Click Back Button to Return to Publication
VICTORIA W. VERSUS JERRY J. LARPENTER, ET AL.
CIVIL ACTION NO. 00-1960 SECTION "A"(4)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
May 20, 2002, Decided
May 21, 2002, Filed, Entered
Plaintiff Victoria W. filed this
suit for damages pursuant to 42 U.S.C. § 1983 and Louisiana state law claiming
that Defendants violated her constitutional rights under the Eighth and
Fourteenth Amendments because she failed to obtain a timely [*583] non-therapeutic
abortion while incarcerated at the Terrebonne Parish Criminal Justice Complex
in 1999. Plaintiff named as defendants Jerry J. Larpenter, Sheriff of
Terrebonne Parish, William F. Dodd, attorney for the Sheriff of Terrebonne
Parish, Joe Null, Warden of the Terrebonne Parish Criminal Justice Complex
("TPCJC"), Terrebonne Parish
Consolidated Government ("TPCG"), Dave Norman, attorney for
TPCG, Ed Byerly, Medical Administrator of TPCJC, Charles Spence, Medical
Director of TPCJC, and their respective insurers. All defendants were sued in
their individual and official capacities.
Trial was set to commence on May 6, 2002, before the bench. On March 27,
2002, the following motions were set for hearing:
Motion for Summary Judgment by plaintiff
Victoria W. (Rec. Doc. 151);
Motion for Summary Judgment by defendants
Jerry J. Larpenter and Joe Null (Rec.
Doc. 130);
Motion for Summary Judgment by defendant
William F. Dodd (Rec. Doc. 131);
Motion for Summary Judgment by defendants
TPCG, Dave Norman, Ed Byerly, and Charles Spence (Rec. Doc. 138);
Motion to Strike Witness Lists by plaintiff
Victoria W. (Rec. Doc. 150).
On
April 10, 2002, the Court heard oral argument and took all five motions under
advisement. On April 16, 2002, in light of the fast-approaching trial date and
the daunting volume of documentary evidence submitted in support of the various
motions, the Court issued an order without reasons granting Defendants' cross
motions for summary judgment, and dismissing all of Plaintiff's federal claims
with prejudice. Rec. Doc. 191.
At
this time, after full consideration of the memoranda, the evidence of record,
the arguments of counsel, and the applicable law, the Court issues these reasons
to fully explain the April 16, 2002, order of dismissal.
FACTUAL BACKGROUND
Plaintiff Victoria W. n1 was an
inmate at the TPCJC from July 28, 1999, to October 13, 1999, serving a sentence
for simple battery following revocation of probation. Upon arriving at the
facility on July 28, 1999, Plaintiff received a routine physical examination
which revealed that she was pregnant. Plaintiff asserts that she immediately
informed the medical personnel who conducted the examination that she wished to
terminate the pregnancy. n2 On July 31, 1999, a blood test taken at the Chabert
Medical Center confirmed the pregnancy, and on August 6, 1999, an ultrasound
conducted at that same facility revealed that Plaintiff was 15 weeks and 3 days
pregnant. All of this offsite medical treatment was provided without the
necessity of any court intervention nor was Plaintiff required to pay for the
medical treatment she received.
On or about August 12, 1999, Plaintiff met
with defendant Ed Byerly, the TPCJC medical administrator, regarding her
request for an abortion. Plaintiff informed [*584] Byerly that she wanted an
abortion and had the money to pay for it herself. n3 Plaintiff claims that during
this meeting, Byerly informed her that in order to obtain an abortion she would
have to hire an attorney and obtain a court order authorizing the procedure. n4
At
the August 12th meeting, Byerly attempted to assist Plaintiff by permitting her
to use the telephone to phone her attorney n5 as well as several abortion
clinics. Plaintiff spoke with her attorney, Howard Marcello, at that time and
even asserts that Byerly took the phone from Plaintiff to explain "the
court order position" to Marcello. n6 On August 19, 1999, Byerly authored
a letter to the TPCJC warden, defendant Joe Null, expressing his concerns over
Marcello's having not contacted the TPCJC following his conversation with
Plaintiff, the timeliness of an abortion, and the possible legal implications
of Plaintiff being unable to obtain an abortion within the legal time period.
n7
On or about that same date,
August 19, 1999, Null delivered to Plaintiff a letter authored by defendant
Dodd and addressed to Plaintiff. n8 In that letter, Dodd clarifies inter alia
that Plaintiff would need a court order authorizing her release from the TPCJC
in order to obtain the abortion and that under no circumstances would the
Sheriff pay for the abortion and its attendant costs given that it was not
medically required. He also acknowledged that there seemed to be some problem
with Plaintiff's attorney acting on her request for the court order, but that
again the Sheriff and the Parish were not required to remedy those problems or
to act. In closing, Dodd stated that the letter should make clear to Plaintiff
the position of the Sheriff and likely the Parish. n9 It is undisputed that
this was the first and only request for an inmate abortion ever received at the
TPCJC.
On September 1, 1999, Marcello
filed a Motion for Reconsideration of Sentence which was heard on September 9,
1999. From the transcript of that proceeding it is clear that Marcello did not
inform the court that Plaintiff sought to obtain an abortion. n10 Rather,
Marcello requested that Plaintiff be excused from serving the rest of her sentence
given that she was pregnant and that complications with her pregnancy rendered
the prenatal care available at the facility insufficient. The judge found
insufficient evidence to rule on [*585]the motion at the time absent an
evaluation by an obstetrician. n11
For reasons unclear from the
record, Plaintiff was not brought to the courtroom during the hearing on the
motion to reconsider sentence, although she was in custody in the courthouse
building. n12 She claims to have learned only after the hearing was over that
Marcello had not informed the court of her desire to terminate the pregnancy.
Marcello denies that Plaintiff ever told him that she wanted an abortion. n13
Rather, he claims that Plaintiff contacted him because of her concern for her
unborn child given the inadequacies of prenatal care at the prison. It is
undisputed that Plaintiff was still within the legal time limit for obtaining
an abortion under Louisiana law when the motion to reconsider sentence was
heard in open court. It is unclear from the record what subsequent steps, if
any, Plaintiff took in furtherance of obtaining the abortion.
Plaintiff was released from the TPCJC on
October 13, 1999, slightly more than 25 weeks pregnant and unable to obtain an
abortion in Louisiana. She gave birth in January 2000, and placed the child
with adoptive parents.
PLAINTIFF'S ALLEGATIONS AND PRIOR PROCEEDINGS
Plaintiff filed the instant suit
in July 2000, pursuant to 42 U.S.C. § 1983, and state law. n14 As for the
federal claims, Plaintiff asserts that Defendants' actions, as well as the
court order policy requiring her to hire an attorney, obtain a court order, and
pay all attendant costs of the abortion, prevented her from exercising her
constitutional right to an abortion as guaranteed by the Fourteenth Amendment.
Plaintiff also asserts that an
abortion is a "serious medical need" to which Defendants were
deliberately indifferent in violation of the Eighth Amendment, and that by
requiring Plaintiff to carry her pregnancy to term, Defendants imposed cruel
and unusual punishment in violation of the Eighth Amendment.
Plaintiff further maintains that
by singling out abortion as the only type of medical care for which inmates
must hire an attorney, she was discriminated against on the basis of gender in
violation of the Fourteenth Amendment. Plaintiff asserts that throughout her
pregnancy, including the delivery, she experienced substantial physical pain
and discomfort, as well as psychological and emotional harm as a result of not
being permitted to terminate the pregnancy. She seeks money damages to
compensate her for the medical expenses she incurred as well as for physical
and emotional suffering, attorney's fees, and punitive damages.
