NELSON v. CORRECTIONAL MED. SERVS

MURPHY, Circuit Judge.

Shawanna Nelson brought this 42 U.S.C. § 1983 case asserting Eighth Amendment violations by Larry Norris, Director of the Arkansas Department of Correction (ADC), and ADC corrections officer Patricia Turensky. Nelson alleges that while giving birth to her child she was forced to go through the final stages of labor with both legs shackled to her hospital bed in violation of the Eighth Amendment. She alleges that Director Norris failed to ensure that appropriate policies for the treatment of pregnant inmates were implemented and that Officer Turensky, despite having witnessed her severe contractions and despite the expressed wish of medical personnel, failed to follow prison regulations requiring her to balance any security concern against the medical needs of the patient. Nelson asserts that a reasonable corrections officer would have known that she should not have been restrained by shackles while on the verge of giving birth and that she was in no condition to flee while her whole body was engaged in moving her baby to birth.

The district court denied the defendants' motions for summary judgment based on qualified immunity, and they appealed. After a panel of this court affirmed in part and reversed in part, we granted Nelson's petition for rehearing en banc and vacated the panel opinion. We now affirm the district court's denial of summary judgment to Officer Turensky but reverse with respect to Director Norris.

Since this appeal is from a motion for summary judgment, we state the facts in the light most favorable to the nonmoving party. Humann v. KEM Elec. Coop., Inc., 497 F.3d 810, 811 (8th Cir. 2007). Nelson was a twenty nine year old nonviolent offender who was six months pregnant with her second child when she arrived at the McPherson Unit of the ADC on June 3, 2003. She went into labor on September 20 and presented herself at the prison infirmary at 3:00 pm. Shortly thereafter Nelson began to cry out in pain, and by 3:25 pm her contractions were already only five to six minutes apart. The infirmary nurses determined that she must be immediately transported to a contracting civilian hospital to deliver her child. They requested a gate pass, a transport van, and an escort officer to get Nelson to the hospital.

Nelson was to be picked up in the sally port. To get there from the infirmary she had to be cleared through the central control gate and then walk down a long hallway nearly the length of a football field. Nurse Smith helped her leave the infirmary, and at the control gate the two met Officer Turensky, the assigned transportation officer. Turensky testified that after the group cleared the gate, she walked with Nelson the entire length of the hallway leading to the sally port.

Nurse Smith testified that Nelson had to stop twice on the way to the sally port because she was in so much pain "she couldn't walk" and had to lean against the wall for support. After the second or third time that Nelson's pain forced her to stop, Nurse Smith hollered to the sally port officers, "[a]s soon as I get [to the sally port], you better have the gate pass, because I want her out of here." Turensky wrote in her response to Nelson's prison grievance form that Lieutenant Williams had instructed her to "RUSH [Nelson] to the hospital [and] to NOT to [sic] take time for cuffs." (emphasis in the original). She nevertheless put handcuffs on Nelson as soon as they reached the sally port. Nurse Smith testified that before Nelson was able to get into the transport van, she "had one [contraction] . . . because I remember standing there and helping her breathe and then putting her in the van."

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

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

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

Nelson asserts that as a result of being shackled during her labor, she was unable to move her legs or stretch during "the most painful and stressful" part of it. She produced evidence that the shackling caused her extreme mental anguish and pain, permanent hip injury, torn stomach muscles, and an umbilical hernia requiring surgical repair. She has also alleged damage to her sciatic nerve. According to Nelson's orthopedist, the shackling injured and deformed her hips, preventing them from going "back into the place where they need to be." In the opinion of her neurosurgeon the injury to her hips may cause lifelong pain, and he therefore prescribed powerful pain medication for her. Nelson testified that as a result of her injuries she cannot engage in "ordinary activities" such as playing with her children or participating in athletics. She is unable to sleep or bear weight on her left side or to sit or stand for extended periods. Nelson has also been advised not to have any more children because of her injuries.

