Remlinger v. Leb. Cnty.

Full title: ATHENA REMLINGER, Plaintiff, v. LEBANON COUNTY, et al., Defendants.

Court: United States District Court, Middle District of Pennsylvania

Date published: Nov 4, 2022

Civil Action 1:18-cv-00984 (M.D. Pa. Nov. 4, 2022)

Opinion

Civil Action 1:18-cv-00984

11-04-2022

ATHENA REMLINGER, Plaintiff, v. LEBANON COUNTY, et al., Defendants.

JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

WILSON, JUDGE

REPORT AND RECOMMENDATION

JOSEPH F. SAPORITO, JR. UNITED STATES MAGISTRATE JUDGE

This is a prisoner civil rights action brought under 42 U.S.C. § 1983 for violation of the plaintiff's substantive due process rights under the Fourteenth Amendment of the United States Constitution. The plaintiff, Athena Remlinger, is represented by counsel. Remlinger was an inmate at Lebanon County Correctional Facility (“LCCF”) from April 2017 through January 2018, but she was not incarcerated when this action commenced.

This civil action arises out of events concerning Remlinger's high-risk pregnancy while incarcerated at LCCF. First, the plaintiff claims that the defendants endangered the health of Remlinger and her son by inducing labor approximately two weeks before her due date for non-medical reasons. Second, she claims that the defendants placed her in shackles during her pregnancy, during labor, and during her postpartum recovery. Third, she alleges that the defendants placed her in solitary confinement for extended periods while pregnant. In addition, the plaintiff has asserted a state-law claim of intentional infliction of emotional distress. For relief, the plaintiff seeks an award of compensatory and punitive damages from the defendants.

The parties have filed cross-motions for summary judgment. The plaintiff seeks partial summary judgment with respect to her shackling claims against defendants Gettle, Schwartz, and Hocker, her shackling-based municipal liability claims against the County, and her shackling-based supervisory liability claims against Warden Karnes. (Doc. 98.) The defendants, having sorted themselves into three separate groups, seek summary judgment with respect to all of the plaintiff's claims. (Doc. 91; Doc. 94; Doc. 102.) All four motions are fully briefed and ripe for decision. (Doc. 90; Doc. 93; Doc. 96; Doc. 97; Doc. 99; Doc. 100; Doc. 101; Doc. 103; Doc. 104; Doc. 110; Doc. 111; Doc. 112; Doc. 113; Doc. 114; Doc. 115; Doc. 116; Doc. 117; Doc. 118; Doc. 119; Doc. 122; Doc. 123; Doc. 124.)

I. Background

Remlinger was incarcerated at LCCF as a pretrial detainee from April 2017 through January 2018. She learned that she was pregnant shortly after she was received into custody at LCCF. Her pregnancy was deemed “high risk” for several reasons, including a prior gastric bypass and a history of heroin addiction necessitating the use of methadone.

Remlinger was housed in solitary confinement conditions on two separate occasions while pregnant. First, she was placed into segregation upon her arrival at LCCF because she was detoxing from heroin. After thirty days, Remlinger was moved to the general population. Later, in June 2017, Remlinger was placed into medical isolation, ostensibly due to concerns regarding her food intake and the nutritional health of both Remlinger and her unborn child. After several weeks, she was transferred back to general population after her medical providers indicated that she had gained the appropriate amount of weight and her nutritional health was back to normal.

On April 26, 2017, Remlinger experienced bleeding, and paramedics were called to LCCF to transport her to an outside hospital. One of the defendants, a correctional sergeant, shackled one of Remlinger's ankles to the stretcher before the paramedics and escorting non-party correctional officers transported Remlinger to the hospital.

On October 17, 2017, two of the defendant correctional officers transported Remlinger to an outside hospital for induction of labor. During transportation, Remlinger was not shackled. Initially, Remlinger was not shackled at the hospital either. Instead, she was guarded by the two correctional officers who had transported her there. After 60 to 90 minutes, however, one of the two correctional officers was called back to the prison due to short-staffing. The officer who stayed at the hospital with Remlinger was instructed by a supervising correctional sergeant to use shackles on Remlinger in the absence of a second correctional officer to assist in guarding the inmate.

Remlinger has testified that she remained shackled for the most part through her labor, until a physician requested that the shackles be removed because they were interfering with medical treatment. When medical providers had difficulty locating her baby's heartbeat, Remlinger was moved to an operating room, and medical staff performed an emergency cesarean section.

When Remlinger awoke from the anesthesia administered in connection with her emergency cesarean section, she found that she had already been shackled to the bed once again, and now she was handcuffed to it as well. Over the next few days of postpartum recovery, Remlinger has testified that she remained shackled almost constantly. Every eight hours, the guard supervising Remlinger was replaced by another guard. Several of those guards-but not all-are also defendants in this action. While some of the guards have testified that shackles were not used at all during their shifts, some of them have admitted to sporadic use of shackles during the postpartum period.

Following her release from jail, and represented by counsel, the plaintiff commenced this action by filing a four-count complaint asserting § 1983 substantive due process claims against Lebanon County, operator of LCCF, and several individual defendants who worked there. In Count I of the currently operative amended complaint, Remlinger seeks to hold the County and Warden Karnes liable for the decision to induce labor for non-medical reasons. In Count II, Remlinger seeks to hold the County, Warden Karnes, and eight individual correctional officers liable for shackling her during transport to a hospital for treatment of pregnancy-related medical distress, and later during labor and postpartum recovery. In Count III, Remlinger seeks to hold the County liable for her placement in solitary confinement for extended periods while pregnant.¹ In Count IV, Remlinger brings state-law intentional infliction of emotional distress claims against the individual defendants, arising out of her shackling during labor and postpartum recovery.²

1 As pleaded, Count III also sought to hold four individual defendants personally liable, but those claims were previously dismissed on qualified immunity grounds. (See Doc. 66; Doc. 67; see also Doc. 59.)

2 As pleaded, Count IV also sought to hold the individual defendants liable based on her April 2017 shackling during transport to the hospital and based on her placement in solitary confinement while pregnant, but those claims were previously dismissed on the merits. (See Doc. 66; Doc. 67; see also Doc. 59.)

II. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is “genuine” only if the evidence “is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences “should be drawn in the light most favorable to the non- moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion,” and demonstrating the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant makes such a showing, the non-movant must set forth specific facts, supported by the record, demonstrating that “the evidence presents a sufficient disagreement to require submission to the jury.” Anderson, 477 U.S. at 251-52.

In evaluating a motion for summary judgment, the Court must first determine if the moving party has made a prima facie showing that it is entitled to summary judgment. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331. Only once that prima facie showing has been made does the burden shift to the nonmoving party to demonstrate the existence of a genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Celotex, 477 U.S. at 331.

Both parties may cite to “particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers or other materials.” Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4). “Although evidence may be considered in a form which is inadmissible at trial, the content of the evidence must be capable of admission at trial.” Bender v. Norfolk S. Corp., 994 F.Supp.2d 593, 599 (M.D. Pa. 2014); see also Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary judgment, to consider evidence that is not admissible at trial).

“The rule is no different where there are cross-motions for summary judgment.” Lawrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir. 2008).

Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether

genuine issues of material fact exist.

Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). Thus, “when presented with cross motions for summary judgment, the Court must consider the motions separately, and view the evidence presented for each motion in the light most favorable to the nonmoving party.” Borrell v. Bloomsburg Univ., 63 F.Supp.3d. 418, 433 (M.D. Pa. 2014) (citation omitted). “[E]ach movant must demonstrate that no genuine issue of material fact exists; if both parties fail to carry their respective burdens, the court must deny [both] motions. Quarles v. Palakovich, 736 F.Supp.2d 941, 946 (M.D. Pa. 2010) (citing Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1023 (3d Cir. 2008)).

III. Material Facts

Remlinger was incarcerated at LCCF from April 7, 2017, until January 24, 2018. She had been committed to LCCF as a pretrial detainee in connection with various felony charges, including burglary and conspiracy to commit robbery involving the infliction of serious bodily injury.^[3] At the time of her admission to LCCF, Remlinger had been detained because she was unable to post bail, which had been set at $250,000.^{[4] [4]} On April 27, 2017, this bail amount was modified and reduced to $80,000, but Remlinger remained incarcerated because she was unable to post bail. Ultimately, on January 10, 2018, Remlinger pleaded guilty to a third-degree felony charge of conspiracy to commit robbery involving the taking of property with force. She was sentenced to time served plus probation, with the condition that she spend six months in a restricted drug rehabilitation program. On January 24, 2018, Remlinger was transferred to a jail in another county, where she was facing probation violation charges.

[3] See generally Commonwealth v. Remlinger, Docket No. CP-38-CR-0000847-2017 (Lebanon Cty. (Pa.) C.C.P.) (felony burglary, robbery, and related charges); Commonwealth v. Remlinger, Docket No. CP-38-CR-0000791-2017 (Lebanon Cty. (Pa.) C.C.P.) (misdemeanor theft charge); Commonwealth v. Remlinger, Docket No. CP-38-CR-0001139-2017 (Lebanon Cty. (Pa.) C.C.P.) (misdemeanor forgery and theft charges).

[4] Remlinger was also subject to $10,000 bail and $500 bail on the two other, separate sets of misdemeanor charges.

[4] See generally Act of July 2, 2010, 2010 Pa. Legis. Serv. Act 2010-45 (“Act 45”) (West) (amending Title 61, Prisons and Parole, to provide for state and county recording systems for application of restraints to pregnant prisoners and to provide substantive restrictions with respect to the use of restraints to pregnant prisoners) (codified at 61 Pa. Cons. Stat. Ann. §§ 1104, 1758, 5905). Act 45 provides that a correctional institution, with certain exceptions, “shall not apply restraints to a prisoner or detainee known to be pregnant during any stage of labor, any pregnancy-related medical distress, any period of delivery, any period of postpartum . . . or transport to a medical facility as a result of any of the preceding conditions or transport to a medical facility after the beginning of the second trimester or pregnancy.” 61 Pa. Cons. Stat. Ann. § 5905(b)(1). Act 45 provides an exception from this restriction for “reasonable restraint provided the correctional institution staff assigned to the prisoner or detainee makes an individualized determination that the prisoner or detainee presents a substantial risk of imminent flight or some other extraordinary medical or security circumstance dictates that the prisoner or detainee be restrained to ensure the safety and security of the prisoner or detainee, the staff of the correctional institution or medical facility, other prisoners or detainees or the public.” Id. § 5905(b)(2). If restraints are applied, Act 45 requires that they be applied in the least restrictive manner possible, and that they be immediately removed upon request of a doctor, nurse, or other health care professional. Id. § 5905(c). If restraints are applied to a pregnant prisoner, Act 45 requires the correctional staff to report the incident to the correctional institution, and the correctional institution is required to report the incident to the state. Id. § 1758(a); id. § 5905(b)(2).