Via
prior motions for summary judgment, all claims against the individual
Defendants in their personal or individual [*586] capacities have been dismissed
on the basis of qualified immunity. n15 Accordingly, the only section 1983
claims remaining in this suit are those against the TPCG and the individual
defendants in their official capacities. However, because a lawsuit against a
government official in his official capacity is the equivalent of an action
against the government entity he serves, Ashe v. Corley, 992 F.2d 540, 541 n.1
(5th Cir. 1993) (citing Will v. Michigan Dep't of State Police, 491 U.S. 58,
109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989)), the only defendants now facing
potential liability in this suit are the TPCG and the Sheriff, n16 the local
entities for which the other defendants were agents. n17 Consequently, the sole
issue remaining before this Court vis a vis Plaintiff's section 1983 claims is
whether Plaintiff was deprived of a constitutional right by the execution of a
policy adopted or promulgated by persons classified as "policy
makers" for the Sheriff's Office and/or TPCG. See Monell v. Department of Social Services,
436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (concluding that Congress
intended for local government entities to be included among those persons to
whom section 1983 applies).
THE
PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT
Plaintiff moves for partial summary judgment on the issue of liability
arguing that the undisputed facts show that Defendants adopted a policy
requiring Plaintiff to hire an attorney to obtain a court order before she
would be permitted to have an [*587] abortion, and that execution of this
policy caused a deprivation of Plaintiff's constitutional right to an abortion.
She argues that the alleged policy is supported by no valid penological
interests that would outweigh her constitutional right to obtain the abortion.
Further, she argues that abortion is a serious medical need for purposes
of the Eighth Amendment and that Defendants acted with deliberate indifference
to that need when they did nothing to facilitate her receiving the abortion.
Finally, she argues that the alleged policy deprived her of equal protection of
the laws because abortion was the only medical procedure for which a court
order was required, and given that only a female inmate would seek an abortion,
she was discriminated against on the basis of gender. She argues that the
policy fails under all levels of review employed under an equal protection
analysis.
In opposition to Plaintiff's motion for summary judgment and in support
of their cross motions for summary judgment, Defendants argue that there was no
"policy" involved because Plaintiff's situation was the first and
only request for an abortion, and that under 42 U.S.C. § 1983 an isolated
incident such as this one cannot, as a matter of law, rise to the level of a
"policy." Likewise, nearly all of the defendants deny that they are
"policy makers" for their respective entities such that any action on
their part would be imputed to their respective governmental entities under
section 1983.
Defendants also argue that Plaintiff's constitutional claims fail under the
causation element of section 1983 because Plaintiff's own attorney, rather than
any alleged governmental policy, caused her to forego the abortion by failing
to inform the district judge at the hearing on the motion to reconsider
sentence that Plaintiff wanted an abortion. n18 Next, they argue that as a
matter of law a non-therapeutic abortion sought due to financial and emotional
concerns is not a serious medical need for purposes of an Eighth Amendment
violation. Finally, they argue that the alleged policy is not unconstitutional
under the Fourteenth Amendment's guarantee of privacy because the policy is
supported by valid penological interests of inmate security as well as
avoidance of liability on the part of the Sheriff's Office. n19
[*588] LEGAL ANALYSIS
1.
Summary Judgment Standards
In
determining whether a party is entitled to summary judgment, the court views
the evidence in the light most favorable to the non-moving party. Littlefield
v. Forney Indep. School Dist., 268 F.3d 275, 282 (5th Cir. 2001) (citing Smith
v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998); Tolson v. Avondale Indus.,
Inc., 141 F.3d 604, 608 (5th Cir. 1998)). Summary judgment is appropriate if
the pleadings, depositions, answers to
interrogatories, 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
judgment as a matter of law. Id. (citing Celotex Corp. v. Catrett, 477 U.S.
317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The moving party bears the
burden, as an initial matter, of showing the district court that there is an
absence of evidence to support the nonmoving party's case. Id. (citing Celotex,
477 U.S. at 325, 106 S. Ct. at 2548). If the moving party fails to meet this
initial burden, the motion must be denied regardless of the nonmoving party's
response. Id.
2. Section 1983 Municipal Liability/Official
Capacity Claims
42 U.S.C. § 1983 provides in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory . . .
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 immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress . . . .
42 U.S.C. § 1983 (emphasis added).
In
the landmark case of Monell v. Department of Social Services, 436 U.S. 658, 98
S. Ct. 2018, 56 L. Ed. 2d 611 (1978), the United States Supreme Court reversed
its prior restrictive interpretation of section 1983 and held that local municipalities
are "persons" subject to liability under 1983. n20 436 U.S. at 662.
Imposition of section 1983 liability against a municipality is appropriate in
the limited circumstance of when a constitutional deprivation (or deprivation
of any federally guaranteed right) is caused by the execution of a policy or
custom of the municipality. Bowen v. Watkins, 669 F.2d 979, 989 (5th Cir. 1982)
(citing Monell, 436 U.S. at 694, 98 S. Ct. at 2037). "This requirement was
intended to distinguish acts of the municipality from acts of employees of the
municipality, and thereby make clear that municipal liability is limited to
action for which the municipality is actually responsible." Burge, 187
F.3d at 471 (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 479, 106 S.
Ct. 1292, 89 L. Ed. 2d 452 (1986)). In other words, respondeat superior does
not apply to municipal liability under section 1983. See Monell, 436 U.S. at 664 n.7, 98 S. Ct. at
2022. n21 Simply said, "the unconstitutional [*589]conduct must be directly
attributable to the municipality through some sort of official action or
imprimatur, i.e., an "official policy." Piotrowski v. City of
Houston, 237 F.3d 567, 578 (5th Cir. 2001).
An
"official policy" is (1) a policy statement, ordinance, regulation,
or decision that is officially adopted and promulgated by the government entity
or by an official to whom the entity has delegated policy-making authority, or
(2) a persistent, widespread practice of officials or employees which although
not authorized by officially adopted and promulgated policy is so common and well-settled
as to constitute a custom that fairly represents the entity's policy. Cozzo v. Tangipahoa Parish Council, 279 F.3d
273, 289 (5th Cir. 2002) (citing Johnson v. Moore, 958 F.2d 92, 94 (5th Cir.
1992)). The municipal policy or "official policy" requirement may be
met when the appropriate officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained of is simply an
implementation of that policy. Burge,
187 F.3d at 471 (quoting Bryan County Comm'r v. Brown, 520 U.S. 397, 117 S. Ct.
1382, 137 L. Ed. 2d 626 (1997) (Souter, J., dissenting)).
Because a municipality necessarily acts through its agents, the policy
at issue must be set by a "policy maker," i.e., the government's
lawmakers, "or by those whose edicts or acts may fairly be said to
represent official policy." Burge, 187 F.3d at 468 (quoting Monell, 436
U.S. at 694, 98 S. Ct. 2018; McMillian v. Monroe County, 520 U.S. 781, 784-85,
117 S. Ct. 1734, 138 L. Ed. 2d 1 (1997)). When an official has final authority
in a matter involving the selection of goals or of the means of achieving
goals, his choices represent governmental policy. Id. (citing Schneider v. City
of Atlanta, 628 F.2d 915, 920 (5th Cir. 1980); Schnapper, Civil Rights
Litigation After Monell, 79 Colum. L. Rev. 213, 213-21 (1979)). Whether a
particular official is a policy maker is a question of state law. Id. (citing
McMillian, 520 U.S. at 786, 117 S. Ct. 1734). On the policy making inquiry, the
court's task is to "identify those officials or governmental bodies who
speak with final policymaking authority for the local government actor
concerning the action alleged to have caused the particular constitutional or
statutory violation at issue." Burge v. Parish of St. Tammany, 187 F.3d
452, 468 (5th Cir. 1999) (citing McMillian v. Monroe County Ala., 520 U.S. 781,
138 L. Ed. 2d 1, 117 S. Ct. 1734 (1997)).
Because municipal liability is imposed pursuant to execution of a policy
or custom, a single, isolated unconstitutional action by "rogue"
employees of the municipality will almost never trigger municipal liability
under section 1983. Piotrowski, 237 F.3d at 578 (citing Bennett v. City of
Slidell, 728 F.2d 762, 768 n.3 (5th Cir. 1984); McKee v. City of Rockwall, 877
F.2d 409, 415 (5th Cir. 1989)).
