There is a disturbing and important ruling out of the United States Court of Appeals for the Eighth Circuit. In the prisoner case below, Nelson v. Correctional Medical Services, the court examined whether a prisoner guard is entitled to qualified immunity when she shackles a female prisoner during labor despite the objections of the medical staff. Arkansas corrections officer Patricia Turensky was found not to be entitled to such protection for her actions in shackling inmate Shawanna Nelson. The decision was handed down on October 2, 2009.

Here are the facts lead out by the court in its decision:

Nelson was a twenty nine year old nonviolent offender who was six months pregnant with her second child when she
arrived at the McPherson Unit of the ADC on June 3, 2003. She went into labor on September 20 and presented herself at the prison infirmary at 3:00 pm. Shortly thereafter Nelson began to cry out in pain, and by 3:25 pm her contractions were already only five to six minutes apart. The infirmary nurses determined that she must be immediately transported to a contracting civilian hospital to deliver her child. They requested a gate pass, a transport van, and an escort officer to get Nelson to the hospital.

Nelson was to be picked up in the sally port. To get there from the infirmary she had to be cleared through the central control gate and then walk down a long hallway nearly the length of a football field. Nurse Smith helped her leave the infirmary, and at the control gate the two met Officer Turensky, the assigned transportation officer. Turensky testified that after the group cleared the gate, she walked with Nelson the entire length of the hallway leading to the sally port. Nurse Smith testified that Nelson had to stop twice on the way to the sally port because she was in so much pain “she couldn’t walk” and had to lean against the wall for support. After the second or third time that Nelson’s pain forced her to stop, Nurse Smith hollered to the sally port officers, “[a]s soon as I get [to the sally port], you better have the gate pass, because I want her out of here.”

Turensky wrote in her response to Nelson’s prison grievance form that Lieutenant Williams had instructed her to “RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs.” (emphasis in the original). She nevertheless put handcuffs on Nelson as soon as they reached the sally port. Nurse Smith testified that before Nelson was able to get into the transport van, she “had one [contraction] . . . because I remember standing there and helping her breathe and then putting her in the van.”

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

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

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

What is curious is that Turensky stated in her deposition that such shackling is problematic and objectionable:

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).

The appellate court found such evidence was sufficient to allow the case to got to trial — affirming the district court. The court stressed that “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 . . . [Indeed] according to Turensky’s own testimony, Nelson was not threatening or belligerent at any point.”

Yet, the court reversed the denial of summary judge as to Larry Norris, Director of the Arkansas Department of
Correction. The court noted that correctional directives clearly stated that “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.” Ark. Dep’t of Corr. Hosp. Sec. Post
Order § (III)(A)(3)(2003). In some ways, the success in establishing that Turensky acted outside of governing policies and practices helped Nelson. However, it does not address the possibility of correct written policies but abusive unwritten practices or policies. However, the court ruled that “[t]he 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.”

It will be interesting to watch the extent that Turensky will now be free to blame the prison and Norris. If Nelson was kept in the case, any effort to shift from personal to institutional blame would have been likely challenged. This is still a major ruling in terms of prisoner rights and it will be an interesting trial to watch.

Here is the full opinion: 072481P