Opinion
Civil Action No. 00-1960, Section "T"(4).
March 15, 2001
This cause came for hearing on a previous date upon the Motion for Summary Judgment by the Defendants, Jerry J. Larpenter, Sheriff of Terrebonne Parish ("Sheriff"), William F. Dodd, attorney for the Sheriff of Terrebonne Parish ("Dodd"), and Joe Null, Warden of the Terrebonne Parish Criminal Justice Complex ("Warden"), seeking to have all claims and demands of the Plaintiff, which are brought against the Defendants in their individual capacities pursuant to the provisions of 42 U.S.C. § 1983, dismissed on the basis of qualified immunity. The Court, having studied the legal memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised in the premises and ready to rule.
ORDER AND REASONS
I. Background
Plaintiff, Victoria W., was an inmate at the Terrebonne Parish Criminal Justice Complex ("TPCJC") from July 28, 1999 until October 13, 1999. Upon admission, Plaintiff was given a medical examination at which time she learned for the first time that she was pregnant. She contends that she immediately informed prison personnel that she wished to terminate her pregnancy. After her pregnancy was confirmed with a blood test on July 31, 1999, Plaintiff again informed prison and medical personnel that she wished to terminate the pregnancy. Medical personnel performed an ultrasound on August 6, 1999, by which they determined that Victoria W. was fifteen weeks and two days pregnant. All of this medical treatment was provided at medical facilities that are located away from the penitentiary, to which facilities Plaintiff was transported and treated for free and with no extra paperwork or court order.
On August 19, 1999, the Warden gave Plaintiff a letter signed by the attorney for the sheriff William Dodd, which letter informed her that it was the policy of the Terrebonne Parish Sheriff's Office to permit an inmate to terminate her pregnancy only by obtaining a court order authorizing the procedure. It stated that Plaintiff would be responsible for the cost of the procedure along with any costs for transportation and required security because, as the procedure "is not a medical emergency, the Sheriff's Office, under no condition, is responsible for the payment of same." This letter also mentioned that "I have been told that you had obtained a private attorney, but for some moral reason, he subsequently declined. That is not the problem of the Terrebone Parish Sheriff's Office." (Plaintiff's Affidavit, Dodd Letter). Plaintiff did contact her own attorney who petitioned the court and appeared on her behalf in early September, 1999. Apparently, this attorney did not request leave for an abortion procedure but instead requested early release for prenatal care. Whatever the case, Victoria W. was not able to obtain a court order prior to her release from the TPCJC, at which time she was 25 weeks pregnant and unable to receive an abortion under Louisiana law.
The Defendants claim that normal penitentiary procedure requires prisoners to obtain court authorization for all "elective" medical treatment and that the court's authorization will dictate the specific guidelines, such as requiring security measures. etc. under which the prisoner may obtain the requested procedure.
Although any misrepresentation by Plaintiff's attorney may have serious ramifications in the rest of this suit, it is not essential to an analysis of the Defendants' entitlement to qualified immunity.
II. Arguments of the Parties
Virginia W. contends that, because she was unable to obtain an abortion during her incarceration, the Defendants violated her constitutional rights under the Fourteenth Amendment. She further asserts that access to an abortion is a clearly established right of which the Sheriff should have known, and she maintains that, as the Sheriff assumed custody of her person, the Defendants behaved unreasonably by not ensuring her access to the abortion in light of that clearly established law. Therefore, Plaintiff claims that the Defendants are not entitled to assert qualified immunity for their actions during her incarceration.
Next, Virginia W. contends that, because the abortion represents a "serious medical need," the Defendants violated her constitutional rights under the Eighth Amendment. She further asserts that relevant jurisprudence clearly establishes abortion as a serious medical need, and she maintains that the Defendants were deliberately indifferent to the detrimental result of a delay or denial of treatment and therefore behaved unreasonably. Plaintiff claims that Defendants should not be entitled to qualified immunity from either of these alleged civil rights violations and that each is individually responsible for her damages resulting from the unwanted birth.