However, a plaintiff may establish a custom or policy based on a single
isolated decision made in the context of a particular situation if the decision
was made by an authorized policy maker in whom final authority rested regarding
the action ordered. Cozzo, 279 F.3d at
289 (citing City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99
L. Ed. 2d 107 (1988); Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996)).
[*590] In sum, municipal liability under section 1983 requires proof of three
elements: a policy maker; an official policy; and a violation of constitutional
rights whose "moving force" is the policy or custom, i.e., causation.
Piotrowski, 237 F.3d at 578 (citing Monell, 436 U.S. at 694, 98 S. Ct. at
2037).
The
initial inquiry, however, in any section 1983 suit is whether the plaintiff has
in fact been deprived of a right "secured by the Constitution and
laws." Webster v. City of Houston, 735 F.2d 838, 844, reh'g granted, 739
F.2d 993 (5th Cir. 1984) (citing Parratt v. Taylor, 451 U.S. 527, 101 S. Ct.
1908, 68 L. Ed. 2d 420 (1981)).
With this legal framework in mind, the Court now turns its attention to
the issue of whether, assuming arguendo that a municipal policy or custom
existed, n22 Plaintiff was deprived of a right guaranteed by the federal
constitution.
In light of the foregoing, Defendants' argument that there can
be no policy here because Defendants were responding to the first and only
request for an inmate abortion is unconvincing. The "isolated or single
incident" cases, which hold that a single act by municipal employees is
insufficient without more to constitute a municipal policy under section 1983,
e.g., Piotrowski, 237 F.3d at
580-81, simply do not preclude liability where the policy was promulgated as a
means to address the specific incident giving rise to the constitutional claim. "It is well-established that a
municipality may be held liable for 'course[s] of action tailored to a specific
situation and not intended to control decisions in later situations,' provided
that 'the decision to adopt that particular course of action is properly made
by that government's authorized decisionmakers.'" Gonzalez v. Ysleta
Indep. Sch. Dist., 996 F.2d 745, 754 (5th Cir. 1993) (citing Pembaur v. City of
Cincinnati, 475 U.S. 469, 480-81, 106 S. Ct. 1292, 1298-99, 89 L. Ed. 2d 452
(1986)). Of course, in this case, Sheriff Larpenter contends that the policy
was not enacted specifically to deal with Plaintiff's request for an abortion
but rather was always in effect to deal with any type of request for an
elective procedure.
Plaintiff has also argued that the court order policy was
attributable to the TPCG via the policy making authority of Ed Byerly, as chief
medical administrator of the prison. Although it is undisputed that Byerly was
among those who informed Plaintiff of the court order policy, there is really
no evidence of record that Byerly actually promulgated the policy. As a
practical matter, however, the Court notes that the medical staff likely had
some complicity in breathing life into the policy because under Louisiana law,
Byerly was prohibited from facilitating a non-therapeutic abortion, see La.
R.S. 1299.34.5. Thus, even absent a court order policy by the Sheriff, Byerly
surely would have required Plaintiff to obtain a court order authorizing the
procedure prior to his participation in procuring the abortion for Plaintiff.
[*591] 3. Fourteenth Amendment Claim-Right to
Privacy
Plaintiff asserts that
Defendants' actions, as well as the court order policy requiring her to hire an
attorney, obtain a court order, and pay all attendant costs of the abortion,
prevented her from exercising her constitutional right to an abortion, a right protected
by the Fourteenth Amendment's right to privacy. She claims that her
constitutional right to choose to terminate her pregnancy survived
incarceration such that the Sheriff and medical staff were required to ensure
that she obtain an abortion while in the Sheriff's custody. n23
The right to privacy protected
by the Fourteenth Amendment affords
protection to personal decisions relating to marriage, procreation,
contraception, family relationships, and childrearing." Planned Parenthood
v. Casey, 505 U.S. 833, 870, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (citing
Carey v. Population Servs. Int'l, 431 U.S. 678, 685, 52 L. Ed. 2d 675, 97 S.
Ct. 2010, 2016). An individual has the right to be free from unwanted
governmental intrusion into matters so fundamentally affecting a person as the
decision whether to bear or beget a child. Id. (citing Eisenstadt v. Baird, 405
U.S. 438, 453, 31 L. Ed. 2d 349, 92 S. Ct. 1029, 1038).
In
Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. Ed. 2d 743 (2000),
the Supreme Court recently summarized the well-established principles
surrounding a woman's right to an abortion as that right has evolved in the
wake of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973),
decided nearly thirty years ago. First, before viability, a woman has the right
to choose to terminate her pregnancy. Carhart, 530 U.S. at 921, 120 S. Ct. at
2604 (citing Planned Parenthood v. Casey, 505 U.S. 833, 870, 112 S. Ct. 2791,
120 L. Ed. 2d 674 (1992)).Second, a law which imposes an undue burden on the woman's
decision before fetal viability is unconstitutional. Id. A regulation or
restriction constitutes an "undue burden" when it has the purpose or
effect of placing a substantial obstacle in the path of a woman seeking to
abort a nonviable fetus. Id. Finally, subsequent to viability the state may
regulate or even proscribe abortion except where necessary for the preservation
of the life or health of the mother. Id.
In recapitulating the case law as
it developed post-Roe, the Supreme Court has recognized that all liberties,
including abortion, can be subject to state regulation without resulting in a
constitutional deprivation. See
Casey, 505 U.S. at 873-74, 112 S. Ct. at 2818-19. In other words, some
laws do in effect make a right more difficult to exercise but those laws are
not ipso facto an infringement of that right. Id. In particular, where abortion
is concerned, numerous forms of state regulation might have the incidental
effect of decreasing the availability of an abortion by making it more difficult
to procure but where the law serves a valid purpose, "one not designed to
strike at the right itself," the
incidental effect of making it more difficult or more expensive to procure the
procedure is not enough to invalidate the law. Id.
[*592] Beyond recognizing that
the right to choose is not completely immune from state regulation, the Supreme
Court has gone further, holding for instance that the government has no duty to
fund abortions in order to facilitate an indigent woman's ability to obtain an
abortion, even where the state chooses to fund pro-life choices. Maher v. Roe, 432 U.S. 464, 469-70, 97 S.
Ct. 2376, 2380, 53 L. Ed. 2d 484 (1977). Likewise, laws strictly forbidding the
use of public funding to pay for abortions are not unconstitutional. See Harris
v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980). Moreover, the
government can permissibly condition receipt of federal funding for services
related to childbirth on the state's abstention from facilitating abortions in
any way, including counseling and referral. See Rust v. Sullivan, 500 U.S. 173, 111 S. Ct. 1759, 114 L. Ed. 2d
233 (1991). The state can validly ban any public employee within the scope of
his employment from performing or assisting in an abortion, and preclude the
use of public facilities for such purposes.
Webster v. Reproductive Health Servs., 492 U.S. 490, 507, 109 S. Ct.
3040, 3050-51, 106 L. Ed. 2d 410 (1989); see also H.L. v. Matheson, 450 U.S. 398, 413, 101 S. Ct. 1164, 1173, 67
L. Ed. 2d 388 (1981) ("The Constitution does not compel a state to
fine-tune its statutes so as to
encourage or facilitate abortions.").
Considering the entire body of
abortion jurisprudence from the High Court, all cases decided outside of the
prison context where one would expect the right's scope to be at its broadest,
it is resoundingly clear that the nature of the abortion right, as held by the
United States Supreme Court, is one of protecting a woman's freedom of
choice-it does not translate into an affirmative constitutional obligation on
the part of the government to facilitate abortions for its citizens.
See Harris v. McRae, 448 U.S. 297,
314-15, 100 S. Ct. 2671, 2687, 65 L. Ed. 2d 784 (1980). Roe v. Wade "did
not declare an unqualified 'constitutional right to an abortion, . . . .'"
Rather, the right protects the woman from unduly burdensome interference with
her freedom to decide whether to terminate her pregnancy." Maher, 432 U.S.
at 473-74, 97 S. Ct. at 2382. In short, the government has no constitutional
obligation whatsoever to facilitate abortions, and can further restrict that
right short of placing an undue burden on the woman's right to choose.