On or about April 8, 2017,^[5] Remlinger first learned that she was pregnant after taking a pregnancy test provided by LCCF medical staff. At the time, Remlinger did not know how far along she was in the pregnancy. In this situation, Remlinger's pregnancy was deemed a “high risk” pregnancy due to a prior gastric bypass surgery, a history of heroin addiction and abuse, and her current, medically prescribed use of methadone.

[5] Remlinger testified that she learned of the positive pregnancy test result on Saturday, April 8, 2017. (Remlinger Dep. 84-85, 90, Doc. 90-1, Doc. 95-3, Doc. 101-1, Doc. 104-1.) On a sick call request form dated April 7, 2017, she appears to have indicated that she was two months pregnant. (Doc. 90-3 (sealed).) The specific date is immaterial, so we have used the date to which she testified at her deposition.

Upon her arrival at LCCF, Remlinger had self-reported that she was suffering from withdrawal. Prison medical treatment notes from that date document that, in addition to being pregnant, Remlinger was ill and exhibiting symptoms of heroin withdrawal at the time. Thus, she was initially placed in segregated housing at LCCF from the date of her arrival. It was the prison's practice to place inmates detoxing from heroin in segregated housing instead of general population. After she finished detoxing, Remlinger was transferred to general population. Throughout her period of incarceration, Remlinger was transported to a methadone clinic every morning to receive treatment for her addiction disorder, and to an outside hospital for ultrasound imaging every other week, all without the use of shackles or other restraints.

At the time in question, LCCF maintained a policy on the use of restraints, including shackles, on pregnant inmates. The policy, promulgated by defendant Robert J. Karnes, the prison's warden, on August 17, 2010, provided in relevant part that:

This policy will address the guidelines in which to utilize or not utilize restraints of any fashion exclusively for identified pregnant inmates in the custody of the Lebanon County Correctional Facility. Procedure will be in compliance with and subject to the conditions outlined in Title 61 Act 45, effective September 2, 2010. This policy will supersede all previous

restraining policy referencing pregnant inmates. (Doc. 90-20; Doc. 95-9; Doc. 101-7.) The policy included definitions for the terms “detainee,” “labor,” “postpartum,” “inmate,” and “restraint” that were substantially identical to those set forth in Act 45.^[7] Compare id. with 61 Pa. Cons. Stat. Ann. § 5905(e). Following the use of restraints on a pregnant prisoner, the policy required correctional staff to provide “notification”-a written report-describing

the rationale to support the individualized determination that the prisoner or detainee presents a substantial risk of imminent flight or some other extraordinary medical or security circumstance which dictates the prisoner or detainee be restrained to ensure the safety and security of the prisoner or detainee, the staff of the correctional institution or medical facility, other prisoners or detainees or the public.

(Doc. 90-20; Doc. 95-9; Doc. 101-7.) Such written notification was expressly required if restraints were applied:

1. During any stage of labor.

2. During any pregnancy related medical distress.

3. During any period of delivery.

4. During any period of postpartum.

5. During any period after the beginning of the second trimester.

6. During any transport associated with the previous (1 thru 5).

(Id.) Notification was expressly not required if restraints were applied:

1. During the first trimester of pregnancy absent any medically related distress directly pertaining to the pregnancy. (ie: labor, delivery, bleeding, etc…)

2. The period during incarceration by where a pregnancy hasn't been confirmed by the LCCF medical department or designated medical provider.

(Id.) With respect to transportation of a pregnant prisoner, the policy provided:

All pregnant inmates that have pas[sed] the beginning of the second trimester will be escorted “unrestrained” to a secured transport vehicle with no less than two (2) correctional officers when there has been deemed a need for transport from LCCF. Those identified inmates will be escorted through the front lobby of the institution and not via the intake stairs. Two officers will accompany all types of transports involving pregnant inmates unless authorized otherwise.

(Id.) Finally, the policy provided:

If security intelligence has been presented of a credible nature, justifying a possible escape attempt or

behavior that may bring harm to the inmate, unborn child or public, the On-Call Warden or designee will make the determination if restraints are warranted based on the criteria of Act 45. If restraints are applied a written justification report must be forwarded to the Warden within 24 hrs.

. . . .

Medical emergencies of any nature involving pregnant inmates must always be transported by ambulance, trained first responders and required security. The on-call Warden and Nurse or Supervisor should be immediately notified of all emergencies.

(Id.)

[7] The LCCF policy used the term “inmate” and Act 45 used the term “prisoner,” but the definitions were otherwise identical. Indeed, Warden Karnes testified at his deposition that the LCCF policy was intended to mirror the language of the statute. (Karnes Dep. 79-80.)

At his deposition, Warden Karnes explained that LCCF staff typically would not use restraints on pregnant inmates once they became aware of the pregnancy, but he noted that there could be mitigating factors that might otherwise justify the use of restraints. Warden Karnes explained that the use of restraints on pregnant inmates was decided on a case-by-case basis, and factors that might justify the use of restraints included, for example: whether the pregnant inmate was a “high risk” inmate who presented safety risks to staff or others, an inmate with potential escape risk, an inmate with a history of misconducts, or a situation with a lack of adequate security present. Warden Karnes testified that an inmate with a high bail amount of $50,000 or more facing serious charges of violence might be considered high risk or an escape risk. Nevertheless, Warden Karnes explained that shackles should never be used on a pregnant inmate while she was walking.

On April 26, 2017, Remlinger experienced bleeding, and paramedics were called to LCCF to transport her to an outside hospital. At the time, Remlinger thought she was passing blood clots. Defendant Van Dusen, a correctional corporal and supervisor on duty at the time, shackled one of Remlinger's ankles to the stretcher before she left the prison. He instructed the transporting correctional officers that Remlinger was a “high-risk inmate.” At his deposition, Van Dusen testified that he had decided to shackle Remlinger because she was a high-risk inmate, based on her bail amount-$250,000 at the time-and on the violent nature of the charges against her. Van Dusen was aware of this information because he was able to review it on LCCF's computer system. Van Dusen testified that he was not aware that Remlinger was pregnant at the time, or that the medical condition for which she was being transported was pregnancy-related. (Van Dusen Dep. 20-21, 31- 32, Doc. 95-8.) Van Dusen testified that he did not review Remlinger's medical records prior to transport, and that such materials typically are not reviewed in making transport decisions. (Id. at 29.) Contemporaneous control logbooks and notes indicated only that Remlinger was sent out to the hospital due to blood clotting, with no mention that she was pregnant or that her medical condition was pregnancy-related. (Doc. 95-11; Doc. 95-12.) Van Dusen further testified that, if he had known that Remlinger was pregnant, he probably would not have shackled her. (Van Dusen Dep. 21-22.)

At her own deposition, Remlinger testified that, although she did not tell Van Dusen that she was pregnant, the medical staff knew that she was pregnant, and she personally heard one of the nurses tell Van Dusen that she was pregnant. (Remlinger Dep. 94, Doc. 90-1, Doc. 95-3, Doc. 101-1, Doc. 104-1.) Remlinger also testified that she underwent an ultrasound later that day, which revealed that she was in the thirteenth week of her pregnancy at the time, placing her in the second trimester of her pregnancy.^[8](Id. at 91, 95.)

[8] Although hospital records from this date are not present in the record on summary judgment, they were reviewed by the parties' expert witnesses, and the defense expert, Dr. Debbs, noted in his report that Remlinger's pregnancy was documented on this date with a gestational age of 13 weeks and 6 days, which is consistent with Remlinger's deposition testimony. (Debbs Expert Report 4, Doc. 90-17, Doc. 95-38, Doc. 104-3.) We take judicial notice that, at thirteen weeks of gestation, Remlinger was in the second trimester of her pregnancy at this time. See generally Stenberg v. Carhart, 530 U.S. 914, 923-24 (2000); Whole Woman's Health v. Paxton, 10 F.45h 430, 472 n.1 (5th Cir. 2021) (Dennis, J., dissenting) (“The gestational age of a fetus is measured by the time elapsed since the woman's last menstrual period. Pregnancy is commonly separated into three trimesters. The first trimester runs from the first through twelfth week and the second trimester runs from the thirteenth through twenty-sixth week. The third trimester begins [with] the twenty-seventh week and continues through the end of the pregnancy.”) (citation omitted) (citing Stenberg, 530 U.S. at 923-25), abrogated by Dobbs v. Jackson Women's Health Org., 142 S.Ct. 2228 (2022). While questioning Remlinger at her deposition, opposing counsel characterized thirteen weeks as being within the first trimester, and Remlinger agreed with the characterization. Neither counsel nor witness, however, is a medical professional, and no additional questions were posed to further develop this factual area. As described above, the prison's policy for use of restraints with respect to pregnant inmates was partly predicated on whether the inmate had reached the second trimester of her pregnancy. Thus, while not dispositive of her § 1983 substantive due process claims, we find the appropriate characterization of her pregnancy as being in the second trimester at the time to be material.

On June 16, 2017, Remlinger was transferred from general population to medical isolation, a form of segregated housing or solitary confinement at LCCF that, pursuant to prison policy, was used when an inmate requires close medical observation that cannot be accommodated in the general population setting. In the weeks leading up to Remlinger's transfer to medical isolation, her medical providers became concerned over her weight loss and the nutritional health of Remlinger and her unborn child. At deposition, a defendant correctional officer, Amber Schwartz,^[9] testified that she had personally observed Remlinger sticking her fingers down her throat to induce vomiting after eating, and that she had personally observed Remlinger giving away her food to other inmates. (Schwartz Dep. 22-23, 40, 44-45, Doc. 90-10, Doc. 95-16, Doc. 101-5, Doc. 104-5.) Schwartz testified that she admonished Remlinger not to give away the food provided to her, and that she reported Remlinger's conduct to the medical department. (Id.) On June 9, 2017, a member of the LCCF medical staff directed that, going forward, Remlinger would be eating all of her meals in the visitation room, where her intake could be more closely observed. After this change, correctional officers recorded log notes indicating that she was still not eating her meals in the visitation room, taking the trays back to her cell instead, but they were unable to thereafter locate the food trays in Remlinger's cell, leading them to conclude that she was either giving away or throwing away the food she was provided. Thus, on June 16, 2017, prison medical staff reportedly decided to place Remlinger in medical isolation so her intake could be more closely monitored, and so she could not give away her food to other inmates.

