Grishelda Bryant v. John J. Maffucci, Dawn Thackeray, Yvonne Powell, Norwood Jackson and Dr. Edward Allan

JON 0. NEWMAN, Circuit Judge,

dissenting:

As this case came to us, it concerned a pregnant woman’s right to an abortion. As it leaves us, that woman — a pretrial detainee in a county jail — has not only been *987 denied an abortion, she has also been denied her right to a jury trial to determine whether the action of county jail officials in failing to honor her request for an abortion was so arbitrary as to be unconstitutional. From the affirmance of a summary judgment in favor of the jail officials, I respectfully dissent.

As the majority recognizes, plaintiffs case consists of at least the following factual allegations:

1. On the very first day that Grishelda Bryant was locked up in the Westchester Correctional Facility, July 31, 1985, she told officials that she was pregnant and wanted an abortion.

2. That same day, her pregnancy was confirmed by routine tests.

3. One day later, August 1, a sonogram averaging three fetal measurements estimated the age of the fetus at 21 weeks, and one measurement placed the age at 21.9 weeks. Bryant’s medical form at the hospital where the sonogram was performed was marked “EMERGENCY”.

4. On that second day, Bryant repeated her request for an abortion and was told to put her request in writing.

5. On the third day, August 2, Bryant repeated her request for an abortion and wrote letters to Senior Assistant Warden Dawn Thackery and Dr. Edward Allen, Medical Director of the County’s Correctional Health Services.

6. Thereafter, Bryant made almost daily requests for an abortion to jail staff members, including Warden Thackery and Assistant Warden Yvonne Powell.

7. On one occasion, Bryant spoke to Warden Thackery in a hallway about her request and was told to see Warden Powell.

8. Dr. Allen received Bryant’s written request on the ninth day of her confinement, August 8.

9. On that day, Dr. Allen told his assistant to schedule an early appointment for Bryant at Kings County Hospital Center.

10. An appointment was scheduled for the 20th day of Bryant’s confinement, August 19.

11. On that day, a second sonogram indicated a fetal age of 24 weeks, beyond the limit of permitted abortions in New York. See N.Y.Pen.Law § 125.05 (McKinney 1987).

12. No abortion was performed, and Bryant gave birth to a child.

Though recognizing that on the jail officials’ motion for summary judgment all reasonable inferences must be drawn in Bryant’s favor, the majority nonetheless concludes that the only finding a jury could reasonably make is that Bryant’s denial of an abortion resulted only from simple negligence on the part of prison officials.

I think it is clear that a jury could reasonably find that prison officials were reckless in their disregard of Bryant’s rights. In the first place, it was reckless for prison officials not to act on the second day of her confinement to arrange for a prompt abortion. The sonogram taken that day indicated a fetus of probably 21 weeks, and one measurement placed the age at nearly 22 weeks. The same considerations that prompted the “EMERGENCY” marking on Bryant’s medical form, no doubt influenced by the inevitable risk of some error in all medical measurements, could reasonably be found to require immediate scheduling of an abortion so that it could be performed safely within the State’s 24-week limit.

A jury could reasonably find that it was reckless not to schedule the abortion immediately and secure Bryant’s written request in the day or two that would inevitably intervene between the scheduling and the abortion.

A jury could reasonably find that Warden Thackery acted recklessly in shunting Bryant aside to deal with Warden Powell. Though a warden need not respond to all inmate grievances in hallway conversations, the request of a woman then thought to be 22 weeks pregnant for an abortion is not a minor quarrel about trivial conditions like the quality of prison food.

*988 A jury could reasonably find that it was reckless for prison officials not to schedule an abortion during the interval between August 1 and August 8, during which Bryant repeatedly requested an abortion.

A jury could reasonably find that it was reckless for Dr. Allen to accept whatever scheduling date the Kings County Hospital Center could give to his assistant.

A jury could reasonably find that it was reckless for all of the jail officials to accept the August 19 appointment date, a date that already placed Bryant well into her 24th week if the 21.9 week measurement taken on August 1 turned out to be correct, as it did.

A jury could reasonably find that it was reckless for the jail officials not to make inquiry of other metropolitan hospitals to see if an earlier appointment could be scheduled. It is a reasonable inference that somewhere in the New York metropolitan area, an abortion could have been promptly scheduled.