The more difficult issue with
respect to this case of course is determining to what extent, if at all, a
woman's constitutional right to choose an abortion survives in the prison
context. It is well-accepted that prison walls do not completely obliterate an
inmate's constitutional rights and that federal courts have a duty to protect
the constitutional rights of those incarcerated. Turner v. Safley, 482
U.S. 78, 84, 107 S. Ct. 2254, 2259, 96 L. Ed. 2d 64 (1987). However, it also
well-accepted that lawful incarceration brings about the necessary curtailment
of many constitutional rights. Southerland v. Thigpen, 784 F.2d 713, 716 (5th
Cir. 1986) (quoting Pell v. Procunier, 417 U.S. 817, 94 S. Ct. 2800, 41 L. Ed.
2d 495, 71 Ohio Op. 2d 195 (1974)). Where a state penal system is involved,
federal courts must accord a certain level of deference to the appropriate
prison authorities. Turner, 482 U.S. at
85, 107 S. Ct. at 2259 (citing Procunier v. Martinez, 416 U.S. 396, 405, 94 S.
Ct. 1800, 1807, 40 L. Ed. 2d 224, 71 Ohio Op. 2d 139 (1974)). To do otherwise
would be to ignore the inordinately difficult undertaking of running a
prison-an undertaking requiring expertise, planning, and the commitment of
resources, all of which are peculiarly within the province of the other two
branches of government. Id. Furthermore, "loss of freedom of choice and
privacy are inherent incidents of confinement." Southerland, 784 F.2d at
[*593] 717. Although our Constitution provides numerous protections to the
accused, imprisonment pursuant to conviction "necessarily entails a far
greater loss of rights." Id.
In
light of these principles, the Supreme Court has recognized the need to
formulate a standard of review for prisoners' constitutional claims that is
both responsive to the protection of constitutional rights and the policy of
judicial restraint and deference to prison authorities. Id. In formulating this
standard of review, the Court rejected any type of heightened scrutiny that
might otherwise be applicable in determining the constitutionality of state
regulations that burden fundamental constitutional rights outside the prison
context. 482 U.S. at 87, 107 S. Ct. at
2260. Rather, the proper inquiry in the prison context is whether a prison
regulation that burdens fundamental rights is "reasonably related" to
legitimate penological objectives. n24 482 U.S. at 89, 107 S. Ct. at 2261.
Several factors are relevant in determining the reasonableness of a
prison regulation that burdens a constitutionally guaranteed right. First,
there must be a "valid rational connection" between the prison
regulation and the legitimate governmental interest put forth to justify it. 482 U.S. at 89, 107 S. Ct. at 2262 (citing
Block v. Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L. Ed. 2d 438
(1984)). The governmental objective must be a legitimate and neutral one and
the logical connection between the regulation and the asserted goal cannot be so
remote as to render the policy arbitrary or irrational. Id.
A
second factor relevant in determining the reasonableness of a prison
restriction is whether there are alternative means of exercising the right that
remain open to prison inmates. Id. Where other avenues remain open for the
exercise of the asserted right, "courts should be particularly conscious
of the 'measure of judicial deference owed to corrections officials . . . in
gauging the validity of the regulation.'" Id. (citing Pell v. Procunier,
417 U.S. 817, 827, 94 S. Ct. 2800, 2806, 41 L. Ed. 2d 495 (1974)). A third
consideration is the impact accommodation of the asserted right will have on
guards, other inmates, and on the allocation of prison resources. Id. In the
necessarily closed environment of the correctional institution, few changes
will have no ramifications on the liberty of others or on the prison's limited
resources for preserving constitutional order. Id.
Finally, the absence of ready alternatives is evidence of the reasonableness
of a prison regulation. Id. (citing Block, 468 U.S. at 587, 104 S. Ct. at
3233). This is not, however, a "least restrictive alternative" test
but if an inmate can point to an alternative that fully accommodates the
prisoner's rights at a de minimis cost to valid penological interests, a court
may consider that as evidence that the regulation does not satisfy the
reasonable relationship standard. Id. The Turner reasonableness standard
analysis applies even where the challenged regulation prohibits rather than
merely limits the exercise of a particular constitutional right. See O'Lone v. Estate of Shabazz, 482 U.S.
342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987). In sum, prisoners are to be
accorded those rights not fundamentally inconsistent with imprisonment itself
or incompatible with the objectives of incarceration. Hudson v. Palmer, 468
U.S. 517, 523, 104 S. Ct. 3194, 3198, 82 L. Ed. 2d 393 (1984).
[*594] Applying these standards, the United States Supreme Court has recognized
that even the most sacred of our fundamental constitutional rights are subject
to some amount of restriction in the prison context; restriction that would be
impermissible outside the prison
context where these same rights are likewise not without limit. See, e.g., Lewis v. Casey, 518 U.S. 343, 349, 116 S.
Ct. 2174, 135 L. Ed. 2d 606 (1996) (right of access to courts); Jones v. North
Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 97 S. Ct. 2532, 53 L. Ed.
2d 629 (1977) (First Amendment rights); Turner v. Safley, 482 U.S. 78, 96 L.
Ed. 2d 64, 107 S. Ct. 2254 (1986) (inmate to inmate correspondence); Hudson v.
Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984) (Search and
Seizure); Turner, 482 U.S. at 95 (family life and reproductive life).
Neither the Supreme Court nor
the Fifth Circuit has ever addressed the extent to which the government may
validly regulate or restrict access to abortions in the context of
incarceration.
It is against this legal
framework that this Court must evaluate the policy at issue in this case. As an
initial matter, the Terrebonne policy does not prohibit a prisoner from
obtaining an abortion. Rather, in the case of an elective, non-therapeutic
abortion such as the one Victoria W. sought in this case, the Sheriff and/or
TPCG (via the prison's medical staff) required a court order prior n25 to
either releasing Plaintiff on her own recognizance to obtain the abortion, or
alternatively a court order directing the Sheriff and/or TPCG to accommodate
Plaintiff's request for an abortion as would have happened had the abortion
been medically required to save her life. n26 They further required Plaintiff
to pay for the entire cost of the procedure.
In
support of the court order policy, Defendants cite the penological interests of
inmate security and avoidance of liability on the part of the Sheriff's Office.
n27 Inmate security is unarguably a valid penological concern and the Supreme
Court has so held. See Block v.
Rutherford, 468 U.S. 576, 586, 104 S. Ct. 3227, 3232, 82 L. Ed. 2d 438 (1984).
Further, under Louisiana law, the Sheriff faces potential liability for damages
sustained by those in his custody during an escape attempt or should he be
found negligent in some other way for releasing a prisoner. See Wilson v. State, Dept. of Pub. Safety
& Corrections, 576 So. 2d 490 (La. 1991). Any such damages are payable from
the public funds allocated to the Sheriff's office or by his insurer. Thus, the
Sheriff's interest and duty in avoiding liability is unarguably a valid
penological objective. The issue then is [*595] whether the Terrebonne court order policy is reasonably related to
these proffered legitimate penological objectives.
Considering the Turner factors
pertinent to this case, the Court concludes that the court order policy is
constitutionally permissible. First of all, there is a valid, rational
connection between the court order policy, inmate security, and avoidance of
liability. Every time a prisoner is taken from the confines of the prison
facility, security and liability are unarguably issues of concern. While such
"custodial releases" are inevitable such as for court appearances or
for medically necessary treatment not available onsite in the prison, the
Sheriff certainly has a valid interest in addressing these two issues of
concern by attempting to limit the circumstances under which such releases
occur. Thus, where an inmate desires a medical procedure available only
offsite, and one which is completely elective in nature and unnecessitated by
medical concerns, it is certainly reasonable for the prison authorities to require
the imprimatur of the sentencing authority prior to tackling the security
concerns of transporting a prisoner offsite, striving to maintain adequate
security throughout the course of her treatment, and accepting the attendant
potential liability faced anytime a prisoner in the Sheriff's custody is
brought outside the prison confines. n28
The facts of this case only
serve to demonstrate this point. Abortions are not available in Terrebonne
Parish. Accordingly, the sheriff would have been required to transport
Plaintiff to New Orleans, over an hour away from the prison, in order to have
the abortion. Obtaining the abortion involved far more than a short trip across
town. As such, the concerns of security and potential liability were unarguably
multiplied. Further, Victoria W. had a criminal history, including some violent
episodes, and had most recently been convicted for battery when her probation
was revoked. Thus, security concerns and potential liability were clearly
implicated here.