[9] At times, the parties' summary judgment papers refer to Schwartz by her current surname, Mayberry, which was her surname prior to her marriage and divorce. For the sake of consistency with the pleadings and case caption, we have referred to her in this report by her surname at the time when this action commenced, Schwartz. (See Doc. 96, at 14 n.10.).

During an outside hospital visit on July 27, 2017, Remlinger's medical providers wrote a note to LCCF medical staff, advising that she could be removed from medical isolation because she had gained an appropriate amount of weight, and her nutritional health was back to normal. Remlinger was transferred from medical isolation back to general population the next day.

On October 17, 2017, Remlinger was transported to an outside hospital to have labor induced. The defendants assert that the decision to induce labor was the sole or primary decision of Remlinger's medical providers at Hershey Medical Center. The plaintiff disputes this, asserting that prison officials made the decision to induce labor for non-medical reasons. At deposition, Warden Karnes testified that he had no involvement whatsoever in the decision to induce Remlinger's labor. (Karnes Dep. 94, Doc. 90-6, Doc. 95-10, Doc. 104-8.) The summary judgment record includes late-term medical treatment notes that included a treatment plan by Remlinger's medical providers for the scheduled induction of labor on October 17, 2017. These treatment notes stated that induced labor was indicated by Remlinger's methadone use, incarceration, history of two vaginal deliveries at 40 and 39 weeks, and arrangements for her mother-in-law to care for the baby postpartum, and this treatment plan was approved by a certified registered nurse practitioner and two medical doctors with the Hershey Medical Center division of maternal-fetal medicine. (MFM Outpatient Note (Sept. 26, 2017), Doc. 90-19, at 2-8; MFM Outpatient Note (Oct. 11, 2017), Doc. 90-19, at 9.) In contraposition, Remlinger cites the transcript of her own deposition, at which she testified that her medical providers never spoke with her about the plan to induce labor. (Remlinger Dep. 96.) In her brief in opposition-but not in her answer to the statement of material facts- Remlinger cites another passage in her deposition in which she testified that she learned that she was being induced from her public defender late in the evening of October 16, 2017, and that a correctional officer told her it was happening “per the warden” when Remlinger objected to being induced during transport to the hospital on the morning of October 17, 2017. (Remlinger Dep. 43-45.)

When Remlinger was transported to the hospital, she was accompanied by defendant Schwartz and another defendant correctional officer, Cheyenne Gettle. The supervisor on duty at the time, defendant Scott Hocker, a correctional sergeant, assigned Gettle and Schwartz to transport Remlinger to the hospital. Two correctional officers were required to transport Remlinger due to her “high risk” status, including her high bail amount and the serious charges against her. Remlinger was not shackled or otherwise restrained during transport.

When they arrived at the hospital, Gettle, who was unarmed, went into the hospital room with Remlinger while Schwartz, who was armed, waited outside and watched the hallway. Remlinger was admitted to the hospital around or before 8:35 a.m. About one or one-and-a-half hours later, Schwartz was called back to LCCF by Sergeant Hocker due to short-staffing.^[10] This left Remlinger with only one unarmed correctional officer to supervise her.

[10] Sergeant Hocker testified at his deposition that it was a non-party prison official, Deputy Warden Clements, who made the decision to recall Schwartz to the prison, and that Clements authorized Hocker to instruct Gettle to shackle Remlinger until either a doctor requested it be removed or labor started. (Hocker Dep. 42, Doc. 90-21, Doc. 95-13, Doc. 101-3.) Deputy Warden Clements, for his part, testified at deposition that he didn't recall speaking with Hocker about shackling Remlinger. (Clements Dep. 33, 54, Doc. 95-21.)

When Schwartz left, Gettle received instructions from Sergeant Hocker regarding the shackling of Remlinger. At his deposition, Hocker testified that he instructed Gettle to shackle Remlinger's leg to the bed, but to remove the shackles once Remlinger went into labor^[11]or if a doctor requested that it be removed. (Hocker Dep. 40, Doc. 90-21, Doc. 95-13, Doc. 101-3.) Hocker testified that he didn't remember any other instructions he might have given, but he was supervisor only for that particular shift-8:00 a.m. to 4:00 p.m. (Id. at 43.)

[11] When asked by examining counsel, Hocker testified that his understanding at the time was that Remlinger's labor would begin when she received medication to induce labor. (Hocker Dep. 40-41.) It is not clear from his deposition transcript whether he recalled communicating this particular information to Gettle as well. In her deposition testimony, Gettle did not expressly recall any instructions concerning the removal of shackles once labor began; she testified that the only instruction she received was to remove the shackles when Remlinger was moving around or receiving medical treatment. See infra. This particular conflict between Hocker's and Gettle's deposition testimony is immaterial in any event, as courts have recognized that the shackling of pregnant inmates in the third trimester-not just during labor and delivery-may expose them to a substantial and unjustified risk of harm sufficient to support a deliberate indifference claim. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1255-56 (9th Cir. 2016); Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 572 (6th Cir. 2013); Nelson v. Corr. Med. Servs., 583 F.3d 522, 532-33 (8th Cir. 2009) (en banc); Women Prisoners of D.C. Dep't of Corrs. v. Dist. of Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994) (“[S]hackl[ing] pregnant women prisoners in the third trimester of pregnancy and immediately after delivery poses a risk so serious that it violates contemporary standards of decency.”), modified in part on other grounds, 899 F.Supp. 659 (D.D.C. 1995), vacated in part and remanded on other grounds, 93 F.3d 910 (D.C. Cir. 1996). Moreover, the summary judgment record includes a medical treatment note recorded at 10:28 a.m. suggesting that Remlinger may have already been in labor prior to receiving a dose of Pitocin: On examination, her cervix was found to be 3 centimeters dilated and 50% effaced. (H&P (Oct. 17, 2017), Doc. 90-18 (sealed).)

At her deposition, Gettle testified that Hocker told her to shackle one of Remlinger's legs to the bed except for when she was moving around or receiving medical treatment. (Gettle Dep. 40, 62-63, Doc. 95-22, Doc. 101-4, Doc. 104-4; see also Gettle Answer to Interrog. 4, 6, Doc. 95-22.) Gettle testified that this was the only instruction she received from Hocker regarding the shackling of Remlinger. (Gettle Dep. 67.) Gettle did not call for additional permission each time she removed or reapplied the shackles to Remlinger. (Id. at 63.)

Remlinger received her daily dose of methadone around 10:00 or 11:00 a.m. After receiving her methadone, Remlinger received a dose of Pitocin, a drug to induce labor. After receiving Pitocin, Remlinger requested to sit in a wooden rocking chair that had been furnished with the room. Gettle unshackled Remlinger from the bed and permitted her to walk to the rocking chair. Once seated there, Gettle shackled Remlinger to the rocking chair.^[12] After a period of time, Remlinger requested to move back to the bed. Gettle consulted with a nurse, and after the nurse approved the move, Gettle removed the shackles and permitted Remlinger to walk to the bed. Once there, Gettle reattached the shackles.

[12] Gettle has reported that she shackled only one of Remlinger's legs. (Gettle Memo 2 (Nov. 10, 2017), Doc. 90-24, Doc. 95-17.) Remlinger has testified that both legs were shackled to the chair. (Remlinger Dep. 56, 111-12.)

Although the defendants contend that Gettle removed the shackles anytime Remlinger needed to move around or use the bathroom, Remlinger testified that, during her labor, she attempted to use the bathroom only once, at which time Gettle removed the shackles to permit Remlinger to move from the bed to the bathroom, and Gettle reapplied it when Remlinger returned to the bed. (Remlinger Dep. 70.) Otherwise, Remlinger relied on a catheter to urinate throughout her hospital stay. (Id.) Remlinger also testified that, other than one move to the rocking chair and one attempt to use the bathroom, she stayed in her bed, shackled, and did not move around the room. (Id. at 70-71.)

Although the defendants contend that Gettle removed the shackles anytime Remlinger received medical treatment, Remlinger testified that Gettle removed them only when instructed to do so by medical staff. At some point after Remlinger had moved back to the bed, a nurse had difficulty locating the baby's heartbeat. When a physician came in to examine Remlinger, he had difficulty getting her legs far enough to perform an internal exam. The physician asked Gettle to remove the shackles, and Gettle removed the shackles from Remlinger's left leg, leaving her right leg shackled to a bedrail. The physician was able to perform an internal exam, and he determined that it was time to break Remlinger's water. When her water was broken, however, doctors found that she was hemorrhaging. The physician asked Gettle to remove the rest of the shackles, and she did so. Remlinger was then wheeled in her bed to an operating room where medical staff performed an emergency C-section. (Remlinger Dep. 59-61.)

Remlinger's son was born at 1:43 p.m. on October 17, 2021^[13] she awoke from anesthesia after her C-section, Remlinger found that she was already shackled to the bed.^[14]

[13] Remlinger testified that her baby was initially unresponsive at birth. (Remlinger Dep. 127.) Some of the defendants have disputed this fact. Hospital records documenting the delivery are not present in the record on summary judgment, but the defendants cite Dr. Debbs's detailed review of medical records documenting the delivery. (Debbs Expert Report 10 (“Baby Remlinger had a spontaneous cry and movement of all extremities was noted at the time of delivery. The delivery was noted to be ‘atraumatic and without complication'.”).) Although it might ultimately impact the computation of damages, whether the baby was unresponsive or not is not material to disposition of the motions currently before the court. As we have previously noted at the pleadings stage, actual injury is not a required element of a § 1983 deliberate indifference claim. See Cotts v. Osafo, 692 F.3d 564, 569 (7th Cir. 2012) (“Damages are not an element of liability in a deliberate indifference claim.”). (See Doc. 18, at 30-31 (citing Cotts), report and recommendation adopted by Doc. 21.)

[14] Gettle testified that she secured Remlinger to the bed by one leg only. (Gettle Dep. 46.) Remlinger, however, testified that, when she awoke from anesthesia after her C-section, she found that she was handcuffed to a bedrail as well as shackled to the bed by her legs, and she remained that way for her entire postpartum stay except for one occasion when her hands were uncuffed to permit her to hold her baby son, and another occasion when her catheter was removed to permit her to attempt to use the bathroom. (Remlinger Dep. 63-71.)

