasonably should have known the unconstitutionality of shackling pregnant women during labor, delivery and immediately after childbirth. Therefore, she is not entitled to qualified immunity. See Brief of Appellee at 7-8; see also Women Prisoners of the District of Columbia, 93 F.3d at 918, 936 (D.C. Cir. 1996) (discussing decision below that held restraints during labor and delivery constitutes cruel and unusual punishment). The Supreme Court held thirty years ago that prison officials violate the Eighth Amendment when they act with deliberate indifference to prisoner’s serious medical needs. Estelle v. Gamble,

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429 U.S. 97, 104 (1976). The precise standard required to demonstrate a violation of the Eighth Amendment regarding prison conditions of confinement was defined by Farmer v. Brennan in 1994. Accordingly, the parameters of the constitutional right in question were clearly established long before any of the events relevant to Defendant’s liability.
In Hope v. Pelzer, 536 U.S. 730 (2002), the Supreme Court authoritatively set forth the standards for determining whether a particular constitutional right is clearly established. In that case, the Supreme Court reviewed a lower court decision that had concluded that, while the practice of restraining a prisoner to a “hitching post” as a disciplinary measure violated the Eighth Amendment, that right was not clearly established because there had been no binding previous decision that involved facts “materially similar” to the prisoner’s claim. Id. at 736.
While upholding the decision of the lower court that the use of the hitching post for discipline violated the Eighth Amendment, the Supreme Court reversed the lower court’s decision to allow the defense of qualified immunity. The Court reasoned that the basic interest protected by allowing a defense of qualified immunity is the right of government agents to “fair warning” that their conduct violated the Constitution. The Court then quoted with approval language in its earlier case of United States v. Lanier, 520 U.S. 259 (1997):
In some circumstances, as when an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high degree of factual particularity may be necessary. But general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the action in question has [not] previously been held unlawful. Hope, 536 U.S. at 740-41(citations and internal quotation marks omitted; bracketed material in original) (quoting Lanier, 520 U.S. at 270-71).

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For this reason, officials can be provided fair notice that their actions violate the Constitution
even in novel factual circumstances. While previous cases with similar facts can provide especially
strong support for a conclusion that the law is clearly established, they are not necessary to such a finding. Hope, 536 U.S. at 741. Farmer, particularly when viewed in combination with Estelle,5
provides a standard for federal courts to apply in all Eighth Amendment challenges to prison
conditions of confinement cases, specifically including medical care cases, and thus constitutes a
“general constitutional rule” of the type identified in Hope and Lanier:
Under the test that we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 842.6
For that reason, proof of an Eighth Amendment violation regarding medical care, such as
shackling pregnant women during labor, delivery and post-partum, or other conditions of
confinement, automatically defeats a qualified immunity defense. The Eighth Circuit and other
federal courts have long recognized that, in light of Farmer and Estelle, prison officials who act with
deliberate indifference to prisoners’ serious medical needs are not entitled to qualified immunity.
See Miller v. Schoenen, 75 F.3d 1305, 1309-11 (8th Cir. 1996) (in interlocutory appeal of denial of
qualified immunity on summary judgment to claim that prisoner was denied specialized necessary 5 Estelle, 429 U.S. 97 (1976), holds that prisoners’ Eighth Amendment rights are violated when prison officials, with deliberate indifference, fail to provide for their “serious medical needs.” Id. at 104. 6 Throughout Farmer, the Supreme Court relies, without distinction, on cases involving lack of medical care, failures to protect prisoners from physical assault, and threats to prisoner safety posed by environmental conditions. See, e.g., id. at 835 (citing Estelle, 429 U.S. at 104); 843-44, 846-47 (citing Hutto v. Finney, 437 U.S. 678, 681-82 (1982)) (cited regarding risk of sexual assault by other prisoners and about prison conditions that included extreme overcrowding, insufficient food, and unsanitary conditions); Helling v. McKinney, 509 U.S. 25, 33 (1993) (cited regarding discussion of liability for exposure of prisoners to infectious diseases).

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medical treatment in light of his needs as a heart transplant survivor, court of appeals examined whether there was evidence sufficient to survive summary judgment that prisoner had an objectively serious medical need as required by Estelle and evidence that defendants knew of and disregarded that need, as required by Farmer; finding such evidence in the record, the court affirmed the district court’s denial of qualified immunity); see also LaBounty v. Coughlin, 137 F.3d 68, 74 (2d Cir. 1998) (reversing district court’s recognition of qualified immunity defense to prisoner’s claim that he was exposed to friable asbestos particles in the air; reasoning that the right to be free of deliberate indifference to serious medical needs was clearly established in Estelle); Williams v. Mehra, 135 F.3d 1105, 1112 (6th Cir. 1998), rev’d in part en banc on other grounds, 186 F.3d 685 (1999) (holding, in the context of a case involving allegations of a failure to provide necessary psychiatric care and treatment to a prisoner who committed suicide, that the defendant psychiatrists were not entitled to a qualified immunity defense because the right to medical care for serious medical needs was clearly established in Estelle). In other words, if a prison official had “knowledge of a substantial risk of serious harm,” then the Eighth Amendment required the official to take appropriate action against that harm, and that obligation was clearly established as a matter of law.
As noted above, the record establishes that a trier of fact could find that Defendant Turensky had “knowledge of a substantial risk of serious harm” posed by shackling a pregnant woman during labor, delivery and post-partum, but she failed to take appropriate action against that harm to Ms. Nelson as required by the Eighth Amendment and contrary to clearly established law. See supra pp. 7-14. Accordingly, Defendant Turensky’s argument that she is entitled to qualified immunity must be rejected.

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CONCLUSION
For all of these reasons, Ms. Nelson’s constitutional claims related to Defendant Turensky’s
use of restraints during labor and post-delivery recovery cannot be dismissed at the summary
judgment stage and are entitled to proceed to trial.
Appellee understands that an amicus curiae brief is being submitted to the Court, and has
no objection to it.
Respectfully submitted,
/s/ Cathleen Compton Cathleen V. Compton, 85031 114 S. Pulaski Street Little Rock, AR 72201 (501) 372-0080 cathi.compton@sbcglobal.net

CERTIFICATE OF SERVICE

I, Cathleen V. Compton, do hereby certify that a true and correct copy of the foregoing has been served on the following electronically this 31st day of July, 2008.

Christine A. Cryer Boozer Assistant Attorney General 323 Center Street, Suite 1100 Little Rock, AR 72201

Alan Humphries Humphries & Lewis P.O. Box 20670

/s/ Cathleen Compton Cathleen V. Compton