Next, accommodating the abortion
request would unarguably have an effect on the prison guards and prison
resources generally. As noted above, the closest facility for abortions is in New Orleans which requires at least
one sheriff's deputy to be gone from the facility and remain with Plaintiff at
all times in New Orleans. One or more guards traveling to New Orleans with
Plaintiff to accommodate her request deprives the prison of their presence and
services, requiring the prison, if possible, to replace them for the duration
of Plaintiff's absence. Thus, a crucial resource is affected.
Finally, there is an absence of
ready alternatives for accommodating the abortion request. In fact, the
alternative Plaintiff argues for, i.e., eliminating the court order policy
altogether, would leave the sheriff with no protections whatsoever and cause
him to bear the entire risk of accommodating Plaintiff's desire for an elective
procedure.
In sum, assuming arguendo that the right to choose to terminate a
pregnancy survives incarceration, a premise in and of itself debatable under
the available jurisprudence, the court order policy was a [*596] reasonable
restriction on Plaintiff's access to an abortion, and was not an
"exaggerated response" to prison concerns. The policy did not
absolutely prohibit or deny access to an abortion. Rather, the policy is a
clear recognition of the fact that Plaintiff was incarcerated and therefore not
free to come and go as she pleased. Some curtailment of even the most
fundamental of rights is valid in the prison context, and the Court finds
Plaintiff's right to choose between child birth and abortion was no more
fundamental than other rights that are subject to some amount of curtailment in
prison. Simply said, "it is incarceration that impinges upon the choice to
abort a pregnancy, not a [court order] regulation." Monmouth County
Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326, 352 (Mansmann, J.,
concurring). Accordingly, the Court concludes that the court order policy did not
deprive Plaintiff of a constitutionally protected right. n29
In support of her claim,
Plaintiff relies on Monmouth County Correctional Institutional Inmates v.
Lanzaro, 834 F.2d at 328 (3d Cir. 1987), cert. denied, 486 U.S. 1006, 108 S.
Ct. 1731, 100 L. Ed. 2d 195 (1988), the only case to find a court order policy
like the one at issue in this case unconstitutional. n30 In a sweeping
decision, the Third Circuit Court of Appeals went far beyond finding that the
right to terminate a pregnancy survives incarceration. The Monmouth court not
only found that the court order policy n31 was unsupported by valid penological
objectives, but went on to conclude that the abortion right survived
incarceration so much as to require the prison to fund the procedure for
inmates unable or unwilling to pay. n32 Id. at 341. The court also concluded
that the Eighth Amendment required the
county to provide abortions to its inmates because abortion is a serious
medical need. Id. at 347-48.
As
its sole justification for the policy, the county had asserted that
unsurmountable administrative and financial burdens [*597] would result if the
county were required to provide access to and funding for elective
nontherapeutic abortions. n33 The court rejected that justification concluding
that if a mere lack of funding were permitted to justify such a restriction,
then the state could conceivably deny virtually any constitutional right under
that same argument. See id. at
336-37 & n.17. On its own, the court went on to address whether legitimate
security concerns, one of the same justifications offered in the instant case,
could support the policy. Id. at 338.
The court rejected that justification. Id. In particular, the Monmouth court
found no greater security risk in providing an elective non-therapeutic
abortion at an outside facility, than medically necessary treatment for which
no court order was necessary. Id. Thus, the court concluded that the court
order policy centered on the nature of the treatment rather than the gravity of
any perceived security risk. Id.
This Court respectfully
disagrees with the Monmouth court. As discussed above, the Court
recognizes that when the security issue is viewed in its most narrow sense,
i.e., a comparison of the security risks attendant to an offsite medically
necessary procedure versus one purely elective in nature, the efficacy of the
court order policy vis a vis security is greatly reduced. As discussed above,
prison authorities have a valid interest in minimizing instances in which their
inmates are transported about the state in search of non-medically indicated
procedures, an aspect of security that the Monmouth court did not consider.
Besides its failure to recognize
the validity of any restriction on the abortion right, perhaps the most
troubling aspect of the Monmouth decision, is its imposition of an affirmative
duty on the part of the government to preserve inviolate the abortion right
during incarceration--a stance wholly at odds with the jurisprudence
interpreting prisoner access to virtually every other right guaranteed by the
Constitution. The gist of the Monmouth decision is that incarceration
serves to broaden the right to abortion rather than curtail it any way--a
result completely opposite from the norm. Under Monmouth, inmates are given far
greater protections of the abortion right in prison than they ever would have
been entitled to in the free world. n34 Such a conclusion is clearly at odds
with the jurisprudence of the High Court as well as that in the Fifth Circuit
and accords to abortion greater protections than any other constitutional right
sought to be exercised within the confines of prison walls. Thus, while it is
widely recognized that even the most cherished of constitutional rights are
subject to curtailment or even complete prohibition for the incarcerated,
Monmouth swings the pendulum in the other direction by elevating the abortion
right above all others--including other familial and reproductive rights. See,
e.g., Southerland v. Thigpen, 784
F.2d 713 (5th Cir. 1986) (holding that female inmate's privacy right of breast feeding
her newborn [*598] baby did not survive incarceration); Hernandez v. Coughlin,
18 F.3d 133 (2d Cir. 1994) (holding that inmate has no constitutionally
protected right to engage in conjugal visits); Goodwin v. Turner, 908 F.2d 1395
(8th Cir. 1990) (holding that
fundamental right of procreation does not survive incarceration to the extent
that inmate has a right to artificially inseminate his wife).
Further, the exceptionally broad
reach of Monmouth is demonstrated best by the court's requirement that the
prison accommodate the abortion right in those cases where the inmate is
unwilling or unable to pay for the procedure--even where public funds would
necessarily have to be allocated in order to accommodate the inmate's request.
Although one of the most well-settled principles of abortion jurisprudence is
that the state has no obligation to fund, procure, or facilitate abortions for
its citizens, see, e.g., Maher v.
Roe, 432 U.S. 464, 469-70, 97 S. Ct. 2376, 2380, 53 L. Ed. 2d 484 (1977), the
Monmouth court nevertheless concluded that the state's custody of the inmate imposed
such a burden on the prison system. n35 Thus, if Monmouth were followed, the
inmate incarcerated for a breach of the state's laws actually comes out ahead
of the game with respect to receiving a non-medically necessary abortion.
Finally, Monmouth was decided in
1987, prior to the post-Roe Supreme Court cases such as Planned Parenthood of
Southeastern Pennsylvania v. Casey, which clarified, via the undue burden test,
the valid regulations that the state can place on the abortion right even where
the recipient is not serving a sentence for a violation of the law.
Accordingly, this Court finds the Monmouth decision unpersuasive and therefore
declines to follow it.
For the foregoing reasons, the Court
concludes that the court order policy was constitutionally permissible.
Plaintiff has failed show that she was deprived of a right guaranteed by the
Fourteenth Amendment.
Causation Under Section 1983
Although the Court concludes that Victoria W. was not deprived of a
constitutional right, assuming arguendo that she retained an absolute right to
an abortion while incarcerated, her section 1983 claim faces another hurdle in
that in order to prevail, she must show that the court-order policy caused the
deprivation of that right. Based upon the undisputed evidence in the record,
Plaintiff cannot meet that burden.
As
discussed above, the only remaining claims in this case are official
capacity/municipal liability claims. Such claims limit liability to those
deprivations directly attributable to the municipality via execution of one of its policies. The policy must be the
cause in fact of the deprivation. Spiller v. City of Texas City Police Dep't,
130 F.3d 162, 167 (5th Cir. 1997). To satisfy the cause in fact requirement,
the policy must be the "moving force" of the constitutional
violation. Id.; Piotrowski, 237 F.3d
at 578 (citing Monell, 436 U.S. at 694, 98 S. Ct. at 2037).