On the other hand, the Defendants answer that, although Plaintiff has a clearly established right to an abortion, a woman has no constitutional right to a publicly funded, non-therapeutic abortion. Furthermore, Defendants argue that they did not deny Victoria W.'s right to an abortion but only required that the prison's certain procedure for elective medical treatment be followed before exercising that constitutional right. They further assert that there is no clearly established law requiring them to ensure a prisoner's access to a privately funded abortion outside of the court-ordered release and private payment procedure. Moreover, the Defendants claim that, in light of Louisiana's public policy in favor of protection of the unborn child and its affirmation of such in a legislative ban on the use of public funds for abortion, their behavior was objectively reasonable in refusing to ensure that Plaintiff receive an abortion.
Likewise, the Defendants contend that there is no law that clearly establishes that a non-therapeutic abortion is a serious medical need. Consequently, they claim that they did not violate a clearly established law requiring that they provide prisoners with abortions under the Eighth Amendment's prohibition of cruel and unusual punishment. Moreover, Defendants assert that considering the circumstances of the state's ban on expending public funds for abortion and considering her attorney's alleged misrepresentation, allowing the prisoner timely access to petition the court under the TPCJC's procedure was objectively reasonable and was all that they could legally do. Therefore, the Defendants argue that they are entitled to qualified immunity from the Plaintiff's § 1983 claims, and they request that this Court dismiss all actions brought against them in their individual capacities.
III. Legal Analysis
The Federal Rules of Civil Procedure provide that summary judgment should be granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. Civ. P. 56(c). The party moving for summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact.Stults v. Conoco, Inc., 76 F.3d 651, 655-56 (5th Cir. 1996) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 912-13 (5th Cir. 1992) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. The nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis supplied);Tubacex, Inc. v. M/V RISAN, 45 F.3d 951, 954 (5th Cir. 1995).
Thus, where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no "genuine issue for trial." Matsushita Elec. Indus. Co., 475 U.S. at 588. Finally, this Court notes that substantive law determines the materiality of facts and only "facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
For claims of qualified immunity, the Fifth Circuit employs a well-founded analysis:
Qualified immunity provides "ample protection to all but the plainly incompetent or those who knowingly violate the law." We conduct a bifurcated analysis to determine whether a defendant is entitled to qualified immunity. The first step is to determine whether the plaintiff has alleged a violation of a clearly established constitutional right. A 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 official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent." "Further, the applicable law that binds the conduct of officeholders must be clearly established at the very moment that the allegedly actionable conduct was taken." The issue typically is a question of law.
The second step is to determine whether the defendant's conduct was objectively reasonable. "Objective reasonableness is assessed in light of legal rules clearly established at the time of the incident." An officer's conduct is not objectively reasonable when "all reasonable officials would have realized the particular challenged conduct violated the constitutional provisions sued on." This issue, too, generally is a question of law, but denial of summary judgment based on a material factual dispute would be appropriate if there are underlying historical facts in dispute that are material to resolution of the question whether the defendants acted in an objectively reasonable manner.Wooley v. City of Baton Rouge, 211 F.3d 913, 919 (5th Cir. 2000) (internal citations and quotations omitted). This Court determines that there is no issue of material fact relevant to these Defendants' entitlement to the cloak of qualified immunity, and therefore, the claims must be dismissed.
1) Fourteenth Amendment Claim
A woman has a Constitutional right to choose to have an abortion without undue interference from the state before viability of the fetus. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). In Casey, the Supreme Court imposed the undue burden standard as the appropriate means for reconciling a state's interest in human life with a woman's constitutionally protected liberty, and thus, a state regulation is invalid if it has the purpose or effect of placing a substantial obstacle in the way of a woman seeking an abortion of a nonviable fetus. See id. That case and the subsequent jurisprudence have clearly established a woman's right to choose an abortion with only minimal impediments in the form of state regulations.