Turensky had been a correctional officer at McPherson for approximately six years at the time Nelson went into labor on September 20, 2003. During her prison orientation Turensky had received training on the laws and regulations governing hospital transports, and she had participated in at least forty hours of additional classroom training each year.

Several of the ADC regulations specifically applied to the shackling of prisoners. Administrative Regulation 403, for example, stated the ADC policy that shackles were to be used "only when circumstances require the protection of inmates, staff, or other individuals from potential harm or to deter the possibility of escape." Ark. Dep't of Corr. Admin. Reg. 403 § V (1992). Administrative Directive 95:21 required any officer responsible for transporting an inmate to a hospital to "use good judgment in balancing security concerns with the wishes of treatment staff and the medical needs of the inmate" before shackling an inmate during a hospital stay. Ark. Dep't of Corr. Admin. Dir. 95:21 § (IV)(B)(4)(c) (1995). If security concerns appeared to conflict with an inmate's medical needs, transportation officers were required to contact superiors "immediately" for guidance. Id.

Nelson brought § 1983 claims against Norris and Turensky, alleging violations of the Eighth Amendment and seeking compensatory and punitive damages. Nelson claimed that, (1) Turensky subjected her to cruel and unusual punishment by shackling her legs to a hospital bed while she was in the final stages of labor, and (2) Norris failed to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor. Norris and Turensky moved for summary judgment based on qualified immunity, arguing their actions did not violate any of Nelson's clearly established constitutional rights. After the district court examined the record, it concluded that a jury could find that a reasonable official "would have known that shackling [Nelson's] legs to a bed post while she was in labor, without regard to whether she posed a security or flight risk, violated her Eighth Amendment rights." It therefore denied Turensky and Norris's motion for qualified immunity. After a panel of this court reversed the district court, we granted Nelson's petition for rehearing en banc and vacated the panel opinion.

Qualified immunity may protect government officials from liability under 42 U.S.C. § 1983, but not if their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotation omitted). In addition to protection from liability, "[q]ualified immunity is an entitlement not to stand trial or face the other burdens of litigation." Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quotation omitted).

We review de novo the district court's denial of a motion for summary judgment on the basis of qualified immunity. Plemmons v. Roberts, 439 F.3d 818, 822 (8th Cir. 2006). In doing so we grant the nonmoving party "the benefit of all relevant inferences." Id. (quotation omitted). "[I]f there is a genuine dispute concerning predicate facts material to the qualified immunity issue, there can be no summary judgment." Tlamka v. Serrell, 244 F.3d 628, 632 (8th Cir. 2001) ( quoting Lambert v. City of Dumas, 187 F.3d 931, 935 (8th Cir. 1999)). At this stage we are prohibited from weighing evidence or making credibility determinations. Id. at 634.

In analyzing the officials' claim of qualified immunity we consider two questions: (1) "whether the facts that a plaintiff has alleged or shown," when viewed in the light most favorable to Nelson, support a finding that the conduct of Turensky or Norris violated a constitutional right, and (2) whether that constitutional right was "clearly established" in September 2003 such that a reasonable official would have known that his or her actions were unlawful. See Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 815-16, 172 L.Ed.2d 565 (2009) (citations omitted); see also Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Qualified immunity is appropriate only if no reasonable factfinder could answer yes to both of these questions. See Plemmons, 439 F.3d at 822.

Until recently, our analysis of qualified immunity was constrained by the two step sequence set forth in Saucier, which required us to ask first whether "the facts alleged show the officer's conduct violated a constitutional right." 533 U.S. at 201, 121 S.Ct. 2151. Under Saucier, only if the allegations and any evidence, when viewed in a light favorable to the nonmoving party, established a constitutional violation were we permitted to ask "whether the right was clearly established at the time of the deprivation. . . ." Id. at 201, 121 S.Ct. 2151. In Pearson, 129 S.Ct. at 818, the Supreme Court held that "while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory," and courts are "permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." We conclude that it is appropriate in this case to start with the question of whether the allegations and evidence, when considered in Nelson's favor, establish any constitutional violation.