The
undisputed facts of this case preclude a finding that the court order policy
itself deprived Plaintiff of her right to an abortion. It is undisputed that
Plaintiff was given access to an attorney and was [*599] able to retain an
attorney. Plaintiff was afforded a hearing before the district judge within the
time frame allowed for an abortion. For reasons unclear, the district judge was
never made aware of Plaintiff's desire for an abortion. The Court has no reason
to doubt that Plaintiff would have received the abortion pursuant to the court
order policy had the district judge only been informed of her request. n36 Nor
does Plaintiff contend otherwise. Thus, the proximate cause of Victoria W.'s
inability to obtain the abortion was not the court order policy but rather the
fact that no one informed the district judge of her true desire. n37
Plaintiff argues, however, that the causation requirement is met because
"but for" the court order policy, the entire fiasco before the
district judge would have been avoided. Relying on causation principles from
tort law, she argues that her inability to timely obtain the abortion was
completely foreseeable to Defendants, and that foreseeability is the
"polestar" of causation. Plaintiff argues that under cases like Perniciaro
v. Brinch, 384 So. 2d 392 (La. 1980), which recognize a tortfeasor's liability
for aggravation of a pre-existing condition, Defendants are liable because the
court order policy "aggravated" Plaintiff's pre-existing condition,
in this case her pregnancy. Plaintiff's Memorandum in Support at 5 & n.4.
Although Plaintiff's application of the causation principles surrounding
pre-existing conditions under personal injury tort law is interesting and
somewhat creative, the Court finds such an argument to be too much of a
stretch. While common law tort principles might very well hold a tortfeasor
liable for an array of damages sustained at various stages of the causation
chain, municipal liability under
section 1983 has very specific causation requirements which limit the liability
of the municipality to those acts directly attributable to the policy at issue.
Thus, while the court order policy unarguably played a part in the causation
chain under a "but for" analysis, the direct and most proximate cause
of Plaintiff's inability to obtain the abortion was the failure of her attorney
to inform the district judge of Plaintiff's desire for an abortion, if in fact
that occurred.
As
for Plaintiff's foreseeability argument, the Court fails to see why, assuming
Plaintiff had in fact told her attorney about the abortion, it would be
foreseeable that an attorney at law willing to represent Plaintiff, knowing
that she wanted an abortion, would then completely ignore his client's wishes
as to the goals of the representation. This is especially so in light of the
ethical ramifications of such action by the attorney. Plaintiff argues that the
imminent failure of the court order policy in her case was not only foreseeable
but actually known to Defendants in the wake of the botched hearing. The Court
nevertheless fails to see how this circumstance can overcome the fact that the
entire failure of the court order policy and Plaintiff's inability to obtain an
abortion were directly [*600] attributable to her attorney's failure to apprise
the sentencing court of her true wishes. In fact, had the attorney done so,
there is no reason to doubt that the court order would have issued and
Plaintiff would have obtained the abortion thereby giving rise to no cause of
action to bring this lawsuit in the first place. Thus, Plaintiff's Fourteenth
Amendment claim is weakened even further by the causation problem inherent in
the facts of this case.
4. Eighth Amendment Claim--Cruel and Unusual
Punishment
Plaintiff argues that abortion
is a "serious medical need" for Eighth Amendment purposes, and
therefore, the TPCG and/or the Sheriff were constitutionally obligated to
provide her an abortion. She argues that their failure to do so constitutes
deliberate indifference to that "serious medical need." Recognizing
that neither the United States Supreme Court nor the Fifth Circuit have found
abortion to be a serious medical need, Plaintiff relies on language used in Roe
v. Wade and other abortion cases in which the Supreme Court has recognized the
"hardship" associated with seeing an unwanted pregnancy to term.
Plaintiff's Motion for Summary Judgment at 28.
At
its heart, the Eighth Amendment , applicable to the states through the Due
Process Clause of the Fourteenth Amendment, proscribes "physically
barbarous punishments." Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct.
285, 290, 50 L. Ed. 2d 251 (1976) (citing Gregg v. Georgia, 428 U.S.153, 96 S.
Ct. 2909, 49 L. Ed. 2d 859 (1976); Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590,
2 L. Ed. 2d 630 (1958); Weems v. United States, 217 U.S. 349, 54 L. Ed. 793, 30
S. Ct. 544 (1910)). "The Amendment embodies 'broad and idealistic concepts
of dignity, civilized standards, humanity, and decency.'" Id. (quoting
Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968)). Further, punishments
which are incompatible with "the evolving standards of decency that mark
the progress of a maturing society" are repugnant to the Eighth Amendment.
Id. (quoting Trop, 356 U.S. at 101, 78 S. Ct. at 598).
In
Estelle v. Gamble, the Supreme Court concluded that these "elementary
principles" of the Eighth Amendment noted above establish the government's
obligation to provide medical care for those whom it is punishing by
incarceration. 429 U.S. at 102, 97 S. Ct. at 290. Because denial of medical care may result in pain and
suffering that serves no penological purpose, deliberate indifference to
serious medical needs of prisoners is proscribed by the Eighth Amendment. Id.
at 104, 97 S. Ct. at 291. Plaintiff must prove objectively that he was exposed
to a substantial risk of serious harm. Lawson v. Dallas County, 286 F.3d 257,
262 (5th Cir. 2002) (citing Estelle, 429 U.S. at 104, 97 S. Ct. 285).
Applying these standards when evaluating "serious medical
needs," the Fifth Circuit has found that potentially life-threatening
decubitus ulcers on a paraplegic inmate constitute a serious medical need.
Lawson, 286 F.3d at 262. The court likewise has held that a broken jaw is a
"serious medical need." Harris v. Hegmann, 198 F.3d 153, 159-60 (5th
Cir. 1999). Other courts have found that a herniated disc requiring corrective
surgery, Starbeck v. Linn County Jail, 871 F. Supp. 1129, 1145 (N.D. Iowa
1994), coronary artery disease, Brewer v. Blackwell, 836 F. Supp. 631, 643
(S.D. Iowa 1993), risk of suicide, Gregoire v. Class, 236 F.3d 413, 417 (8th
Cir. 2000), and heart attack, Tlamka v. Serrell, 244 F.3d 628 (8th Cir. 2001),
are all serious medical needs for Eighth Amendment purposes.
[*601] Considering the foregoing
principles and examples of serious medical needs under the Eighth Amendment,
the Court is unpersuaded that a non-therapeutic abortion sought due to
financial and emotional reasons is a serious medical need for Eighth Amendment
purposes. When determining which types of treatment constitute a "serious
medical need," the Court cannot lose sight of the Eighth Amendment context
in which that analysis is made. At its heart, the Eighth Amendment protects
prisoners from cruel and unusual punishment and needless suffering. An elective
abortion sought for non-medical reasons such as the one at issue in this case
is simply lacking in similarity and intensity to the other medical conditions
that have been found to be serious medical needs under the Eighth Amendment.
That is not to say that an abortion
is never a serious medical need. Surely if the abortion had been necessary to
save Plaintiff's life then it would have been a serious medical need for which
the Eighth Amendment would have
required Defendants to provide. In other words, under the facts and
circumstances of a particular case, an abortion could very well be a serious
medical need. However, the Court is not persuaded by Plaintiff's argument that
an abortion, regardless of the medical necessity involved, is per se a serious
medical need for Eighth Amendment purposes. The inconvenience and financial
drain of an unwanted pregnancy are simply insufficient in terms of the type of
egregious treatment that the Eighth Amendment proscribes. Accordingly, the
Court concludes that Defendants did not violate Plaintiff's Eighth Amendment
rights.
5. Equal Protection Claim
Plaintiff argues that the
Terrebonne policy singled out abortion as the only type of medical care for
which a court order was required, thereby discriminating against her on the
basis of gender. Plaintiff also argues that the court order policy violates
equal protection guarantees because it impermissibly differentiates between
abortion and other medical treatments. She argues that the policy fails under
all levels of equal protection analysis from strict scrutiny to rational basis.
