Monthly Law Journal Article: Shackling of Pregnant Prisoners, 2009 (12) AELE Mo. L. J. 301.

     A female prisoner was in county custody for a nonviolent offense when she gave birth to her son. She sued after her release, claiming that her federal civil rights were violated by her being shackled and restrained during labor as well as during postpartum recovery. A federal appeals court vacated and remanded the trial court's grant of summary judgment for the county defendants on most of the plaintiff's shackling claims, finding that the question of whether the U.S. Constitution allows law enforcement officers to restrain a female inmate while she is pregnant, in labor, or during postpartum recovery was one of first impression. In this case, the answer to that question depended on factual disputes about whether the restraint policy was justified that a properly instructed jury had to resolve. The appeals court rejected equal protection claims as no evidence of discriminatory intent was shown. Mendiola-Martinez v. Arpaio, #14-15189, 836 F.3d 1239 (9th Cir. 2016).
      A female former inmate asserted privacy and other claims against New Jersey and correctional officials and employees, asserting that without proper authorization they took her from one place of confinement to another where they denied her clothing, sanitary napkins, and potable water, as well as needed medications, and subjected her to an unlawful body cavity search. They also allegedly required her to go to the shower or otherwise be exposed while naked while male employees and inmates were present. A federal appeals court found that she failed to adequately show that the state Attorney General or Commissioner of Corrections had adopted policies that led to the deprivation of her constitutional rights or that one named correctional officer knew of these violations. Claims against other, as yet unidentified, correctional employees with respect to these alleged violations, however, could continue. Chavarriaga v. NJ Dep't of Corrs., #14-2044, 2015 U.S. App. Lexis 19854 (3rd Cir.).
     Female inmates at an Oklahoma facility were given work assignments to perform landscaping work and grounds maintenance at the governor's mansion. They claimed that they were sexually assaulted and harassed by their off-site supervisor, the mansion's groundskeeper, and a cook at the mansion. Their lawsuit claimed that two guards at the prison were aware of this, but did nothing to prevent it. Upholding the denial of qualified immunity to the two guards, a federal appeals court dismissed one guard's appeal for want of jurisdiction as she only challenged the trial court's determination that the plaintiffs presented sufficient evidence to survive summary judgment. It rejected the second guard's argument that a prison guard who knows of, yet fails to reasonably respond to, a risk of harm created by another person can only be liable if the perpetrator is a subordinate. Castillo v. Day, #14-6050, 2015 U.S. App. Lexis 10509 (10th Cir.).
    A county was not entitled to summary judgment on male deputies' federal and state sex discrimination challenge to a policy barring them from supervising female inmates in jails. The county failed to show that there was no genuine issue of material fact as to whether it was entitled to a "bona fide occupational qualification" (BFOQ) defense to the sex discrimination claim. The BFOQ defense could not be established merely by deferring to the sheriff's judgment. There were also factual issues as to whether the sheriff arrived at the policy by engaging in a reasoned decision-making policy, as well as whether the policy legitimately furthered important underlying interests, such as protecting the safety of female inmates. Ambat v. City & Cnty. of San Francisco, #11-16746, 2014 U.S. App. Lexis 12512 (9th Cir.).
     Female immigration detainees, who were ordered released after presenting a prima facie case for asylum, claimed that they were each sexually assaulted by a male employee of a private prison company while he was transporting them from an immigration detention center where they had been interviewed to a bus station or airport, with no other officers present. He pled guilty to federal and state charges stemming from the assaults. While two defendant federal officials knew of a contractual requirement that such transported immigration detainees be escorted by at least one officer of the same gender, and that the aim of this was to deter such assaults, their alleged failure to take action to enforce that condition did not violate a clearly established constitutional right. Doe v. Robertson, #13-50459, 2014 U.S. App. Lexis 8534 (5th Cir.).
     A pregnant woman was being held as an immigration detainee and classified as a medium-security inmate. She was restrained and shackled prior to giving birth and claimed that this violated her rights. A federal trial court granted her summary judgment on liability and a jury awarded her $200,000 in damages. A federal appeals court reversed, finding that summary judgment on liability had been improper. There were genuine material factual issues as to whether she had been shown to be a flight risk, as well as conflicting expert testimony about the alleged negative effects of shackling on pregnant inmates. It was also not established whether or not the officers involved in her restraint had any knowledge about a no restraint order. Villegas v. Metro. Gov't of Nashville & Davidson Cty., #11-6031, 2013 U.S. App. Lexis 4382, 2013 Fed. App. 59P (6th Cir.).