The Eighth Amendment "prohibits the infliction of cruel and unusual punishments on those convicted of crimes." Wilson v. Seiter, 501 U.S. 294, 296-97, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quotation omitted). In order to make out an Eighth Amendment violation "the offending conduct must be wanton." Id. at 302, 111 S.Ct. 2321 (emphasis in the original). The word "wanton[] does not have a fixed meaning" and its meaning in the Eighth Amendment context depends upon the circumstances in which the alleged violation occurs. Id. In cases involving prison riots, for example, wantonness is demonstrated by acting "maliciously and sadistically for the very purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (quotation omitted). The Eighth Amendment standard for conditions of confinement and medical care such as those raised here is different, and the constitutional question in this case is whether Turensky acted with "deliberate indifference." See Wilson, 501 U.S. at 303, 111 S.Ct. 2321 (quotation omitted).

A prison official is deliberately indifferent if she "knows of and disregards" a serious medical need or a substantial risk to an inmate's health or safety. See Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). A claim of deliberate indifference has both an objective and a subjective component. See id. at 838-39, 114 S.Ct. 1970. Thus, the relevant questions here are: (1) whether Nelson had a serious medical need or whether a substantial risk to her health or safety existed, and (2) whether Officer Turensky had knowledge of such serious medical need or substantial risk to Nelson's health or safety but nevertheless disregarded it. See id. at 842, 114 S.Ct. 1970.

Nelson's expert, Dr. Cynthia Frazier, testified by affidavit "to a reasonable degree of medical certainty, that [shackling] is inherently dangerous to both the mother and the unborn fetus" and that it may interfere with the response required "to avoid potentially life-threatening emergencies for both the mother and the unborn fetus." A factfinder could determine from the record evidence that Turensky disregarded the risks to Nelson by shackling her while she was in the final stages of labor and by keeping her in shackles (except for intervening medical exams) until shortly before her baby was born.

To establish an Eighth Amendment violation Nelson need not show that Turensky actually believed that shackling her during labor would harm her, for "it is enough that the official acted or failed to act despite [her] knowledge of a substantial risk of serious harm." Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Whether or not Officer Turensky knew that shackling presented a substantial risk to Nelson "is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious." Id. (citation omitted). That Turensky lacked medical training, that the hospital staff did not explicitly forbid the use of shackles, or that Nelson did not expressly state how painful and uncomfortable they were, is thus inconclusive (although at trial it "remains open to the official[] to prove that [she was] unaware even of an obvious risk to [Nelson's] health or safety," id. at 844, 114 S.Ct. 1970).

A reasonable factfinder could determine that there is substantial evidence of Turensky's own general awareness of the risk of harm from shackling a woman in labor. During her deposition Turensky admitted that, "[i]f you've got a very old sickly woman who's had three or four strokes, of course you don't want to put shackles on that inmate. That is just common sense. I do the same thing with pregnant inmates. I would not shackle a pregnant inmate." (emphasis supplied). When asked what it is about shackling pregnant inmates that bothered her, Turensky responded, " It's not in policy — if it were in policy, I would have to tell them that there's something wrong with the policy. . . ." (emphasis supplied). Turensky also appeared troubled by the fact that "you just cannot examine anyone with shackles on. They're not very sanitary." (emphasis supplied). Finally, Turensky admitted that she " imagine[d] they hurt the ankles when you're lying in bed." (emphasis supplied).

Officer Turensky was also put on notice that her actions could interfere with required medical care and aggravate Nelson's already considerable pain and suffering. She had been present when Nelson was forced by powerful contractions to brace herself against the prison wall and when Nurse Smith shouted to officials in the sally port that Nelson had to be taken to the hospital as soon as possible. Turensky was instructed by a prison official to "RUSH" Nelson to the hospital and "to NOT to [sic] take time for cuffs." She was present at the sally port when Nelson required a nurse's assistance and in the maternity ward when Nelson requested an epidural. Turensky noted in her log that Nelson was feeling sick, and she was present while two nurses had to help Nelson push her baby along the birth canal. She was repeatedly required to remove Nelson's shackles so medical personnel could examine her. Turensky was informed by a nurse in the maternity ward that she wished that Nelson was not being restrained by shackles.