Plaintiff's Memorandum in Support at 37-44.
Regardless of the level of scrutiny
applied, Plaintiff's equal protection
claim fails at the outset because there is no evidence that abortion was
singled out as the only elective procedure for which a court order was
required. Although Plaintiff argues that Defendants have failed to produce
examples of court orders obtained in conjunction with other elective
procedures, Defendants do not bear the burden of disproving Plaintiff's equal
protection allegations. Plaintiffs have simply failed to proffer sufficient
evidence to create any issue of fact as to the scope of the court order policy.
n38 The Court therefore finds Plaintiff's equal protection challenge
unpersuasive.
CONCLUSION
The Court having considered the
evidence in the record in light of the applicable law and numerous arguments
presented by able counsel for all parties, concludes that Defendants are
entitled to judgment as a matter of law on all federal claims brought against
them in their official capacities, as well as the claims brought directly
against the TPCG municipality, pursuant to 42 U.S.C. § 1983. Consequently, all
of Plaintiff's federal claims are dismissed with prejudice. Further, the Court
dismisses all of Plaintiff's state law claims without prejudice, [*602]
declining to retain jurisdiction over those claims absent an independent basis
for subject matter jurisdiction. See 28 U.S.C. § 1367(c)(3).
New
Orleans, Louisiana, this 20th day of May, 2002.
JAY
C. ZAINEY
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 Victoria W. is a
pseudonym. Plaintiff's true identity has been kept under seal pursuant to an
order of this Court. Rec. Doc. 76.
n2 It is undisputed that an
abortion was never medically necessary. To the contrary, Plaintiff has always
maintained that she sought to terminate the
pregnancy for emotional and financial reasons. Although Plaintiff
asserts that the pregnancy was "high risk," at oral argument counsel
for Plaintiff clarified that any "high risk" aspects of Plaintiff's
pregnancy were relevant to the issue of damages more so than to any
constitutional issue.
n3 Exhibits Vol. I., at F;
Exhibits Vol. III., at W.
n4 Exhibits Vol. I, at F, P
13. Byerly, on the other hand, states that he merely suggested that she contact
an attorney to petition the court for her in light of the fact that the
abortion was not medically necessary. Given that the procedure was not
medically necessary, his department was precluded from providing it as part of
inmate medical care. Deposition Excerpts, at 2, p.106.
n5 Plaintiff had appeared
pro se at the proceeding for revocation of her probation and therefore had no
attorney of her own at the time of her most recent incarceration. The attorney she
contacted, Howard Marcello, had been previously retained to represent
Plaintiff's daughter in an unrelated matter.
n6 Deposition Excerpts, Vol.
I, at 9, p.184. Byerly, on the other hand, denies ever having spoken to
Marcello. Id. at 2, p.140.
n7 Exhibits Vol. I, at B.
n8 Id. at A.
n9 Dodd was not an attorney
for the Parish. Rather, defendant Dave Norman held that position. Other than
receiving a courtesy copy of the Dodd letter, Norman had no other involvement
in the events giving rise to this suit. Rec. Doc. 169, Exhibit 3.
n10 Rec. Doc. 170, Exhibit
E.
n11 Id. at 4.
n12 In recounting the
courthouse appearance, Plaintiff seemingly attempts to implicate the Sheriff's
Office as having been at fault for her not being in the courtroom. See Exhibits
Vol. I, at F, P 27; Supplemental Exhibits, at 7, p.153. However, there is no
evidence that her attorney or the district judge ever requested her presence in
the courtroom. Furthermore, Plaintiff admits that the deputy sheriff in whose
custody she remained called the courtroom several times to see if her presence
was required. Supplemental Exhibits, at 7, p.153.
n13 Rec. Doc. 130, Exhibit
C.
n14 Plaintiff alleges
pendent Louisiana state law claims for intentional and negligent infliction of
emotional distress, as well as violations of the Louisiana Constitution.
Plaintiff's Complaint at PP 103-128.
n15 Rec. Doc. 67 (dismissing
with prejudice all individual capacity claims as to Larpenter, Dodd, and Null);
Rec. Doc. 93 (dismissing with prejudice all individual capacity claims as to
Norman, Byerly, and Spence). Those motions were ruled upon by Judge Porteous
prior to the case being transferred to this section. Judge Porteous concluded
that Plaintiff's right to a non-therapeutic abortion while incarcerated was not
clearly established under either the Fourteenth or Eighth Amendments thereby
entitling defendants to qualified immunity from any personal liability. This
Court is in complete agreement with Judge Porteous' ruling on the qualified
immunity issue. However, Judge Porteous did note that the fact that a right is
not clearly established for purposes of the qualified immunity analysis does
not preclude a finding that the conduct at issue was in fact unconstitutional.
Rec. Doc. 67, at 12 n.7; Rec. Doc. 93, at 9.
n16 Under Louisiana law the
Sheriff's Office itself is a non-entity incapable of being sued. Cozzo v. Tangipahoa Parish Council, 279 F.3d
273, 283 (5th Cir. 2002). However, the
Sheriff is an autonomous local government official separate and apart from the
parish he serves. See Burge v.
Parish of St. Tammany, 187 F.3d 452, 469 (5th Cir. 1999). Because Sheriff
Larpenter is sued in his official capacity, which is the equivalent of a suit
against the office he holds, Larpenter is not personally liable for any
judgment rendered against him in his official capacity but rather any such
judgment is to be recovered from the Sheriff's liability insurer or the public
funds controlled by Sheriff Larpenter.
Id. at 470.
n17 Two departments with
distinct areas of responsibility are involved in this suit. The Sheriff's
Office, for which Sheriff Larpenter has final decision-making authority, has
actual custody of the inmates and controls the operations of the TPCJC, where
parish inmates and detainees are housed. Exhibits Vol. III, at O. The Sheriff
is basically "the keeper of the jail." Rec. Doc. 131, Exhibit A, at
pp.27-28. Defendant Null, the TPCJC warden, is employed by Sheriff Larpenter.
The Sheriff does not receive funding from the parish for medical care of the
inmates and the Sheriff is not responsible for the medical care of inmates. See
La. R.S. 15:705.
Responsibility for inmate medical care comes under the purview
of the governing authority, the Parish (TPCG), for which defendants Byerly and
Spence work.
Dodd is an attorney in private practice who provides legal
counsel to the Sheriff and bills that entity on an hourly basis for legal
services rendered. His work for the Sheriff comprises about 40 percent of his
practice.
Dave Norman is the Parish Attorney. He performs no work for the
Sheriff's Office.
n18 The Court notes that
there is a disputed factual issue as to whether Plaintiff actually told her
attorney that she wanted an abortion. In disposing of a motion for summary
judgment the Court must of course construe the facts in the light most
favorable to the non-moving party. See
Terrebonne Parish School Board v. Columbia Gulf Trans. Co., 2002 WL 731075, at *3 (5th Cir. 2002)
(citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 8 L.
Ed. 2d 176 (1962); Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th
Cir. 1999)). Regardless of whether it was Plaintiff's failure to inform her
attorney of her desire for an abortion, or the attorney's failure or refusal to
apprise the Court notwithstanding a request by Plaintiff, the most direct or proximate
cause of Plaintiff's inability to receive an abortion under the court order
policy was that the district court was left in the dark as to the abortion
issue. Whether that circumstance is sufficient to defeat Plaintiff's claim is
discussed below.
n19 Rec. Doc. 170, at 12.
The individual defendants made numerous other arguments in conjunction with the
cross motions for summary judgment. However, most of those arguments focus on
the personal involvement of the various defendants, which while relevant to a
qualified immunity analysis, is not at issue here (except to the extent that it
would create a policy on behalf of the Sheriff's Office or TPCG) given that
only official capacity claims remain before the Court. Accordingly, those other
arguments need not be addressed as part of the disposition of the instant
motions.
n20 The Supreme Court had previously
excluded municipalities from liability under section 1983 in Monroe v. Pape,
365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d
492 (1961).
n21 A lawsuit against a
government official in his official capacity is the equivalent of an action
against the governmental entity he serves.