The Supreme Court has recognized that “time is likely to be of the essence in an abortion decision.” H.L. v. Matheson, 450 U.S. 398, 412 , 101 S.Ct. 1164, 1172 , 67 L.Ed.2d 388 (1981). In disregard of that obvious truth, the majority treats the 20-day delay in this case as no more than simple negligence. The six-day delay in delivering Bryant’s written communications within the jail is viewed as merely “inefficient.” Yet Bryant was repeatedly renewing her request for an abortion with personal pleas during that interval and prison officials were failing to act. The claim is not about slow delivery of prison mail; it is about reckless disregard of a woman’s repeated request to exercise a constitutional right. The officials’ acceptance of the eventual August 19 date is characterized by the majority as the permissible reliance on an unfortunate misdiagnosis. Perhaps a jury, properly instructed, could draw that inference, but it is surely not the only reasonable way to assess what occurred. Just as reasonable— more so, in my view — is the inference that with a diagnostic technique known to be inexact and with one measurement of that technique already placing the August 19 date beyond the State’s 24-week limit, it was plainly reckless not to call other area hospitals and arrange for an abortion on a date that was in fact the earliest possible date when the abortion could have been performed, not just a date that Dr. Allen can be said to have believed was the earliest date available at the one hospital where inquiry was made.

Grishelda Bryant was within the total control of government officials. Had she not been confined for lack of bail, she might have preferred to have her baby. Once incarcerated for lack of bail, she was entitled to exercise her constitutional right to choose an abortion. County officials delayed the exercise of that right, and their delay resulted in the denial of that right. Under the facts of this case, it is for a jury, not this Court, to decide whether the officials’ conduct reached that degree of arbitrariness that establishes a compensable constitutional injury.

In the District Court, Bryant’s claim was rejected because the District Judge applied to her substantive due process claim of denial of an abortion the “deliberate indifference” standard appropriate to an Eighth Amendment claim for inadequate medical care in prison. See Estelle v. Gamble, 429 U.S. 97, 104 , 97 S.Ct. 285, 291 , 50 L.Ed.2d 251 (1976). In this Court, the majority does not embrace the District Court’s reasoning, apparently recognizing that the “deliberate indifference” standard applicable to prisoners’ medical claims is too rigorous a standard to be applied to the claim of a pregnant prisoner asserting her constitutional right to an abortion. See Monmouth County Correctional Institutional Inmates v. Lanzaro, 834 F.2d 326 (3d Cir.1987), ce rt. denied, 486 U.S. 1006 , 108 S.Ct. 1731 , 100 L.Ed.2d 195 (1988) (recognizing that prison officials violate a prisoner’s right to an abortion by interposing roadblocks not justified by their reasonable relation to legitimate penological interests).

Nevertheless, the majority concludes that Bryant’s claim was properly rejected because in its view the delay in arranging for an abortion was nothing more than *989 simple negligence. Bryant not only her right to an abortion but also her right to a jury trial. Bryant requested an abortion on the first day of her confinement. On the second day of her confinement, with a sonogram indicating that she was very close to the time limit beyond which New York prohibits abortions, her condition was serious enough to be labeled “EMERGENCY” by hospital staff. Yet prison officials did not schedule an abortion until the 20th day of her confinement, which placed her beyond New York’s time limit. I think a jury would say that these officials were not simply negligent. I think a jury would say, “These officials didn’t give a damn.” That conclusion denies

Of course, the issue is not what I think a jury would say. It is whether the facts and circumstances presented by the prisoner, with all reasonable inferences drawn in her favor, are sufficient to send her case to a jury. In declining to do so, the majority fully credits the protestations of prison officials as to their concern for Grishelda Bryant. I do not know how a jury would assess the testimony of these officials. I am satisfied, however, that under all the circumstances, especially the totally inexcusable failure to make inquiry as to whether some other hospital in the area could perform an abortion promptly, a jury could reasonably conclude that their expressions of concern are suspect and could reasonably decide this case in plaintiff’s favor. At a minimum, Grishelda Bryant has a right to find out what a jury’s verdict would be.

I dissent.