There is no contradictory evidence suggesting that Turensky's decisions to place the shackles on Nelson initially and to reshackle her after each medical examination were made in reliance on the judgment of medical personnel. No medical personnel ever requested that Nelson be shackled or requested their reapplication following an examination. Indeed, repeated requests to unshackle Nelson to permit medical examinations and at least one explicit expression of dissatisfaction with the shackling (nurse who "wished" Nelson might remain unshackled) are evidence of a medical judgment that Nelson should not have been shackled at all while in the final stages of labor. Moreover, there is nothing in the record to indicate that any medical personnel other than Dr. Hergenroeder believed they could demand that the shackles be set aside. On the contrary, the fact that Turensky continued to reshackle Nelson after one nurse expressed her wish that Nelson not be shackled could have reasonably led other medical personnel to believe that Turensky would not be influenced by their wishes.

From all this evidence a factfinder could draw the inference that Turensky recognized that the shackles interfered with Nelson's medical care, could be an obstacle in the event of a medical emergency, and caused unnecessary suffering at a time when Nelson would have likely been physically unable to flee because of the pain she was undergoing and the powerful contractions she was experiencing as her body worked to give birth. See Heidi Murkoff et al., What to Expect When You're Expecting 364-67 (3d ed. 2002) (pain, nausea, vomiting, exhaustion, oxygen deprivation, and inability to walk are incident to final stages of labor).

While "deliberate indifference to a prisoner's serious illness or injury can typically be established or disproved without the necessity of balancing competing institutional concerns for the safety of prison staff," Whitley, 475 U.S. at 320, 106 S.Ct. 1078, from the record evidence in Nelson's case there does not even appear to have been a competing penological interest in shackling her, see, e.g., Hope, 536 U.S. at 738, 122 S.Ct. 2508 ("Despite the clear lack of an emergency situation, the respondents knowingly subjected [petitioner] to a substantial risk of physical harm. . . ."). According to Turensky's own testimony, Nelson was not threatening or belligerent at any point. Turensky responded "[n]o" when asked whether Nelson "sa[id] or d[id] anything that made [her] think she was an escape risk." Nurse Smith testified that Nelson was "[e]xtremely quiet, very nice, never caused any problems. I never had any trouble with her." Moreover, according to Turensky's own notes, Nelson required the assistance of medical staff to push her unborn child along the birth canal, to complete the process of separation of mother and child that is birth. Turensky also recorded in her log that Nelson became ill during the course of labor.

A reasonable factfinder could determine from the record evidence that Nelson did not present a flight risk while under the supervision of Turensky, an experienced correctional officer who was equipped with a fire arm. Turensky's statement during discovery that she had "doubts" and was "a tad nervous" because Nelson "was talking about how she should not be considered an inmate because she was in the free world in a free-world hospital" does not compel a different conclusion. A factfinder viewing that statement in the light most favorable to Nelson, as it be must on summary judgment, Plemmons, 439 F.3d at 822, could very well interpret it as Nelson's expressed wish to be able to give birth in the normal manner without being shackled to the bed. Moreover, summary judgment is prohibited where there are contradictory facts relevant to the issue of qualified immunity. Tlamka, 244 F.3d at 632.

Having determined that there is sufficient evidence in the record to permit a reasonable factfinder to determine that Turensky's actions violated the Eighth Amendment, the question remains whether such a constitutional right was clearly established in September 2003. A constitutional 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 an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . ." Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quotation omitted). The Supreme Court "has made it clear that there need not be a case with `materially' or `fundamentally' similar facts in order for a reasonable person to know that his or her conduct would violate the constitution." Young v. Selk, 508 F.3d 868, 875 (8th Cir. 2007) ( quoting Hope, 536 U.S. at 741, 122 S.Ct. 2508). Instead, the unlawfulness must merely be apparent in light of preexisting law. Hope, 536 U.S. at 739, 122 S.Ct. 2508, and officials "can still be on notice that their conduct violates established law even in novel factual circumstances." Id. at 741, 122 S.Ct. 2508.