     The U.S. Justice Department released a letter of findings stating that its investigation determined that Topeka Correctional Facility (TCF), an all-female facility in Topeka, Kan., under the jurisdiction of the Kansas Department of Corrections (KDOC), failed to protect women prisoners from harm due to sexual abuse and misconduct from correctional staff and other prisoners in violation of their Eighth Amendment constitutional rights. The letter recommends a series of remedial actions, including changes in policy, staffing, correctional practices, training, investigations, grievances, and compliance with the provisions of the National Standards to Prevent, Detect, and Respond to Prison Rape, 28 C.F.R. Part 115. Letter of Findings, re: Investigation of the Topeka Correctional Facility, Civil Rights Division, U.S. Dept. of Justice (Sept. 6, 2012).
     A female prisoner suffering from cervical cancer had her ovary and lymph nodes removed during a radical hysterectomy, allegedly without her consent. A federal appeals court rejected her civil rights claim, however, finding no evidence of deliberate indifference to her serious medical needs. Her contention that the removals of the ovary and lymph nodes were not necessary because subsequent examination revealed that they were not cancerous was, at most, medical negligence or a mere disagreement with the medical treatment given, which was insufficient for a federal civil rights claim. Sama v. Hannigan, #10-40835, 2012 U.S. App. Lexis 2107 (5th Cir.).
     Because a county jail did not have the resources to adequately handle pregnancy-related medical emergencies, a pregnant minor stated a claim for deliberate indifference to her serious medical needs by alleging that personnel there failed to rush her to a hospital when she began having labor pains, and that she was not seen by a doctor until seven hours later. She was subsequently taken to a hospital, but then returned to the jail, where her baby was born, suffering various birth defects including severe mental retardation and cerebral palsy. Havard v. Wayne County, #09-1235, 2011 U.S. App. Lexis 17404 (Unpub. 6th Cir.).
    A woman arrested for a misdemeanor of hindering apprehension of her husband was strip searched at the county jail pursuant to a policy of strip searching all arrestees entering the facility for felonies, or for Class A or B misdemeanors. A federal appeals court, acting en banc, declined a county's request that it overrule its prior precedent requiring reasonable suspicion of possession of a weapon or contraband before a detainee is strip searched. The defendant county failed to object to jury instructions including the reasonable suspicion requirement, and the court could not say that these instructions constituted plain error. The court upheld a judgment for the plaintiff of $55,000 for mental anguish, $5,000 in punitive damages, $157,394.60 in attorneys' fees, and $37,153.95 in costs. Jimenez v. Wood County #09-40892, 2011 U.S. App. Lexis 20748 (5th Cir. en banc.).
     A jury awarded $500,000 to a female pretrial detainee against a county on her claim that a male sheriff's deputy raped her while she was in custody. The trial court erroneously set this award aside, a federal appeals court ruled, and stated that the mere fact that a county policy prohibited such sexual misconduct was an inadequate defense. "No County policy prohibited a single deputy of one sex from being alone with a prisoner of another sex. Nor were any monitoring devices, such as surveillance cameras, ever employed to supervise such one-on-one interactions." Cash v. County of Erie, #09-4371, 2011 U.S. App. Lexis 17163 (2nd Cir.)
     Present and former female inmates of New York state prisons could pursue class action claims for injunctive and declaratory relief, seeking protective measures against what they asserted was a pattern of sexual molestation by prison guards. The fact that some of them had been released did not make their claims moot, since they alleged misconduct which was capable of repetition, but which would evade review if the mootness doctrine was applied. Amador v. Andrews, #08-2079, 2011 U.S. App. Lexis 17440 (2nd Cir.)
     A prisoner claimed that her constitutional rights were violated when she was shackled to a bed while she was giving birth. A state corrections department director was entitled to qualified immunity from liability because he was not personally involved in the incident and had not established any policies to require or encourage the shackling of pregnant prisoners. A corrections officer directly involved in the shackling, however, was not entitled to qualified immunity, given that she stated that the prisoner, who was a non-violent offender, had not done or said anything to indicate that she was an escape risk or that she posed any other threat. There was evidence from which a fact finder could decide that the officer, in shackling the prisoner's ankles to opposite sides of a hospital bed during the final stages of labor, acted with deliberate indifference to her serious medical needs. She allegedly knew that the prisoner had severe pain, that the labor was risky, and that hospital personnel had requested that she be unshackled. The officer also allegedly failed to abide by administrative regulations requiring her to balance medical and security concerns in deciding whether to shackle the inmate. At the time of the incident, September of 2003, the prisoner's right to be free from unnecessary suffering was clearly established. Nelson v. Correctional Medical Services; #07-2481, 2009 U.S. App. Lexis 21730 (8th Cir.).