Gettle's shift ended at 4:00 p.m., and she left the hospital. She was relieved by defendant correctional officer Crystal Herr, who guarded Remlinger until her shift ended at midnight. Herr testified that Remlinger was not shackled when she started her shift. (Herr Dep. 23, Doc. 95-25.) Gettle, however, testified that Remlinger was shackled when Herr relieved her. (Gettle Dp. 45-46.) Remlinger herself testified that she remained shackled the entire time. (Remlinger Dep. 66-67.)

When Herr's shift ended at midnight, she was relieved by a non-party correctional officer, Diana Barcynski, who guarded Remlinger until her shift ended at 8:00 a.m. on October 18, 2017. Barcynski testified that Remlinger was not shackled at any time during her shift. (Barcynski Dep. 19, Doc. 95-27.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Barcynski's shift ended at 8:00 a.m. on October 18, 2017, she was relieved by defendant Gettle, who guarded Remlinger until her shift ended at 4:00 p.m. Gettle testified that she did not shackle Remlinger when she wanted to move about the room or when her legs or ankles were swelling, but Gettle shackled Remlinger at other times during her shift. (Gettle Dep. 47-48.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Gettle's shift ended at 4:00 p.m. on October 18, 2017, she was relieved again by Herr, who guarded Remlinger until her shift ended at midnight. Herr testified that Remlinger was not shackled during her shift. (Herr Dep. 23.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Herr's shift ended at midnight, she was relieved by a non- party correctional officer, Officer Bale, who guarded Remlinger until the end of his or her shift at 8:00 a.m. on October 19, 2017.

When Bale's shift ended at 8:00 a.m. on October 19, 2017, he or she was relieved by defendant Schwartz, who guarded Remlinger until the end of her shift at 4:00 p.m. Schwartz testified that Remlinger was shackled to the bed by one leg when she started her shift. (Schwartz Dep. 38.) Schwartz testified that, when Remlinger complained that the shackle was bothering her leg, Schwartz removed it and left it off for the majority of her shift, reapplying the shackles before shift change. (Id. at 38-39.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Schwartz's shift ended at 4:00 p.m. on October 19, 2017, she was relieved by defendant Herr, who guarded Remlinger until the end of her shift at midnight. Herr testified that Remlinger was not shackled during her shift. (Herr Dep. 23.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Herr's shift ended at midnight, she was relieved by defendant correctional officers, Michelle Williams and Kyle Fink, who guarded Remlinger until the end of their shift at 8:00 a.m. on October 20, 2017. Williams testified that Remlinger was not shackled at the start of their shift, nor at any time during the shift. (Williams Dep. 20-21, Doc. 95-30.) Fink testified that he could not recall whether Remlinger was shackled. (Fink Dep. 14-15, Doc. 95-31.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.) Remlinger also testified that she specifically recalled asking Williams if the shackles could be loosened, but Williams responded that the shackles were as loose as they could get. (Id. at 68.)

When Williams's and Fink's shift ended at 8:00 a.m. on October 20, 2017, they were relieved by a non-party correctional officer, Laura Evans, who guarded Remlinger until the end of her shift at 4:00 p.m. Evans testified that Remlinger was not shackled at the start or at any time during her shift. (Evans Dep. 14-15, Doc. 95-32.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Evans's shift ended at 4:00 p.m. on October 20, 2017, she was relieved by a non-party correctional officer, Officer Young, who guarded Remlinger until the end of his or her shift at midnight.

When Young's shift ended at midnight, he or she was relieved by a non-party correctional officer, Barbara Cikovic, who guarded Remlinger until the end of her shift at 8:00 a.m. on October 21, 2017. Cikovic testified that Remlinger was shackled to the bedrail by one ankle when she started her shift. (Cikovic Dep. 14, Doc. 95-34, Doc. 101-6.) Cikovic testified that she removed the shackles several times during her shift to permit Remlinger to use the bathroom. (Id. at 15-16.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Cikovic's shift ended at 8:00 a.m. on October 21, 2017, she was relieved by a non-party correctional officer, Valerie Anderson, who guarded Remlinger until the end of her shift at 4:00 p.m. Anderson testified that Remlinger was in the bathroom when she came on shift, and therefore unshackled. (Anderson Dep. 14, Doc. 95-35.) Anderson testified that she did not shackle Remlinger when she returned from the bathroom or at any time during her shift. (Id. at 14-15.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Anderson's shift ended at 4:00 p.m. on October 21, 2017, she was relieved by Officer Young, who guarded Remlinger until the end of his or her shift at midnight.

When Young's shift ended at midnight, he or she was relieved by defendant Williams, who guarded Remlinger until the end of her shift at 8:00 a.m. on October 22, 2017. Williams testified that Remlinger was not shackled at any time during her shift. (Williams Dep. 21-22.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

When Williams's shift ended at 8:00 a.m. on October 22, 2017, she was relieved by defendant Gettle, who guarded Remlinger until her discharge and return to LCCF that afternoon. Gettle testified that she did not shackle Remlinger when she wanted to move about the room or when her legs or ankle were swelling, but Gettle shackled Remlinger at other times during her shift. (Gettle Dep. 47-48.) Remlinger, however, testified that she remained shackled throughout her postpartum recovery. (Remlinger Dep. 67-71.)

At his deposition, Warden Karnes testified that he only learned about the plaintiff's shackling several weeks later, when Remlinger submitted a grievance and the issue was brought up by a prison society representative during a county prison board meeting.^[15] Karnes testified that he then requested that a deputy warden direct the shift commander, Sergeant Hocker, to have a report prepared. On November 9, 2017, Hocker instructed Gettle to prepare a written report on the incident. On November 10, 2017, Gettle prepared a written memorandum detailing her use of shackles on Remlinger. (See Gettle Memo (Nov. 10, 2017), Doc. 90-24, Doc. 95-17.)

[15] Karnes also testified that, while Remlinger was incarcerated at LCCF, he had no involvement at all in her housing assignments, her medical care, the decision to induce labor, or the decision to use restraints on her when Remlinger went to an outside hospital for labor, delivery, and postpartum care. (Karnes Dep. 51-52, 74, 94.)

On December 24, 2017, Remlinger filed a written inmate grievance. (Grievance No. 2018-3 (Dec. 24, 2017), Doc. 95-19, Doc. 104-9.) The grievance was denied on or about January 19, 2018. (Id.)

After her release from incarceration, the plaintiff, appearing through counsel, commenced this action by filing her original complaint on May 9, 2018. (Doc. 1.) During the exchange of discovery in this action, the plaintiff and the County Defendants disclosed expert witness reports pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure.

The County Defendants served a May 4, 2021, expert report authored by Robert H. Debbs, DO, a physician specializing in obstetrics and gynecology, who is expected to offer expert opinion testimony in the area of maternal fetal medicine. (Debbs Expert Report, Doc. 90-17, Doc. 95-38, Doc. 104-3.) Based on his review of Remlinger's medical records, her prison records, transcripts of depositions taken in this case, and copies of pleadings, motion papers, and discovery responses served in this case, Dr. Debbs recounted the course of Remlinger's medical treatment in great detail and ultimately opined that:

The standard of care for any high-risk pregnancy, is to offer the option of induction of labor after 39 weeks gestation^[16] to reduce the risk of complications including in her situation preeclampsia, fetal death, acute withdrawal, unattended birth, and birth under uncontrolled circumstances. It is clear from the medical records that induction of labor was recommended and planned by the obstetrical staff of [Hershey Medical Center] division of [maternal fetal medicine] as relayed in multiple visits and memorialized in the request for induction of labor date through health system scheduling forms. Because of the restrictions on disclosing appointments to inmates, the plans and dates for appointments and induction of labor were not disclosed to Ms. Remlinger by medical staff.

It is, however, standard to induce women with her set of circumstances at the gestational age that was well documented to be 39 weeks and 3 days gestation. Inducing labor at this gestational age [is] reliabl[y] calculated to reduce the risk of both fetal and maternal harm from adverse outcomes, which include stillbirth, hemorrhage, NICU stay, preeclampsia, and hypoxic brain injury to her unborn fetus. . . .

. . . .

I am unable to identify any evidence of harm from any restraint that may have been placed during the induction process or in the postpartum period. . . .

Ms. Remlinger underwent a STAT emergency cesarean section as fast as any that is performed in the United States. . . . There was no delay for any reason from the diagnosis of fetal bradycardia to the incision to remove baby Remlinger from a hostile environment. Baby Remlinger was not hypoxic or asphyxiated at birth. Baby Remlinger had normal APGAR scores, a pH > 7.0, base excess < 12 and a normal partial pressure of oxygen on room air at birth. [Baby] Remlinger is not diagnosed with any neurologic disease that can be attributable to the birth process. I have no medical confirmation of any outcome or diagnosis of [Baby Remlinger] that can be attributed to the birth process. Baby Remlinger was discharged at the usual time in good condition.

. . . .

It is my opinion after reviewing all records received in this case, as well as testimony from LCCF staff and Ms. Remlinger, that the induction of labor was recommended by medical staff and not LCCF staff and that the induction was medically indicated and well within all standards of care. I opine that nothing LCCF

staff or medical staff did or did not do increased the risk of harm to Ms. Remlinger or [Baby Remlinger.] I am unable to find any evidence that any restraint, shackle or other LCCF intervention impacted medical events or outcome in this case.

(Debbs Expert Report 14-17.)

[16] In his review of her medical treatment history, Dr. Debbs referenced treatment records by medical providers noting that Remlinger had been scheduled for induction of labor on October 17, 2017, at which time her pregnancy would be at a gestational age of 39 weeks and 3 days. (Debbs Expert Report 7.)

The plaintiff served an undated expert report jointly authored by Deborah Ottenheimer, MD, and Whitney Lieb, MD, physicians specializing in obstetrics and gynecology, who are expected to offer expert opinion testimony in the area of maternal fetal medicine. (Ottenheimer & Lieb Expert Report, Doc. 95-39, Doc. 101-9.) Based on their review of Remlinger's medical records, transcripts of certain depositions taken in this case, and the defense expert report authored by Dr. Debbs, Drs. Ottenheimer and Lieb found that Remlinger was shackled during labor and delivery^[17]and placed in solitary confinement (medical isolation) for several weeks of her pregnancy, and they ultimately opined that:

[17] The amended complaint asserts § 1983 claims based only on shackling during labor and postpartum recovery. It does not allege that Remlinger was shackled during delivery, and, notwithstanding this comment by Drs. Ottenheimer and Lieb, there is no affirmative evidence that she was shackled during delivery. Indeed, it is clear from the evidence cited by the parties that shackles were fully removed prior to Remlinger's delivery by emergency cesarean section. It is not clear when they were reapplied because she was under anesthesia at the time, but there is no evidence that shackles were reapplied before her delivery was complete. The plaintiff's own statement of material facts asserts that the shackles were reapplied only after she had been moved to a recovery room after the delivery was complete. (Doc. 100 ¶ 46.)