Notice of constitutionally impermissible conduct may be provided by the Constitution itself or the decisions of the United States Supreme Court and the lower federal courts. See Hope, 536 U.S. at 741-42, 122 S.Ct. 2508. "Prison regulations governing the conduct of correctional officers are also relevant in determining whether an inmate's right was clearly established." Treats v. Morgan, 308 F.3d 868, 875 (8th Cir. 2002). A review of these sources confirms that the constitutional right asserted by Nelson was clearly established in September 2003.

The Eighth Amendment prohibits "cruel and unusual punishments," U.S. Const. amend. VIII, and well before September 20, 2003 the Supreme Court and the lower federal courts had concluded that the Amendment forbids actions like those taken by Turensky in shackling Nelson. In 2002, the Supreme Court provided guidance to officials on the constitutional limits in restraining prisoners in a § 1983 action brought by an inmate alleging that his Eighth Amendment rights had been violated by officials responsible for handcuffing him to a prison hitching post. Hope, 536 U.S. at 733-35, 122 S.Ct. 2508. The Court determined that defendant prison officials had acted with deliberate indifference to the inmate's health and safety in violation of the Eighth Amendment by restraining him "[d]espite the clear lack of an emergency situation" in a manner "that created a risk of particular discomfort and humiliation." Id. at 737-38, 122 S.Ct. 2508. A reasonable factfinder could determine from the record in this case that Officer Turensky, like the Hope officials, was not facing an emergency situation but nevertheless "subjected [Nelson] to a substantial risk of physical harm, to the unnecessary pain caused by the [shackles] and the restricted position of confinement . . . [and] created a risk of particular discomfort and humiliation." See id. at 738, 122 S.Ct. 2508.

The general responsibilities of state officers with regard to an inmate's medical needs were also clearly established before September 2003. In 1976 the Supreme Court had decided Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), a leading case in the development of Eighth Amendment law. Estelle was a § 1983 action brought against prison officials for providing an inmate inadequate medical care. Id. at 98, 97 S.Ct. 285. The Court concluded that either interference with care or infliction of "unnecessary suffering" establishes deliberate indifference in medical care cases in violation of the Eighth Amendment. Id. at 103-05, 97 S.Ct. 285. Whether an official such as Turensky interfered with Nelson's medical care or inflicted unnecessary suffering on her is a question squarely raised by the evidence in the record before this court. See, e.g., Farmer, 511 U.S. at 842, 114 S.Ct. 1970 (official violates Eighth Amendment in condition of confinement cases where he "act[s] or fail[s] to act despite his knowledge of a substantial risk of serious harm"); Tlamka, 244 F.3d at 633 ( Eighth Amendment violated in medical care cases where official disregards "obvious" risk to inmate); Coleman v. Rahija, 114 F.3d 778, at 786 (8th Cir. 1997) (official violates pregnant inmate's Eighth Amendment rights when she fails to act in the face of an "obvious[]" risk of harm).

Moreover, the precise issue under consideration here was decided years ago by a federal district court in the District of Columbia. In 1994 that court held that "[w]hile a woman is in labor . . . shackling is inhumane" and violates her constitutional rights. Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994), modified in part on other grounds, 899 F.Supp. 659 (D.D.C. 1995). The court held defendant prison officials liable, explaining that a prison official who shackles a woman in labor acts with "deliberate indifference . . . since the risk of injury to women prisoners is obvious." Id. at 669. The court found it significant that one prison official had shackled a pregnant inmate even though he himself later stated "that he would not shackle a third trimester woman," from which the court concluded "that he recognize[d] the risk." Id. Turensky's similar admission could also be found to show that she applied the leg restraints on Nelson despite recognizing the risks involved in shackling her during labor. These constitutional holdings in Women Prisoners were never appealed and they remained in effect at the time Nelson went into labor. See Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 93 F.3d 910 (D.C. Cir. 1996).