     Programs that provide services to inmate mothers in California did not engage in unlawful sex discrimination under state law by failing to provide the same services and programs to male prisoners who are parents. One of the programs is the Pregnant and Parenting Women’s Alternative Sentencing Program Act, that funds community based facilities for programs designed to reduce drug use and recidivism, and allows at least one eligible child to reside with the mother at the facility if the mother has a history of substance abuse, the child is under six, and the sentence is less than three years. The second program "provides for a community treatment program for women inmates sentenced to state prison who have one or more children under the age of six. An incarcerated mother is eligible for the program if she has a probable release or parole date with a maximum period of confinement not exceeding six years; she was the primary caretaker of the infant prior to incarceration; she has not been found to be an unfit parent; and she does not pose an unreasonable risk to the public due to the nature of her crime, the risk of absconding, or probable adverse conduct." Male prisoners who are parents, the court found, were not shown to be similarly situated to inmate mothers. "Most female inmates were convicted of drug or property crimes, often victims of abuse, and more likely to be single parents. [...] There were only a small percentage of male primary caretakers." The court noted that,: "Government data showed these women prisoners were likely to have been the primary or single caretaker of their young children, who were likely to be displaced to other relatives or foster care. By contrast, children of incarcerated men were likely to continue living with their mothers." Woods v. Shewry, No. C056072, 2008 Cal. App. Lexis 1588; 167 Cal. App. 4th 658; 84 Cal. Rptr. 3d 332 (3rd Dist. Cal. App.).
     Female juvenile adjudicated delinquent did not show that her federal constitutional or statutory rights were violated by the fact that a community corrections facility near her home did not accept females, resulting in her having to serve 11 months in a juvenile correctional facility and a drug rehabilitation center that were further away. Her constitutional rights were not violated because she was provided with opportunities comparable to those provided for male inmates. The decision made by her family members not to drive to the facility where she was incarcerated for attendance at family therapy sessions did not alter the fact that family therapy was offered. Additionally for purposes of federal civil rights statutes prohibiting sex discrimination in a governmental "program or activity," the "program or activity" at issue was the entire system of juvenile institutions operated by the State of Ohio, rather than a particular juvenile facility. Lothes v. Butler County Juvenile Rehabilitation Center, No. 06-3389, 2007 U.S. App. Lexis 16559 (6th Cir.).
     Co. jail facility for women was O.K. except for sanitation needs of females caused by overcrowding. Fischer v. Winter, 564 F.Supp. 281 (N.D. Cal. 1983).
     Female inmates win cause on prison conditions and get attorney fees. Glover v. Johnson, 531 F.Supp. 1036 (E.D. Mich. 1982).
     Kentucky correctional institution for women found in violation of equal protection clause by denying privileges and job opportunities to female inmates that male inmates in area prisons receive. Canterino v. Wilson, 546 F.Supp. 174 (W.D. Ky. 1982).
     State correctional officials cannot close women's prison without legislative act. DeVault v. Nicholson, 296 S.E.2d 682 (W. Va. 1982).
     California court upholds majority of policies at women's jail; orders due process rights to be accorded prior to administrative segregation; awards $105,760 in attorney's fees. Inmates of Sybil Brand Inst. v. City of Los Angeles, 181 Cal.Rptr. 599 (App. 1982).
     Louisiana court holds that prison personnel did not violate female inmate's constitutional rights by failing to provide her with medical care; rules that such failure did not cause woman to spontaneously abort child. Williams v. Delcambre, 413 So.2d 324 (La. App. 1982).
     Appeals court works out compromise between female inmates' right to privacy and male guards employment rights at New York prison. Forts v. Ward, 621 F.2d 1210 (2nd Cir. 1980).
     Under the California Constitution and the Equal Protection Clause of the Fourteenth Amendment, female inmates are entitled to the same jail assignment opportunities as male inmates. Molar v. Gates, 159 Cal.Rptr. 239 (App. 1979).