Next, in the context of prisoner's rights, "there is no iron curtain drawn between the Constitution and the prisons of this country." Bell v. Wolfish, 441 U.S. 520, 545 (1979) (quotingWolff v. McDonnell, 418 U.S. 539, 555-556 (1974)). However,
"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." The fact of confinement as well as the legitimate goals and policies of the penal institution limits these retained constitutional rights. There must be a "mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application."Id. (internal citations and quotations omitted). Continuing, when a prison regulation impinges on inmates' Constitutional rights, it must only be reasonably related to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78 (1987) (holding unconstitutional a prison restriction on inmates' right to marry even under a lower standard of Constitutional review). In determining reasonableness, relevant factors include (1) whether there is a valid, rational connection between the regulation and a legitimate governmental interest; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to inmates; (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates' liberty, and on the allocation of limited prison resources; and (4) whether the regulation represents an exaggerated response to prison concerns. See id. at 89-90. Therefore, it is also clearly established that prisons may limit prisoners' constitutional rights to a greater extent than would otherwise be lawful, as long as the limitation is in furtherance of a legitimate penological interest.
Louisiana has expressed that it is the public policy of the state to foster natural childbirth. See LA. REV. STAT. § 40:1299.35.0. Moreover, under Louisiana law "no public funds . . . shall be used in any way for, to assist in, or to provide facilities for an abortion, except when the abortion is medically necessary to prevent the death of the mother." LA. REV. STAT. § 40:1299.34.5. This right of the several states to apportion their funds in a manner consistent with fostering child birth is a constitutionally protected state's right, and a state's interest in encouraging normal childbirth is legitimate and supports funding restrictions on non-therapeutic abortions.See Beal v. Doe, 432 U.S. 438 (1977); Hope Medical Group for Women v. Edwards, 63 F.3d 418 (5th Cir. 1995). Therefore, a Louisiana government official would violate Louisiana's statutory law by expending any funds to assist a woman in seeking such an abortion.
In a similar case involving a prison procedure that required court authorization for prisoners seeking elective abortions, the Third Circuit declared that the prison's procedure violated its inmates' Eighth and Fourteenth Amendment rights to choose an abortion. See Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir. 1987). However, the Monmouth prison was not prohibited by state law from expending public funds for abortion. See id. Moreover, the Sixth Circuit in another case involving prisoners' rights to abortions, discussedMonmouth as a "novel constitutional decision," indicating that before Monmouth, there was no ruling or consensus on the issue and granting the warden summary judgment on the basis of qualified immunity. Gibson v. Mathews, 926 F.2d 532, 534-535 (6th Cir. 1991) (holding that it was not clearly established at the time of the alleged actions, pre-Monmouth, that the Constitution required federal prison employees to facilitate prisoners in their requests for an abortion). Few cases have since dealt with this issue and none have done so in Louisiana. See e.g. Doe v. Barron, 92 F. Supp.2d 694 (S.D. Ohio 1999); Bryant v. Maffucci, 729 F. Supp. 319 (S.D.N.Y. 1990); Roe v. Leis, No. C-1-00-651 (S.D. Ohio Jan. 10, 2001).
Victoria W. has a clearly established right to choose an abortion, and even while incarcerated, she retains that right. However, the state prison may burden that right to the extent that the restriction reasonably relates to a legitimate penological interest. The TPCJC's regulation requiring a court order for elective procedures may or may not be constitutional as applied to non-therapeutic abortions in Louisiana. That is a question for another day. The question relevant to the present motion is whether the Defendants should have known that Victoria W.'s right to choose an abortion was unconstitutionally hindered by that procedure and, taking into account Louisiana's prohibition on public funding for abortion, whether that right was clearly established.
An adult woman's constitutional right of unimpeded access to an abortion is clear; however, that same right and access is not so well-defined for incarcerated women. Plaintiff relies heavily on Monmouth, a Third Circuit action to enjoin a similar prison procedure. Although that Court did rule the court order procedure unconstitutional, that 1987 decision dealt with different circumstances because New Jersey had no ban on expenditure of state resources in furtherance of abortion as does Louisiana. Moreover, Monmouth and the few District Court cases offered by Plaintiff do not create clearly established law. Absent any jurisprudence in this circuit dealing with Louisiana's ban on abortion funding as applies to prisoner's right to choose an abortion, and furthermore, absent any established law in any circuit other than the Third, the Court can not find that there is a clearly established law requiring the Defendants to ensure that women prisoners receive non-therapeutic abortions.