Although an Eighth Amendment claimant need not identify a factually identical case to satisfy the "clearly established" requirement, see Hope, 536 U.S. at 739, 122 S.Ct. 2508 (quoting Anderson, 483 U.S. at 640, 107 S.Ct. 3034), it is beyond question here that a federal court had found constitutional violations on essentially the same facts some seven years earlier in a widely reported decision. The value of that precedent was supported by the government's decision not to contest these constitutional holdings in its appeal to the D.C. Circuit, and the circuit court expressed no concern about them in its review of the record. Women Prisoners, 93 F.3d at 918.

Nelson's protections from being shackled during labor had thus been clearly established by decisions of the Supreme Court and the lower federal courts before September 2003. The ADC administrative regulations in effect also reflected the constitutional protections recognized in these judicial decisions. Regulation 403, for example, prescribed restraints " only when circumstances require the protection of inmates, staff, or other individuals from potential harm or to deter the possibility of escape." Ark. Dep't of Corr. Admin. Reg. 403 § V (1992) (emphasis supplied). In addition, Administrative Directive 95:21 required a transportation officer taking an inmate to a hospital for a medical emergency such as childbirth to "use good judgment in balancing security concerns with the wishes of treatment staff and the medicine needs of the inmate." Ark. Dep't of Corr. Admin. Dir. 95:21 § IV(B)(4)(c) (1995) (emphasis supplied). If security concerns could conflict with an inmate's medical needs, transportation officers were required to seek guidance from their superiors. Id. Nothing in the ADC's regulation or directive suggested that officials were required to shackle pregnant inmates who were in the final stages of labor in a civilian hospital.

Since these rules were in effect when Turensky was hired, trained, and retrained and remained in effect when she accompanied Nelson to the hospital, her knowledge of them is presumed and they applied to her decisions and actions in September 2003. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) ("a reasonably competent public official should know the law governing his conduct"). In addition to this presumption of knowledge, the record indicates that Turensky had actual knowledge that any competing interests must be balanced. As she explained, "[i]f you've got a very sickly old woman who's had three or four strokes, of course you don't want to put shackles on that inmate. That is just common sense. I do the same thing with pregnant inmates."

The record suggests that a factfinder could determine that Turensky entirely disregarded her duty to balance these competing concerns. A fair reading of the record, including Turensky's testimony, establishes that Nelson did not present a flight risk or other security concern and that at least one medical professional considered the shackles to be an interference with her medical needs. Moreover, Turensky's own testimony indicates that she was aware that shackling a woman in labor was hazardous and contrary to medical needs. There is no evidence that she utilized any of this information to "balanc[e] security concerns with the wishes of treatment staff and the medicine needs of the inmate" as required by prison regulations. See Ark. Dep't of Corr. Admin. Dir. 95:21 § IV(B)(4)(c) (1995). Nor is there any evidence that she contacted her superiors for guidance. See id.

Existing constitutional protections, as developed by the Supreme Court and the lower federal courts and evidenced in ADC regulations, would have made it sufficiently clear to a reasonable officer in September 2003 that an inmate in the final stages of labor cannot be shackled absent clear evidence that she is a security or flight risk. Indeed, "[t]he obvious cruelty inherent in this practice should have provided [Turensky] with some notice that [her] alleged conduct violated [Nelson's] constitutional protection against cruel and unusual punishment. [Nelson] was treated in a way antithetical to human dignity . . . and under circumstances that were both degrading and dangerous." Hope, 536 U.S. at 745, 122 S.Ct. 2508. For these reasons, the district court did not err in concluding that the constitutional rights asserted by Nelson were clearly established at the time.

