Appeal from the United States District Court for the Eastern District of Arkansas.
The opinion of the court was delivered by: Murphy, Circuit Judge.
Submitted: September 24, 2008
Before LOKEN, Chief Judge, WOLLMAN, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER, BENTON, and SHEPHERD, Circuit Judges, En Banc.
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.
Since this appeal is from a motion for summary judgment, we state the facts in the light most favorable to the nonmoving party. Humann v. KEM Elec. Coop., Inc., 497 F.3d 810, 811 (8th Cir. 2007). Nelson was a twenty nine year old nonviolent offender who was six months pregnant with her second child when she arrived at the McPherson Unit of the ADC on June 3, 2003. She went into labor on September 20 and presented herself at the prison infirmary at 3:00 pm. Shortly thereafter Nelson began to cry out in pain, and by 3:25 pm her contractions were already only five to six minutes apart. The infirmary nurses determined that she must be immediately transported to a contracting civilian hospital to deliver her child. They requested a gate pass, a transport van, and an escort officer to get Nelson to the hospital.
Nelson was to be picked up in the sally port. To get there from the infirmary she had to be cleared through the central control gate and then walk down a long hallway nearly the length of a football field. Nurse Smith helped her leave the infirmary, and at the control gate the two met Officer Turensky, the assigned transportation officer. Turensky testified that after the group cleared the gate, she walked with Nelson the entire length of the hallway leading to the sally port.
Nurse Smith testified that Nelson had to stop twice on the way to the sally port because she was in so much pain "she couldn't walk" and had to lean against the wall for support. After the second or third time that Nelson's pain forced her to stop, Nurse Smith hollered to the sally port officers, "[a]s soon as I get [to the sally port], you better have the gate pass, because I want her out of here." Turensky wrote in her response to Nelson's prison grievance form that Lieutenant Williams had instructed her to "RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs." (emphasis in the original). She nevertheless put handcuffs on Nelson as soon as they reached the sally port. Nurse Smith testified that before Nelson was able to get into the transport van, she "had one [contraction] . . . because I remember standing there and helping her breathe and then putting her in the van."
Officer Turensky and Nelson arrived at the hospital at 3:50 pm. Although Turensky later testified that Nelson neither said nor did anything to suggest she was an escape risk and that "she did not ever feel threatened by Nelson at any time," see Nelson v. Corr. Med. Servs., 533 F.3d 958, 961 (8th Cir. 2008), Turensky shackled Nelson's legs to a wheelchair and took her to the maternity ward. There, Nelson changed into a hospital gown and Turensky shackled both of her ankles to opposite sides of her hospital bed. According to Turensky's own entry in her security check log, Nelson's cervix had dilated to 7 centimeters by that time. This meant that Nelson was well into the final stage of labor when Turensky shackled her.*fn1 Nelson asked for an epidural anesthesia to ease her pain, but the nurses said she would have to wait for approval from the obstetrician, Dr. Hergenroeder, who was on his way.
According to Nelson's testimony, the shackles prevented her from moving her legs, stretching, or changing positions. A nurse told Officer Turensky that "[s]he wished that they wouldn't have to put those restraints on" Nelson, but to no avail. Each time a nurse needed to measure Nelson's dilation, that nurse had to ask Turensky to unshackle her. Although it was clear that Nelson was in the final stages of labor and no one on the hospital staff ever requested that she be reshackled, Nelson testified that Turensky "hooked [her] right back up" to the bed rails after each cervical measurement was taken. Turensky herself noted in her security check log that by 4:38 pm Nelson was dilated to 8 centimeters.
Dr. Hergenroeder arrived at 5:00 pm. According to his testimony he was only able to prescribe Tylenol to ease Nelson's pain because by that time it was too close to the delivery of her baby for an epidural. Turensky noted in her log that by 5:13 pm Nelson was dilated to 9 centimeters and that two nurses were helping her push her baby along the birth canal. Turensky also noted at 5:40 pm that Nelson was feeling sick. At 6:15 pm she was taken to the delivery room where her baby boy was born at 6:23 pm. Nelson's shackles were apparently removed at Dr. Hergenroeder's request before she went into the delivery room. At 6:40 pm Turensky went off duty and left the hospital.
Nelson asserts that as a result of being shackled during her labor, she was unable to move her legs or stretch during "the most painful and stressful" part of it. She produced evidence that the shackling caused her extreme mental anguish and pain, permanent hip injury, torn stomach muscles, and an umbilical hernia requiring surgical repair. She has also alleged damage to her sciatic nerve. According to Nelson's orthopedist, the shackling injured and deformed her hips, preventing them from going "back into the place where they need to be." In the opinion of her neurosurgeon the injury to her hips may cause lifelong pain, and he therefore prescribed powerful pain medication for her. Nelson testified that as a result of her injuries she cannot engage in "ordinary activities" such as playing with her children or participating in athletics. She is unable to sleep or bear weight on her left side or to sit or stand for extended periods. Nelson has also been advised not to have any more children because of her injuries.
Turensky had been a correctional officer at McPherson for approximately six years at the time Nelson went into labor on September 20, 2003. During her prison orientation Turensky had received training on the laws and regulations governing hospital transports, and she had participated in at least forty hours of additional classroom training each year.
Several of the ADC regulations specifically applied to the shackling of prisoners.*fn2 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.*fn3 Norris and Turensky moved for summary judgment based on qualified immunity, arguing 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.
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 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.
The Eighth Amendment "prohibits the infliction of cruel and unusual punishments on those convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 296-97 (1991) (quotation omitted). In order to make out an Eighth Amendment 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 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 ...