Plaintiff points out that if it were clear in Bellotti v. Baird, 443 U.S. 622, 634 (1979), that requiring minors to obtain Court authorization for abortion is unconstitutional unless the state provides safeguards to ensure speedy resolution of their requests, then surely it was clear that requiring adult women, who have more expansive abortion rights than minors, to obtain Court approval without such safeguards was unconstitutional. However, Turner, 482 U.S. 78, undermines this argument because prisoners' constitutional rights are not as expansive as those of free persons.
Court emphasizes that the Monmouth Court declared the New Jersey prison's court order procedure unconstitutional; it did not necessarily clearly establish that every similar prison procedure is also unconstitutional.
Having found no clearly established law, the Court need go no further; however, in an abundance of caution, the Court will nevertheless address the reasonableness of the Defendants' actions. Even were the Court to most broadly define the allegedly violated right as a woman's right to an unimpeded abortion, disregarding Victoria W.'s status as a prisoner whose rights may be limited, the Defendants' actions would still appear reasonable. Louisiana's statute expressly forbids the Defendants from utilizing any public resources to assist Victoria W. in obtaining an abortion. The Defendants notified Plaintiff of the prison procedure for elective medical treatment, and they allowed her access to petition the Court for leave for the abortion according to that procedure, and that access would have been timely to allow Victoria W. leave for the abortion within the legal time limit had she successfully obtained the court order. They even notified her in writing that there was. nothing more that they could do. In fact, they went so far as to inform her of their belief of her attorney's moral problems with her cause. These Defendants could not legally have gotten Victoria W. new representation, could not legally have transported her to a private clinic, and certainly could not legally have performed the abortion. What, in the face of Louisiana's apparently lawful ban on expending public funds for abortion, could any of these Defendants have done?
Plaintiff has indicated that she intends to challenge the constitutionality of this statute as applied to prisoners. The Court expresses no opinion on the merits of that argument except to say that the Defendants herein can not be held to the level of constitutional scholars so that they might have individually determined that the law is unconstitutional, if in fact it is, especially where such a scholar would have great difficulty doing the same.
Even if the Court were to assume that there was at the time a clearly established law requiring prison officials to ensure that prisoners desiring abortions did successfully obtain such, then an official faced with a choice of violating one law or the other, the right to choose or the state prohibition, might have great difficulty in choosing one course over the other. In truth and in fact, that is not the case here. These Defendants, in the worst case scenario, faced the choice of standing by and failing to take affirmative action to secure an abortion for Plaintiff or the choice of taking affirmative action and violating Louisiana's express statutory law. Under these circumstances, the Defendants' conduct is reasonable as a matter of law. Thus, there is no relevant issue of fact for a jury to determine, and the Defendants are entitled to qualified immunity from the Plaintiff's § 1983 claim of violations of her Fourteenth Amendment rights.
Admittedly, state officials should realize that federal law preempts state law. However, the Defendants in this case did not impede Plaintiff's avenue for securing an abortion as federal law prohibits.
2) Eighth Amendment Claim
The Eighth Amendment to the United States Constitution prohibits citizens from being subjected to cruel and unusual punishment. In the context of medical care for prisoners, "[i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). Because the government takes custody of the prisoner's person, the prison has an obligation to provide medical care to those who cannot by reason of their incarceration, care for themselves. See id. at 102-104.
To determine what constitutes a serious medical need, Courts employ an objective inquiry, assessing the potential harm of denying treatment of the condition. See Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Examples of these types of serious medical needs are heart attack symptoms, a hand injury that could result in permanent disability, and diagnosed need for prescribed psychotropic medication. (Citations omitted). Examples of needs that Courts have found to not be sufficiently serious are failure to administer acetaminophen and ice for swollen areas after a fall, minor dental repairs, and cold-like symptoms. (Citations omitted). Thus, where denial or delay of treatment would incur substantial harm and unnecessary suffering, a serious medical need exists.