Our obligation at this stage of the case is not to resolve the ultimate issue of whether Shawanna Nelson can prevail on her § 1983 claims against Officer Turensky. Our task is only to examine the record before the district court to determine whether it erred in denying the officer qualified immunity under the relevant summary judgment standard. See Plemmons, 439 F.3d at 822. Since Nelson produced sufficient evidence to demonstrate that Officer Turensky violated her clearly established Eighth Amendment rights by shackling her during labor, "the basic concept underlying the Eighth Amendment [being] nothing less than the dignity of [wo]man," Hope, 536 U.S. at 738, 122 S.Ct. 2508 (quotation omitted), the judgment of the district court denying Officer Turensky qualified immunity is affirmed.

Nelson claims that Director Norris violated her Eighth Amendment rights by failing to ensure that proper policies and customs were implemented with respect to the restraint of female inmates in labor. In a § 1983 case an official "is only liable for his . . . own misconduct" and is not "accountable for the misdeeds of [his] agents" under a theory such as respondeat superior or supervisor liability. Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1948-49, 173 L.Ed.2d 868 (2009). Norris is thus liable only if he personally displayed deliberate indifference to the hazards and pain resulting from shackling an inmate such as Nelson during the final stages of labor. Farmer, 511 U.S. at 842, 114 S.Ct. 1970. Nelson does not contend, nor does the record reflect, that Norris had any personal involvement in Turensky's decision to keep Nelson restrained while she was in labor. Indeed, there is no evidence that Norris, who was responsible for managing a large state wide prison system, had any personal knowledge of Nelson or the medical care she was receiving.

On September 20, 2003, the ADC had in place regulations and directives relevant to inmates like Nelson (and on which corrections officers received annual training). For example, Administrative Regulation 403, which concerned the use of restraints, provided that shackles were to be used "only when circumstances required the protection of inmates, staff, or other individuals from potential harm or to deter the possibility of escape." Ark. Dep't of Corr. Admin. Reg. 403 § V (1992). Administrative Directive 95:21, which described the responsibilities of, and procedures to be used by, officers transporting inmates outside ADC facilities stipulated that "[t]ransportation officers are expected to use good judgment in balancing security concerns with the wishes of treatment staff and the medicine needs of the inmate." Ark. Dep't of Corr. Admin. Dir. 95:21 § (IV)(B)(4)(c) (1995). The directive further indicated that where security concerns and medical needs appeared to conflict transportation officers were required to contact superiors for guidance. Id. While the directive did not specifically address the use of restraints on pregnant inmates, it recognized that in certain situations "removal of restraints is essential to provide adequate assessment or treatment" to the inmate. Id. at § (IV)(B)(4)(a). The regulation suggests a similar attention to the well being of inmates.

Also in place on September 20, 2003, was the ADC Newport Complex Hospital Security Post Order. The post order, which became effective on August 1, 2003, contained instructions for officers providing security to inmates in a hospital setting. The post order required officers to be familiar with the ADC restraint policy, and provided the following additional instructions for the use of restraints on pregnant inmates: "Pregnant inmates in the final stages of labor will not be restrained while in the delivery room giving birth, or at any time the physician in charge determines that such application would be a health risk to the unborn child or the health of the inmate." Ark. Dep't of Corr. Hosp. Sec. Post Order § (III)(A)(3)(2003). The focus of Nelson's constitutional challenge, however, is on the period before she was taken to the delivery room where she was attended by Dr. Hergenroeder.

The regulations, directives, and orders in the record suggest administrative concern for the health and safety of pregnant inmates. Without further allegation or evidence of deliberate indifference, Nelson's Eighth Amendment claim against Norris must fail. We conclude therefore that the district court erred in denying summary judgment to Director Norris based upon qualified immunity.

For the foregoing reasons the judgment of the district court denying summary judgment based on qualified immunity to Officer Turensky is affirmed but its judgment denying summary judgment based on qualified immunity to Director Norris is reversed. The case is remanded to the district court for entry of judgment in favor of Director Norris and for trial of the Eighth Amendment issues raised by Shawanna Nelson against Officer Turensky.