These acts perpetrated by the staff at the Lebanon County Correctional Facility violate international and domestic medical, ethical and legal guidelines and put Ms. Remlinger at higher risk for obstetric and psychological complications during her pregnancy.

(Ottenheimer & Lieb Expert Report 9.)

IV. Defendants' Motions for Summary Judgment A. Defendants Hauck and Davis

In Count II of the amended complaint, the plaintiff has asserted a § 1983 shackling claim against defendant Corporal Davis, and in Count IV, the plaintiff has asserted state-law intentional infliction of emotional distress claims against Davis and Deputy Warden Tony Hauck^[18]premised upon the same use of shackles to restrain Remlinger during labor and postpartum recovery. The defendants have moved for summary judgment with respect to these claims against these two defendants on the ground that Remlinger has failed to adduce any evidence of personal involvement in the allegedly unconstitutional or tortious conduct by either of these two defendants.

[18] The original and amended complaints identified this defendant as “Deputy Warden Tony Haus.” For this report, we have adopted the presumably correct spelling of his surname as used by his own counsel.

The plaintiff has expressly conceded this issue in her brief in opposition. (See Doc. 116, at 1 n.2 (conceding claims against defendants Davis and Houck and declining to oppose their motion for summary judgment). Under these circumstances, we find that the plaintiff has waived her claim against these two defendants, entitling them to summary judgment. See Rife v. Borough of Dauphin, 647 F.Supp.2d 431, 441-42 (M.D. Pa. 2009).

Accordingly, we recommend that summary judgment be granted in favor of defendants Davis and Houck with respect to the plaintiff's § 1983 shackling-while-pregnant and state-law intentional infliction of emotional distress claims asserted against them, as set forth in Counts II and IV of the amended complaint.

B. Solitary Confinement Claims

In Count III, the plaintiff has asserted a § 1983 municipal liability claims against the County based upon prison officials' subjecting Remlinger to two periods of extended solitary confinement while pregnant. The County has moved for summary judgment.

“On its face, § 1983 makes liable ‘every person' who deprives another of civil rights under color of state law.” Burns v. Reid, 500 U.S. 478, 497 (1991) (Scalia, J., concurring in part and dissenting in part). In Monell v. Department of Social Services, 436 U.S. 658 (1978), the Supreme Court of the United States established that municipalities and other local governmental units are included among those “persons” subject to liability under § 1983. Id. at 690. Lebanon County is such a municipality subject to liability as a “person” under § 1983. See Id. at 694; Mulholland v. Gov't Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013).

But “[u]nder Monell, a municipality cannot be subjected to liability solely because injuries were inflicted by its agents or employees.” Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 249 (3d Cir. 2007). Rather, a municipality can be liable under § 1983 only if the conduct alleged to be unconstitutional either “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers” or is “visited pursuant to governmental ‘custom' even though such a custom has not received formal approval through the body's official decision-making channels.” Monell, 436 U.S. at 690-91. “[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Jiminez, 503 F.3d at 249. “A plaintiff must identify the challenged policy, attribute it to the [municipality or corporation] itself, and show a causal link between execution of the policy and the injury suffered.” Losch v. Borough of Parkesburg, 736 F.2d 903, 910 (3d Cir. 1984).

Here, the plaintiff's claims are based on two separate periods of solitary confinement. First, Remlinger was placed into segregation in April 2017 for a thirty-day period following her arrival at LCCF because she was experiencing drug withdrawal symptoms and needed to detox. Second, Remlinger was placed into medical isolation in June and July 2017, purportedly due to issues with her food intake and nutritional health.

Remlinger was first placed in segregation for a period of thirty days immediately following her arrival at LCCF on April 7, 2017, because she was detoxing from heroin. It is undisputed that this housing placement was pursuant to an affirmative policy or practice by the County providing that all inmates who are detoxing be placed in segregated housing, without consideration of whether they are pregnant. Although Remlinger appears to have first been placed in segregation to detox before she and prison staff learned that she was pregnant, her placement there continued even after prison officials learned she was pregnant. About thirty days later, Remlinger was transferred to the prison's general population after she finished detoxing.

It is well-settled that, under the Due Process Clause of the Fourteenth Amendment, pretrial detainees possess a constitutional right “to be free from punishment.” See Bell v. Wolfish, 441 U.S. 520, 535 (1979). Under Bell, conditions of confinement imposed by prison officials on pretrial detainees may constitute punishment prohibited by substantive due process where:

(1) there is a showing of express intent to punish on the part of those officials; (2) the restriction or condition is not rationally related to a legitimate non-punitive government purpose, i.e., if it is arbitrary or purposeless; or (3) the restriction is excessive in light of that purpose.

Steele v. Cicchi, 855 F.3d 494, 504 (3d Cir. 2017) (internal quotation marks and brackets omitted).

Here, there is no contention-much less evidence-that Remlinger's placement into segregation in April 2017 was intended to punish her for her alleged criminal conduct, committed prior to her detention. See Id. at 504-05. Although the plaintiff contends that her placement into segregation was not rationally related to a legitimate non-punitive government purpose, it is beyond cavil that the prison has a legitimate, non-punitive government interest in preserving the health and safety of inmates in its custody, and segregation to permit close observation of a substance-addicted inmate grappling with detox symptoms is rationally related to that objective. See, e.g., Garcia v. Cty. of Bucks, 155 F.Supp.2d 259, 267 n.12 (E.D. Pa. 2001); see also Reynolds v. Bucks, 833 F.Supp. 518, 521 (E.D. Pa. 1993) (“Courts should defer to the judgment of administrators in matters affecting the health and safety of inmates.”) (citing Bell, 441 U.S. at 546-48).

We find a genuine dispute of material fact, however, with respect to whether this restriction was excessive in light of that purpose. Although the use of segregation to permit close observation of a detoxing inmate is rationally related to the institutional purpose of preserving of inmate health and safety, the plaintiff has proffered an unrebutted expert opinion by Drs. Otttenheimer and Lieb that placement into solitary confinement for any amount of time is uniquely detrimental to the health of pregnant inmates because of increased risk of complications due to limited access to prenatal health care and an especially high risk of psychological damage.^[19](Ottenheimer & Lieb Expert Report 7-9.) Based on the evidence of record, viewed in the light most favorable to the non-moving plaintiff, a reasonable jury could conclude that Remlinger's placement into segregation for thirty days to detox, pursuant to an affirmative municipal policy, was an excessive restriction in light of her pregnancy.

[19] The defendants have proffered the expert opinion of Dr. Debbs on the shackling issue, but Dr. Debbs did not opine on the issue of solitary confinement.

Remlinger was next placed in segregation on June 16, 2017, for an approximately six-week period of medical isolation at the direction of medical staff, who were concerned about Remlinger's food intake and the nutritional health of Remlinger and her baby. This placement in medical isolation was purportedly intended to permit prison staff to more closely monitor her food intake and to prevent her from giving away her food to other inmates. On July 28, 2017, Remlinger was returned to general population, one day after her outside medical providers advised LCCF medical staff that she could be removed from medical isolation because she had gained an appropriate amount of weight and her nutritional health was back to normal.

The plaintiff has failed to identify an affirmative municipal policy that caused this second period of solitary confinement. Rather, the evidence adduced by the parties on summary judgment depicts a single, isolated incident, specific to this plaintiff's circumstances, in which non-party medical staff made a determination to place an inmate into medical isolation to permit staff to more closely monitor and control her dietary intake in the interest of the safety of both inmate and child, and in which the inmate was released from medical isolation when her outside medical providers deemed it medically appropriate. Despite the opportunity to engage in substantial discovery, the plaintiff has failed to adduce evidence of any prior incidents at LCCF involving a pregnant inmate who was placed into medical isolation for an extended period of time. See Connick v. Thompson, 563 U.S. 51, 62 (2011) (“A pattern of similar constitutional violations by untrained employees is ‘ordinarily necessary' to demonstrate deliberate indifference for purposes of failure to train. . . . Without notice that a course of training is deficient in a particular respect, decisionmakers can hardly be said to have deliberately chosen a training program that will cause violations of constitutional rights.”); City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“[A] single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”); Brown v. City of Pittsburgh, 86 F.3d 263, 292-93 (3d Cir. 2009) (recognizing that, where no explicit policy is identified, “‘more proof than the single incident will be necessary' to establish a causal connection between the incident and some municipal policy”).

Accordingly, we recommend that the County Defendants' summary judgment motion be granted in part and denied in part with respect to the plaintiff's § 1983 municipal liability claims concerning her placement into solitary confinement, set forth in Count III of the amended complaint. We recommend that summary judgment be granted in favor of defendant Lebanon County with respect to the plaintiff's § 1983 municipal liability claim arising out of her placement into medical isolation in June and July 2017, and that summary judgment be denied with respect to the plaintiff's § 1983 municipal liability claim arising out of her placement into segregation for detoxification in April 2017.

C. Induced Labor Claims

In Count I of the amended complaint, the plaintiff has asserted § 1983 deliberate indifference claims against the County and Warden Karnes based on the decision to induce labor two weeks before her due date, allegedly for unspecified non-medical reasons. These defendants have moved for summary judgment on the grounds that the plaintiff has failed to adduce evidence of any personal involvement in this decision by Warden Karnes or of any policy, practice, or custom of the County that brought about the decision to induce labor in this case.

It is well-established that, “[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted). Here, in light of the warden's unequivocal testimony that he had nothing whatsoever to do with the decision to induce labor, the notations in medical treatment records suggesting that the induction of labor was recommended and planned by her obstetricians, and the unrebutted expert opinion of Dr. Debbs that induction of labor was appropriate and consistent with the applicable standard of obstetrical care, we find no reasonable jury could conclude, based on the record as a whole, even when viewed in the light most favorable to the non-moving plaintiff, that Warden Karnes had any personal involvement in the decision to induce labor.

Similarly, the plaintiff has failed to demonstrate a genuine dispute of material fact with respect to municipal liability for induction of labor. The plaintiff has failed to identify an affirmative policy or adduce any evidence of a custom or practice of inducing labor in pregnant inmates at LCCF.^[20] See Monell, 436 U.S. at 690-91 (1978). Moreover, the plaintiff has failed to adduce any evidence of causation, particularly in light of the evidence discussed above with respect to the personal involvement of Warden Karnes.