Courts apply a more subjective inquiry into the official's state of mind to determine deliberate indifference in denying medical treatment. See Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999). The indifference spoken of in Estelle is more than mere negligence or oversight, it is an intentional denial or interference that is not just an accident but is "wanton infliction of unnecessary pain" or that would be "repugnant to the conscience of mankind." 429 U.S. at 103-104.
Few cases have dealt with the issue of whether abortion would constitute a serious medical need under Estelle. See e.g. Gibson, 926 F.2d 532 (undecided but assumed for purposes of dismissing the action); Monmouth, 834 F.2d 326 (holding that abortion is a serious medical need); Bryant, 729 F. Supp. at 322 (declining to address serious medical need as there was no deliberate indifference); but see e.g. Hope Medical Group for Women v. Edwards, 63 F.3d 418 (5th Cir. 1995) (confirming in a funding case that the state need not fund non-therapeutic abortions other than for rape and incest victims). As Plaintiff asserts, the Supreme Court's abortion jurisprudence does to some extent equate abortions with childbirth in the context of medical care. See Casey, 505 U.S. 833. However, there is no jurisprudence constante, no binding precedent, nor even a significant body of law addressing the issue of whether abortion is a serious medical need under Estelle.
For this § 1983 claim, Victoria W. must first allege a constitutional violation; she has done so by claiming that the Defendants violated her Eighth Amendment right of protection from cruel and unusual punishment by acting deliberately indifferent to her serious medical need of an abortion. Next, this Court must apply the qualified immunity analysis outlined above to prisoners' rights to medical care. In order to forfeit the cloak of qualified immunity, there must be law clearly establishing that abortion is a serious medical need, and the Defendants must have acted unreasonably by intentionally denying or interfering with Victoria W.'s obtaining the abortion.
The Court reiterates that the emphasis of analysis for qualified immunity must not be on whether there is a constitutional violation, i.e.: deliberate indifference to a serious medical need, but it must be on whether that constitutional law is clearly established and whether the Defendants acted reasonably in the face of such.
Although Plaintiff makes compelling arguments, asserting that abortion is a serious medical need because of Casey's comparison of abortion to childbirth and because of the profoundly significant consequences of childbirth or failure to abort, this Court simply does not find that abortion is a clearly established serious medical need. Monmouth was a suit for injunctive relief from a prison policy that required court orders solely for abortion procedures in a state that did not prohibit the use of public funds for abortion, whereas the TPCJC's policy applies to all elective procedures in a state whose public policy forbids expenditure of such funds. In fact, the Monmouth Court in itsTurner and Eighth Amendment analysis discussed the potential for disparate outcomes based on ability to pay and based on incarcerated persons' ineligibility for Medicaid funding, whereas Louisiana's prohibition on abortion funding applies equally to incarcerated and free persons and denies Medicaid funding for abortion regardless of that status. Moreover, there just is not a significant enough body of law to clearly establish abortion as a serious medical need under Estelle. Consequently, there is no issue of fact for a jury to resolve because the Defendants are entitled to qualified immunity as a matter of law, and their Motion for Summary Judgment must be GRANTED.
Because abortion is not clearly established as a serious medical need under Estelle, the Court need go no further. Were the Court to, again in an abundance of caution, analyze the reasonableness of the Defendants' actions, the analysis would be nearly identical to that under the Fourteenth Amendment claim, and the Court would find that the Defendants actions were reasonable as a matter of law.
Accordingly,
IT IS ORDERED that the Defendants' Motion for Summary Judgment (Doc. 17) be, and the same hereby is GRANTED.
IT IS FURTHER ORDERED that Victoria W.'s § 1983 claims against Jerry J. Larpenter, Sheriff of Terrebonne Parish, William F. Dodd, attorney for the Sheriff of Terrebonne Parish, and Joe Null, Warden of the Terrebonne Parish Criminal Justice Complex, in their individual capacities, be, and the same hereby are DISMISSED WITH PREJUDICE.