Ashe v. Corley, 992 F.2d 540, 541 n.1 (5th Cir. 1993) (citing Will v.
Michigan Dep't of State Police, 491 U.S. 58, 109 S. Ct. 2304, 105 L. Ed. 2d 45
(1989)). Therefore, a defendant found liable in his official capacity faces no
personal liability. Burge, 187 F.3d at 466-67. Rather, any judgment rendered
against the defendant in his official capacity is in effect a judgment against
the entity he serves. See id. And given that the qualified immunity defense is
unavailable to a governmental entity, a defendant sued only in his official
capacity likewise cannot avail himself of the defense. Id.
n22 The Court has little
trouble concluding that the court order policy at issue in this case
constitutes an official policy, at least with respect to the Sheriff's Office,
for section 1983 purposes. In his supplemental Responses to Request for
Production, Exhibits Vol. III, at N, p. 11, Sheriff Larpenter acknowledges that
"it is an unwritten policy that when an inmate requests elective surgery,
the inmate is advised to seek permission from the District Court, either pro se
or through counsel, by filing the appropriate documents to obtain an order
setting forth the parameters for the procedure, i.e., who will pay the guards,
if necessary, where the procedure will be performed, etc." Again, in his
affidavit, Larpenter states that all inmates "who desire to have an
elective medical procedure while incarcerated at the 'TPCJC,' must obtain a
court order authorizing his or her release before [Larpenter] can lawfully
release [the] inmate for this purpose." Exhibits Volume III, at O P 9.
However, the most convincing evidence of a policy is the August 19, 1999, Dodd
letter. Exhibits Volume I, at A. That letter, authored by Dodd as attorney for
Larpenter, explains the court order procedure in great detail and ends with a
statement that the letter is intended to "make our position clear insofar
as the Terrebonne Parish Sheriff's Office is concerned." Id. (emphasis
added). While the Court is unpersuaded that Dodd himself was a policy maker, he
clearly wrote the letter under the aegis of Sheriff Larpenter, who is
undisputedly the final policy maker on behalf of the Sheriff's Office.
n23 While Plaintiff has
consistently framed her argument in terms of the invalidity of imposing the
court order policy in the first place, what she argues in effect is that the Sheriff
and/or the TPCG via the medical staff had an affirmative duty to facilitate her
in procuring the abortion. Given that Plaintiff's whole suit is based upon her
contention that she had a constitutionally protected right to terminate the
pregnancy while incarcerated, even absent the court order policy, Plaintiff
would still have had to leave the prison and travel to New Orleans for the
abortion--and the only way for her to have done that is with the assistance of
the Sheriff and/or the medical staff.
n24 Plaintiff has not
attempted to argue that the undue burden test, unique to abortion-related regulations and applicable outside the prison
context, should be applied in this case.
n25 Plaintiff has tried to
argue that the policy required her to actually hire an attorney to get the
court order apparently because of the causation problem inherent under the
facts of this case. However, at oral argument Plaintiff's counsel conceded that
Plaintiff could have proceeded pro se to obtain the court order. Access to the
courts did not require Plaintiff to hire an attorney. As conceded by counsel at
oral argument, Plaintiff had previously acted pro se in conjunction with the
other criminal matters including the battery charge in this case.
n26 At oral argument,
Plaintiff's counsel clarified that Plaintiff did not seek a release from
custody in order to obtain the abortion, but rather transportation to an
appropriate facility while remaining in the Sheriff's custody. Indeed, given
that a judge had ordered Plaintiff incarcerated, and that state law only
permits the Sheriff to release a prisoner under very limited circumstances, see
La. R.S. 15:811(A), none of which apply in this case, Sheriff Larpenter had no
authority to release Plaintiff from custody so that she could obtain an
elective, non-therapeutic abortion.
n27 Rec. Doc. 170, at 12.
n28 The Court recognizes
that a court order would not likely absolve the sheriff of all liability should
his own negligence (or that of one of his employees), while having Plaintiff
outside the confines of the prison pursuant to the court order, cause damage.
Nevertheless, he is protected to the extent that he would avoid liability
premised upon the mere fact that Plaintiff was taken out the prison in the
first place-something he had no authority to do under state law.
n29 The Court recognizes
that the second Turner factor, i.e., whether an alternative means of exercising
the right remains open to the prisoner, is not met by the court policy. Because
the abortion procedure is "both time-bound and procedure-specific,"
Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326,
339 (3d Cir. 1987), there is no alternative to a timely abortion. However, the
Turner factors are just that-relevant factors to consider and are not required
to be unanimously met. See Turner,
482 U.S. at 89, 107 S. Ct. at 2262.
n30 Actually, Doe v. Barron,
92 F. Supp. 2d 694 (S.D. Ohio 1999), is one other such case. However, in Doe,
the district court simply adopted Monmouth without any analysis in the process
of granting plaintiff a temporary restraining order. All of the remaining few
cases addressing access to abortion in prison denied relief to plaintiff for
various reasons. See, e.g., Bryant
v. Maffucci, 923 F.2d 979 (2d Cir. 1991) (holding that mere negligence in
denying inmate access to an abortion does not state a claim for a
constitutional violation); Gibson v. Matthews, 926 F.2d 532 (6th Cir. 1991)
(finding prisoner's right to abortion not clearly established).
n31 The Monmouth policy was
different from the Terrebonne policy in that inmates were required to obtain a
court order for release on their own recognizance. Thus, maximum security
inmates were completely foreclosed from obtaining abortions in Monmouth.
n32 The Monmouth court's
treatment of the funding issue is somewhat confusing. In one part of the
opinion, the Third Circuit stated that the district court had erred in
concluding that no prison funds need be expended for the provision of elective,
nontherapeutic abortions. Monmouth, 834 F.2d at 341. Later in the opinion,
however, the appellate court stated that the county did not necessarily have an
affirmative obligation to appropriate funds for elective abortions-a seemingly
contradictory result. Id. at 343. The
Monmouth court also stated that the prison could not validly condition the
provision of medical services, including abortion, on the inmate's ability
and/or willingness to pay. Id. at 351.
n33 The Third Circuit expressly noted that the county had never
maintained that the policy was driven by security concerns. Monmouth, 834 F.2d at 337 n.15.
n34 Plaintiff has pointed
out that while the government owes no constitutional duty to its citizens to
provide medical care to those who can't afford it, such is not true while the
citizen is incarcerated. Plaintiff argues that the same holds true in the
context of abortion. Such an argument is unpersuasive, however, as Plaintiff
cites no authority holding that incarcerated citizens are entitled to freely
obtain non-medically necessary elective
procedures--an area where the Eighth Amendment does not operate. As
discussed below, this Court does not agree that the Eighth Amendment guarantee
against cruel and unusual punishment requires the prison to provide elective
abortions.
n35 The State of New Jersey
apparently had no state law like Louisiana's which prohibits any public funding
whatsoever for abortions. See La. R.S. 1299.34.5. Nevertheless, the Court
recognizes that such a distinction is of no moment because Louisiana law would
be preempted if the right to public funding of an abortion were a federal
constitutional right. However, it is not.
n36 Judge Porteous alluded
to this potential problem when he dismissed the individual capacity claims
against Defendants. Rec. Doc. 67, at 2 n.2.
n37 As noted above, it is a disputed
fact as to whether Plaintiff's lawyer was told about the abortion. Given that
this case is being decided in favor of Defendants on their motions for summary
judgment, the Court must construe the facts most favorably to Plaintiff and
therefore will assume that she did in fact tell her lawyer that she wanted an
abortion. Naturally, if Plaintiff had been the one to misinform her lawyer,
then her causation problem would be even greater. Regardless of what Plaintiff
told her lawyer, the court order did not issue in this case because the
district judge was left in the dark.
n38 See Exhibits Vol. III, at O, P 9; Id. at N, p.12.
Click Back Button to Return to Publication