[20] The plaintiff's motion papers and evidence appear to implicate the County's policy forbidding the disclosure of future medical appointment dates to inmates for security reasons. But while that policy may have caused some surprise to Remlinger by precluding prison staff and medical providers from discussing the planned induction of labor with her until the day she was induced, there is nothing in the record before us to suggest that this policy caused the decision itself to induce labor.

Accordingly, we recommend that summary judgment be granted in favor of defendants Lebanon County and Warden Karnes with respect to the plaintiff's § 1983 municipal and supervisory liability claims concerning the induction of labor, as set forth in Count I of the amended complaint.

D. Shackling Claims

In Count II of the amended complaint, the plaintiff has asserted § 1983 deliberate indifference claims against the County and all remaining individual defendants based on her placement in shackles during transport to the hospital while pregnant in April 2017 and while in labor and during postpartum recovery in October 2017. The defendants have moved for summary judgment.

The Supreme Court has set forth standards for violations of the Eighth Amendment based on both medical and nonmedical conditions of confinement. See Wilson v. Seiter, 501 U.S. 294, 298, 303-04 (1991) (nonmedical); Estelle v. Gamble, 429 U.S. 97, 104 (1976) (medical). This same standard applies to pretrial detainees through the Due Process Clause. See Kost v. Kozakiewicz, 1 F.3d 176, 188 (3d Cir. 1993) (nonmedical); Brown v. Borough of Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (medical); see also City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (pretrial detainee's due process rights are at least as great as a convicted prisoner's Eighth Amendment rights); Bell, 441 U.S. at 539 (pretrial detainees have an additional due process right to freedom from punishment).

To prevail on a substantive due process claim based on conditions of confinement, a pretrial detainee must demonstrate “that prison officials acted with deliberate indifference and that he or she suffered a deprivation of ‘the minimal civilized measures of life's necessities,'” such as adequate food, clothing, shelter, sanitation, medical care, and personal safety. Kost, 1 F.3d at 188 (quoting Wilson, 501 U.S. at 298, 303-04). To satisfy the former, subjective component of a conditions-of-confinement claim, a plaintiff must establish that the state actor acted with “deliberate indifference,” a state of mind equivalent to gross negligence or reckless disregard of a known risk of harm. See Farmer v. Brennan, 511 U.S. 825, 836 & n.4 (1994). To satisfy the latter, objective component, a plaintiff must demonstrate conditions that, either alone or in combination, deprive him or her of “the minimal civilized measure of life's necessities,” such as adequate food, clothing, shelter, sanitation, medical care, or personal safety. See Rhodes v. Chapman, 452 U.S. 337, 347-48 (1981); Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992). This includes conditions of confinement posing a “substantial risk of serious harm” to the inmate. See Farmer, 511 U.S. at 834, 847.

To establish a substantive due process claim for improper medical care, a prisoner must show “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This standard is two-pronged. It requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious.” West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978). A serious medical need exists if failure to treat such condition would constitute a “denial of the minimal civilized measure of life's necessities.” Farmer, 511 U.S. at 834.

[T]he concept of a serious medical need . . . has two components, one relating to the consequences of a failure to treat and one relating to the obviousness of those consequences. The detainee's condition must be such that a failure to treat can be expected to lead to substantial and unnecessary suffering, injury, or death. Moreover, the condition must be “one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention.”

Colburn v. Upper Darby Twp., 946 F.2d 1017, 1023 (3d Cir. 1991) (quoting Monmouth County Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)).

As the Supreme Court has recognized, there is “no significant distinction between claims alleging inadequate medical care and those alleging inadequate ‘conditions of confinement.'” Wilson, 501 U.S. at 303. Whether one characterizes the treatment received by Remlinger as “inhumane conditions of confinement, failure to attend to [her] medical needs, or a combination of both,” the same deliberate indifference standard ultimately applies. See Id. (quoting LaFaut v. Smith, 834 F.2d 389, 391-92 (4th Cir. 1987) (Powell, J.)).

By its nature, a claim regarding the shackling of a pregnant inmate does not fit neatly within the compass of serious medical needs jurisprudence. See Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 569 (6th Cir. 2013). “A shackling claim does not necessarily involve the denial of or interference with medical treatment; rather, it may be premised on the notion that the shackles increase [the pregnant inmate's] risk of medical complications.” Id. at 570. For this reason, the earliest federal court to address such a claim considered it simply as a conditions-of-confinement claim. See Women Prisoners of D.C. Dep't of Corrs. v. Dist. Of Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994) (“[S]hackl[ing] pregnant women prisoners in the third trimester of pregnancy and immediately after delivery poses a risk so serious that it violates contemporary standards of decency.”), modified in part on other grounds, 899 F.Supp. 659 (D.D.C. 1995), vacated in part and remanded on other grounds, 93 F.3d 910 (D.C. Cir. 1996). Yet these shackling claims also routinely involve medical proof not typically addressed in the conditions of confinement context. See Villegas, 709 F.3d at 570.

Thus, more recent decisions addressing the shackling of pregnant inmates have universally applied a hybrid standard: “(1) whether [the plaintiff] had a serious medical need or whether a substantial risk to her health or safety existed, and (2) whether [the defendant] had knowledge of such serious medical need or substantial risk to [the plaintiff's] health or safety but nevertheless disregarded it.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 529 (8th Cir. 2009) (en banc) (convicted prisoner); see also Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1248 (9th Cir. 2016) (pretrial detainee); Villegas, 709 F.3d at 571 (immigration detainee in a municipal jail) (quoting Nelson, 583 F.3d at 529); Brawley v. Washington, 712 F.Supp.2d 1208, 1219 (W.D. Wash. 2010) (convicted prisoner).

Echoing the seminal Women Prisoners decision, these later decisions have recognized that “shackling female prisoners while they are in labor creates a substantial risk of serious harm and violates contemporary standards of decency.” Mendiola-Martinez, 836 F.3d at 1252.

[T]he shackling of pregnant detainees while in labor offends contemporary standards of human decency such that the practice . . . poses a substantial risk of serious harm. The universal consensus from the courts to have addressed this issue as well as the chorus of prominent organizations condemning the practice demonstrates that, without any extenuating circumstances, shackling women during labor runs afoul of the protections of the Eighth [and Fourteenth] Amendment[s].

Villegas, 709 F.3d at 574 (citation omitted); see also Nelson, 583 F.3d at 529 (denying summary judgment based on expert testimony that shackling was inherently dangerous to both mother and unborn fetus); Brawley, 712 F.Supp.2d at 1219-20 (finding pregnant inmate “was exposed to a sufficiently serious risk of harm and had a serious medical need-being in labor-when she was shackled” to a hospital bed).

The defendants generally argue that the plaintiff has failed to adduce sufficient evidence that they each knew that shackling would create a risk of serious harm or cause a delay in medical treatment. But in light of Pennsylvania's enactment of 61 Pa. Cons. Stat. Ann. § 5905 as part of Act 45 seven years before Remlinger was incarcerated,^[21] as well as the broad condemnation of the practice by prominent organizations in the medical and correctional fields, a factfinder could reasonably conclude that the defendants were aware of the substantial risk of harm caused by shackling an inmate during transport to the hospital, while in labor, and during postpartum recovery, and that they were deliberately indifferent to that risk by shackling her under these conditions. See Mendiola-Martinez, 836 F.3d at 1256 (characterizing the risk of harm as “obvious”);^[22] see also Nelson, 583 F.3d at 534 (same); Women Prisoners, 877 F.Supp. at 669 (same). See generally Hope v. Pelzer, 536 U.S. 730, 738 (2002) (“We may infer the existence of this subjective state of mind [(deliberate indifference)] from the fact that the risk of harm is obvious.”). Courts are also in agreement, however, that a pregnant inmate's right to be free from shackling is not unqualified. Under some circumstances-e.g., when the inmate is a substantial flight risk or an extraordinary threat to herself or others-the shackling of a pregnant inmate may be tolerated by society. See Villegas, 709 F.3d at 574. Generally, the defendants here contend that the shackling of pregnant detainees may serve legitimate penological interests-such as security and safety. The plaintiff has countered that, although she may have faced serious felony charges involving violence by a co-conspirator and with a high bail amount, this particular pregnant inmate was herself an essentially non-violent offender with no prison misconduct history. The plaintiff notes that she was routinely transported outside the prison for methadone treatment and pregnancy-related ultrasound imaging without the use of restraints. During these trips, Remlinger never attempted escape or endangered the safety of herself or the correctional officers escorting her.

[21] See supra note 6.

[22] We note that the Mendiola-Martinez court found summary judgment proper with respect to that plaintiff's postpartum placement in restraints, but the six-to-eight foot “leg tether” used postpartum in Mendiola-Martinez does not resemble the apparently more restrictive shackles used in this case. See Mendiola-Martinez, 836 F.3d at 1256.

1. Qualified Immunity

Except for Warden Karnes, the individual defendants have interposed a qualified immunity defense. “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). “Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Id.

A qualified immunity determination involves a two-pronged inquiry: (1) whether a constitutional or federal right has been violated; and (2) whether that right was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise discretion in deciding which of the two Saucier prongs should be addressed first).

Here, we find infra that there is a genuine dispute of material fact under the first prong with respect to each of these individual defendants. These defendants contend that they are nevertheless entitled to qualified immunity because the right at issue was not clearly established at the time, primarily because there was no binding Supreme Court or Third Circuit case law on point to put the defendant on notice that his conduct might be unconstitutional. But, as we have previously recognized, “[w]hen reviewing a qualified immunity defense, courts should examine their own and other relevant precedents.” Williams v. Bitner, 285 F.Supp.2d 593, 604 n.15 (M.D. Pa. 2003) (citing Elder v. Holloway, 510 U.S. 510, 516 (1994)). The plaintiff has identified several cases predating the events of this case in which federal courts have found the shackling of pregnant women during labor, delivery, and shortly postpartum to constitute deliberate indifference. See, e.g., Villegas, 709 F.3d at 574 (recognizing that shackling of pregnant detainees while in labor without any extenuating circumstances is unconstitutional); Brawley, 712 F.Supp.2d at 1219 (recognizing that shackling inmate to a hospital bed while in labor exposed her to a serious risk of harm); Women Prisoners, 877 F.Supp. at 668-69 (holding that “[w]hile a woman is in labor and shortly thereafter, . . . shackling is inhumane” and thus defendants acted with deliberate indifference).

Moreover, as the plaintiff notes, the practice had been prohibited by state statute since the adoption of 61 Pa. Cons. Stat. Ann. § 5905 as part of Act 45 in 2010. See supra note 6. Although it is true that mere violation of a state statute or regulation does not itself vitiate the defense of qualified immunity, see Davis v. Scherer, 468 U.S. 183, 194 (1984), under the circumstances presented here-particularly in light of the substantial and growing weight of judicial, legislative, professional, and ethical authority cited by the plaintiffs on this issue-we find summary judgment on qualified immunity to be inappropriate in this case. See Nelson, 583 F.3d at 528-34 (affirming denial of summary judgment on qualified immunity grounds); Brawley, 712 F.Supp.2d at 1217-21 (same); cf. E.D. v. Sharkey, 928 F.3d 299, 308 (3d Cir. 2019) (“That [the defendant's] conduct was illegal renders [the plaintiff's] right to be free from [that conduct] so ‘obvious' that it could be deemed clearly established even without materially similar cases.”) (internal quotation marks omitted).

2. April 2017 Shackling Claim

With respect to defendant Van Dusen, the defendants do not dispute that Van Dusen shackled Remlinger to a stretcher before she was transported an outside hospital on April 26, 2017, and that she was pregnant at the time. They argue that they are entitled to summary judgment on this claim because Van Dusen was unaware at the time that Remlinger was pregnant or that the bleeding disorder for which she was being transported to the hospital was pregnancy-related. But, as noted above, the plaintiff has cited deposition testimony by the plaintiff in which she testified that she personally heard a nurse tell Van Dusen that she was pregnant before she was transported out of the prison. Thus, we find a genuine dispute of material fact with respect to whether Van Dusen had the necessary knowledge to have acted with deliberate indifference. The defendants also argue that Remlinger's criminal charges and bail amount made her a “high-risk” inmate, and thus shackling was justified. This, however, is a factual matter that must be left to a jury for determination.

Accordingly, we recommend that summary judgment be denied with respect to the plaintiff's § 1983 shackling-while-pregnant claims asserted against defendant Van Dusen, as set forth in Count II of the amended complaint.

3. October 2017 Shackling Claim

With respect to defendants Hocker, Gettle, Schwartz, Herr, Williams, and Fink the defendants do not dispute that Remlinger was at times shackled during her labor on October 17, 2017, and her postpartum recovery from October 17, 2017, through October 22, 2017.

It is undisputed that defendants Hocker and Gettle were personally involved in the initial shackling of Remlinger. Hocker directed Gettle to shackle Remlinger's leg to the bed after the second correctional officer, Schwartz, was called back to LCCF, leaving Gettle as the only officer guarding Remlinger. Gettle applied the shackles to Remlinger's legs, removing them only three times: Once to permit the inmate to move from her bed to a rocking chair, where shackles were reapplied; once to permit the inmate to return to her bed, where shackles were reapplied; and once to permit the inmate to attempt to use the bathroom, with the shackles being reapplied when she returned to her bed. The shackles were finally removed just prior to delivery of Remlinger's baby by emergency C-section, when Gettle first removed the shackles from one leg at a physician's request so he could perform an internal examination, and then removed the shackles entirely at a physician's request before Remlinger was moved to an operating room for the C-section. The parties dispute the extent to which Remlinger remained shackled during labor and whether shackling despite her pregnancy was justified by security concerns.^[23]

[23] While the plaintiff appears to contend that Hocker should be held liable for her shackling on successive shifts due to his initial instructions to Gettle, it is Hocker's unrebutted testimony that he was serving as shift commander for only the first eight-hour shift when Remlinger's labor and delivery occurred. Thus, there is simply no evidence at all in the record that Hocker was personally involved in any of the postpartum shackling.

It is undisputed that, during her several days of postpartum recovery, Remlinger was shackled for periods of time while defendants Gettle, Schwartz, Herr, and Williams guarded her in eight-hour shifts. The parties dispute the extent to which Remlinger remained shackled during those shifts and whether shackling despite her postpartum, post-cesarean condition was justified by security concerns. It is undisputed that Fink also guarded her for one eight-hour shift, but the parties dispute whether Remlinger was shackled at all during that period, and whether shackling despite her postpartum, post-cesarean condition was justified by security concerns.

Thus, we find a genuine dispute of material fact with respect to whether these individual defendants-Hocker, Gettle, Schwartz, Herr, Williams, and Fink-acted with deliberate indifference to Remlinger's serious medical needs or a substantial risk to her health or safety.

Accordingly, we recommend that summary judgment be denied with respect to the plaintiff's § 1983 shackling-while-pregnant claims asserted against defendants Hocker, Gettle, Schwartz, Herr, Williams, and Fink, as set forth in Count II of the amended complaint.

4. Municipal Liability Claim

The plaintiff seeks to hold the County liable for the aforementioned shackling incidents.

LCCF has promulgated a policy concerning the use of restraints on pregnant inmates. As noted by the defendants in their motion papers, this policy expressly adopted the restrictions on the use of restraints on pregnant inmates set forth in Act 45. See supra note 6 and accompanying text. The plaintiff argues that the policy is nevertheless constitutionally deficient because the policy itself only imposes reporting requirements on individual prison staff; it does not expressly prohibit or restrict the use of shackles or other restraints. But policies are not deficient simply because they are not the best. See Serafin v. City of Johnstown, 53 Fed. App'x 211, 215 (3d Cir. 2002) (“The fact that the City's policy was not the most effective policy possible, however, does not, without more, create an unreasonable risk to detainees' safety or demonstrate the City's indifference to such a risk, and there is no ‘more' here.”); see also Koreny v. Smith, Civil Action No. 17-371, 2018 WL 1141513, at *16 (W.D. Pa. Mar. 2, 2018) (“An assertion that a constitutional injury could have been avoided with more or better training is insufficient.”). While an explicit prohibition or restriction on the use of restraints might better underscore the substantive restrictions that apply to the use of restraints by LCCF staff than this oblique reference to a state statute imposing such restrictions, the omission of such language does not render the policy constitutionally deficient.

Alternatively, the plaintiff contends that municipal liability may be imposed notwithstanding the express terms of this written policy based on the existence of a custom or practice among LCCF staff of applying shackles to pregnant inmates without an appropriate individualized determination that the shackled pregnant inmate presents a substantial risk of imminent flight or that some other extraordinary medical or security circumstance requires the use of restraints to ensure the safety and security of the inmate, correctional or medical staff, other inmates, or the public.

“Even in the absence of formal policymaking activity, an ‘official policy' may be inferred from informal acts or omissions of supervisory municipal officials . . . .” Colburn v. Upper Darby Twp., 838 F.2d 663, 671 (3d Cir. 1988) (citations and internal quotation marks omitted). For example, in Colburn, the Third Circuit found that “a custom of laxity regarding the supervision and monitoring of their jail cells and in searching individuals taken into police custody,” which led to a detainee's suicide using a hidden firearm, was sufficient to plead an “official policy” under Monell and § 1983. Id. Notably, the complaint in Colburn further alleged that the plaintiff's decedent was the third inmate to commit suicide in the jail within a three-year span, providing the municipality and its governing officials with actual or constructive knowledge of the alleged custom of inadequate monitoring of jail cells. See Id. at 672; cf. Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (“[A] single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker.”); Brown v. City of Pittsburgh, 586 F.3d 263, 292-93 (3d Cir. 2009) (recognizing that where no explicit policy is identified, “‘more proof than the single incident will be necessary' to establish a causal connection between the incident and some municipal policy”).

Here, while the plaintiff has articulated a reasonable argument that a custom or practice of shackling pregnant inmates without adequate justification may have existed among prison staff, she has failed to adduce any evidence of prior adverse incidents involving the use of shackles on pregnant inmates-no prior injuries to a pregnant inmate or her child that occurred as a result of the use of shackles or other restraints, no prior inmate grievances or outside complaints, and no prior investigations or litigation-that might bring this custom or practice to the attention of municipal policymakers, such that the custom or practice might then be considered “official policy” of the County.^[24] Without pointing to evidence of any such prior incidents, the plaintiff has failed to establish that the municipality and its governing officials had actual or constructive knowledge of this allegedly unconstitutional custom or practice of shackling pregnant inmates without adequate justification.

[24] We note that, as a matter of law in Pennsylvania, the warden himself is not such a municipal policymaker for Lebanon County, as the requisite final authority to establish municipal policy concerning the safekeeping of LCCF inmates resides with the county prison board that appointed and supervises him. See Tarapchak v. Lackawanna Cty., 173 F.Supp.3d 57, 85 (M.D. Pa. 2016); Kis v. Cty. of Schuylkill, 866 F.Supp. 1462, 1479-80 & n.35 (E.D. Pa. 1994). See generally B.W. v. Career Tech. Ctr., 422 F.Supp.3d 859, 890 (M.D. Pa. 2019) (“A court may find that a municipal policy exists when a decisionmaker possessing final authority to establish municipal policy with respect to the action issues an official proclamation, policy, or edict. It is also possible for a court to find the existence of a municipal policy in the isolated decision of an executive municipal policymaker.”) (internal citations and quotation marks omitted).

Accordingly, we recommend that summary judgment be granted in favor of defendant Lebanon County with respect to the plaintiff's § 1983 municipal liability claim arising out of her being shackled while pregnant, as set forth in Count II of the amended complaint.

5. Supervisory Liability Claim

The plaintiff seeks to hold Warden Karnes liable for the aforementioned shackling incidents as well.

It is well-established that “[c]ivil rights claims cannot be premised on a theory of respondeat superior. Rather, each named defendant must be shown . . . to have been personally involved in the events or occurrences which underlie a claim.” Millbrook v. United States, 8 F.Supp.3d 601, 613 (M.D. Pa. 2014) (citation omitted). “A defendant in a civil rights action must have personal involvement in the alleged wrongs to be liable, and cannot be held responsible for a constitutional violation which he or she neither participated in nor approved.” Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007). Typically, personal involvement may be established through: (1) personal direction or actual participation by the defendant in the misconduct; or (2) knowledge of and acquiescence in the misconduct. Id. As the defendants have noted in their motion papers, the plaintiff has failed to adduce evidence that Warden Karnes personally directed or actually participated in the use of shackles on Remlinger while pregnant, nor has she shown that Warden Karnes contemporaneously knew of and acquiesced in these actions by LCCF staff. As previously explained by the Third Circuit: “A defendant in a civil rights action must have personal involvement in the alleged wrongs . . . . [P]ersonal involvement can be shown through [evidence] of personal direction or of actual knowledge and acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).

Alternatively, § 1983 liability may result if a supervising defendant caused a subordinate to violate another's constitutional rights through the execution of an official policy or settled informal custom. See Sample v. Diecks, 885 F.2d 1099, 1117-18 (3d Cir. 1989).

[T]o hold a supervisor liable because his policies or practices led to [a constitutional] violation, the plaintiff must identify a specific policy or practice that the supervisor failed to employ and show that: (1) the existing policy or practice created an unreasonable risk of the [constitutional] injury; (2) the supervisor was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that risk; and (4) the injury

resulted from the policy or practice.

Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 2001) (citing Sample, 885 F.2d at 1118).

With respect to supervisory liability for Warden Karnes, the plaintiff has adduced evidence that he was aware of the purportedly inappropriate criteria used by his subordinates to determine whether shackling of a particular pregnant inmate was permissible, despite the general prohibition on the use of restraints on pregnant inmates. (See Karnes Dep. 27, 42-45.) The plaintiff has also adduced evidence that the warden was indifferent to the risk of unreasonable shackling. (See Id. at 59.) Based on this and the other evidence of record, viewed in the light most favorable to the non-moving plaintiff, a reasonable jury could conclude that Warden Karnes caused his subordinates to violate Remlinger's constitutional rights through the execution of an official policy or settled informal custom.

Accordingly, we recommend that summary judgment be denied with respect to the plaintiff's § 1983 supervisory liability claim against Warden Karnes arising out of her being shackled while pregnant, as set forth in Count II of the amended complaint.

E. State-Law Emotional Distress Claims

In Count IV, the plaintiff asserts state-law intentional infliction of emotional distress (“IIED”) claims against all individual defendants based on her being shackled while in labor and during postpartum recovery. Certain defendants seek summary judgment on the ground that they are immune from liability for IIED under the Pennsylvania Political Subdivision Tort Claims Act (“PPSTCA”), 42 Cons. Stat. Ann. § 8541 et seq. All of the individual defendants seek summary judgment on the merits of these claims.

1. Defendant Van Dusen

It is undisputed that defendant Van Dusen had no personal involvement in the October 2017 shackling of Remlinger while pregnant. The plaintiff's IIED claim arising out of the April 2017 incident that did involve Van Dusen was previously dismissed for failure to state a claim upon which relief can be granted. (See Doc. 66; Doc. 67; see also Doc. 59.) Accordingly, we recommend that summary judgment be granted in favor of defendant Van Dusen with respect to the plaintiff's state-law IIED claim arising out of her being shackled while pregnant in October 2017, as set forth in Count IV of the amended complaint.

2. PPSTCA Immunity

Defendants Hocker and Fink contend that the plaintiff's IIED claims are barred by the PPSTCA.

Under the PPSTCA, municipal officials generally share the same immunity as the municipality for which they work. See 42 Pa. Cons. Stat. Ann. § 8545; Heckensweiler v. McLaughlin, 517 F.Supp.2d 707, 719 (E.D. Pa. 2007). The PPSTCA provides an exception from this official immunity, however, for “willful misconduct,” which Pennsylvania courts have held to be synonymous with the term “intentional tort.” See 42 Pa. Cons. Stat. Ann. § 8550; Heckensweiler, 517 F.Supp.2d 719 & n.72. Thus, under the PPSTCA, a municipal official may be personally immune from liability for negligent infliction of emotional distress claims, but not IIED claims. See Heckensweiler, 517 F.Supp.2d at 719-20.

3. IIED on the Merits

Under Pennsylvania law, an IIED claim requires the plaintiff to establish the following elements: “(1) the conduct must be extreme and dangerous; (2) it must be intentional or reckless; (3) it must cause emotional distress; [and] (4) that distress must be severe.” Clark v. Conahan, 737 F.Supp.2d 239, 272 (M.D. Pa. 2010) (quoting Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997)). Extreme and outrageous conduct is conduct which is so outrageous in character, and

so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Corbett v. Morgenstern, 934 F.Supp. 680, 684 (E.D. Pa. 1996) (quoting Johnson v. Caparelli, 625 A.2d 668, 672 (Pa. Super. Ct. 1993)). Moreover, “in order to state a claim under which relief can be granted for the tort of intentional infliction of emotional distress, the plaintiffs must allege physical injury.” Clark, 737 F.Supp.2d at 272 (quoting Hart v. O'Malley, 647 A.2d 542, 554 (Pa. Super. Ct. 1994). Where some special relationship exists, the test for IIED has been relaxed. See Bradshaw v. Gen. Motors Corp., 805 F.2d 110, 114 (3d Cir. 1986); Bowersox v. P.H. Glatfelter Co., 677 F.Supp. 307, 310 (M.D. Pa. 1988). The jailer-inmate relationship is one such special relationship. See Thompson v. United States, No. 16-3287, 2017 WL 2972679, at *4 (E.D. Pa. July 12, 2017).

Here, the plaintiff bases her IIED claims on her being shackled while in labor and during postpartum recovery. Based on the state statute prohibiting such shackling under the circumstances shown, the chorus of prominent national and international organizations condemning such practices, the expert opinions proffered by the plaintiff to illustrate the categorical disapproval of such conduct by professional and ethical authorities, and a universal consensus of courts to have addressed this practice, we find the evidence of record, viewed in the light most favorable to the non-moving plaintiff, sufficient for a reasonable jury to conclude that the shackling that occurred here constituted extreme and outrageous conduct, and that this conduct was intentional or reckless. Based on the evidence of record, viewed in the light most favorable to the non-moving plaintiff, a reasonable jury could also conclude that Remlinger suffered severe emotional distress as a result, and that the use of shackles caused physical injury inasmuch as they caused swelling and cut into the skin of Remlinger's legs, and they further delayed medical examination, treatment, and delivery.

With respect to Warden Karnes, however, there is no evidence whatsoever of his direct involvement in or personal direction of the application of shackles to Remlinger while pregnant. Instead, the plaintiff seeks to hold him liable for IIED under a respondeat superior theory of liability, based on his role as supervisor of the other individual defendants. “Although state tort claims can be premised on respondeat superior, only an employer is vicariously liable for the wrongful acts of an employee committed within the scope of employment.” Hatten v. Bledsoe, Civil No. 1:13-CV-00209, 2014 WL 5474071, at *2 (M.D. Pa. Oct. 28, 2014) (citing Straiton v. Rosinsky, 133 A.2d 257 (Pa. 1957)). Warden Karnes is not the employer of the other individual defendants; just like them, he is an employee of their mutual employer, Lebanon County. See id.

Accordingly, we recommend that, with respect to the plaintiff's state-law IIED claims, set forth in Count IV of the amended complaint, the County Defendants' summary judgment motion be granted, the summary judgment motion by defendants Hauck et al. be granted in part and denied in part, and the summary judgment motion by defendants Gettle et al. be denied. We recommend that summary judgment be granted in favor of defendants Karnes and Van Dusen with respect to the plaintiff's state-law IIED claims arising out of the shackling of the plaintiff during labor and postpartum recovery, and that summary judgment be denied with respect to the remainder of her IIED claims against the other individual defendants.

V. Plaintiff's Motion for Partial Summary Judgment

The plaintiff seeks partial summary judgment with respect to her shackling claims against defendants Gettle, Schwartz, and Hocker, her shackling-based municipal liability claims against the County, and her shackling-based supervisory liability claims against Warden Karnes. (Doc. 98.)

Based on the foregoing discussion, but viewing the record in the light most favorable to the non-moving defendants, we find that the plaintiff has failed to make the requisite prima facie showing that she is entitled to summary judgment with respect to her municipal liability claim against the County arising out of her being shackled during labor and postpartum recovery. Moreover, based on the foregoing discussion, but viewing the record in the light most favorable to the non-moving defendants, we find that there is a genuine dispute of material fact with respect to whether defendants Hocker, Gettle, and Schwartz acted with deliberate indifference to Remlinger's serious medical needs or a substantial risk to her health or safety, and with respect to whether Warden Karnes caused his subordinates to violate Remlinger's constitutional rights through the execution of an official policy or settled informal custom.

Accordingly, we recommend that the plaintiff's motion for partial summary judgment be denied.

VI. Recommendation

For the foregoing reasons, it is recommended that:

1. The motion for summary judgment by defendants Lebanon County and Warden Karnes (Doc. 91) be GRANTED in part and DENIED in part;

2. The Clerk be directed to enter JUDGMENT in favor of defendants Lebanon County and Warden Robert J. Karnes and against the plaintiff with respect to her § 1983 municipal and supervisory liability claims concerning the induction of labor, as set forth in Count I of the amended complaint;

3. The Clerk be directed to enter JUDGMENT in favor of defendant Lebanon County and against the plaintiff with respect to her § 1983 municipal liability claim arising out of her being shackled while pregnant, as set forth in Count II of the amended complaint;

4. The Clerk be directed to enter JUDGMENT in favor of defendant Lebanon County and against the plaintiff with respect to her § 1983 municipal liability claim arising out of her placement into medical isolation in June and July 2017, as set forth in Count III of the amended complaint;

5. The Clerk be directed to enter JUDGMENT in favor of defendant Warden Robert J. Karnes and against the plaintiff with respect to her state-law intentional infliction of emotional distress claim, as set forth in Count IV of the amended complaint;

6. The motion for summary judgment by defendants Hauck, Davis, Hocker, Fink, and Van Dusen (Doc. 94) be GRANTED in part and DENIED in part;

7. The Clerk be directed to enter JUDGMENT in favor of defendants Corporal Davis and Deputy Warden Tony Houck and against the plaintiff with respect to all claims against defendants Davis and Houck;

8. The Clerk be directed to enter JUDGMENT in favor of defendant Edward Van Dusen and against the plaintiff with respect to her state-law intentional infliction of emotional distress claim, as set forth in Count IV of the amended complaint;

9. The motion for summary judgment by defendants Gettle, Schwartz, Herr, and Williams (Doc. 102) be DENIED;

10. The plaintiff's motion for summary judgment (Doc. 98) be DENIED; and

11. This matter be set down for a JURY TRIAL on the plaintiff's remaining claims, to wit: (a) § 1983 shackling-while-pregnant claims against defendants Van Dusen, Hocker, Gettle, Schwartz, Herr, Williams, and Fink, as set forth in Count II of the amended complaint; (b) a § 1983 supervisory liability claim against defendant Warden Karnes arising out of the plaintiff's being shackled while pregnant, as set forth in Count II of the amended complaint; (c) a § 1983 municipal liability claim against Lebanon County arising out of her placement into segregation for detoxification in April 2017, as set forth in Count III of the amended complaint; and (d) state-law intentional infliction of emotional distress claims against defendants Hocker, Gettle, Schwartz, Herr, Williams, and Fink as set forth in Count IV of the amended complaint.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated August 26, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which

objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.