                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                        Pursuant to Sixth Circuit I.O.P. 32.1(b)
                               File Name: 13a0059p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                                X
                                                 -
 JUANA VILLEGAS,
                                                 -
                           Plaintiff-Appellee,
                                                 -
                                                 -
                                                     No. 11-6031
          v.
                                                 ,
                                                  >
                                                 -
                                                 -
 THE METROPOLITAN GOVERNMENT OF

                        Defendant-Appellant. N-
 NASHVILLE AND DAVIDSON COUNTY,


                   Appeal from the United States District Court
                for the Middle District of Tennessee at Nashville.
             No. 3:09-cv-219—William J. Haynes, Jr., District Judge.
                            Argued: October 12, 2012
                       Decided and Filed: March 4, 2013
             Before: CLAY, GIBBONS, and WHITE, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Allison L. Bussell, DEPARTMENT OF LAW OF THE METROPOLITAN
GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Nashville,
Tennessee, for Appellant. Phillip F. Cramer, SHERRARD & ROE, PLC, Nashville,
Tennessee, for Appellee. ON BRIEF: Allison L. Bussell, Kevin C. Klein,
DEPARTMENT OF LAW OF THE METROPOLITAN GOVERNMENT OF
NASHVILLE AND DAVIDSON COUNTY, Nashville, Tennessee, for Appellant.
Phillip F. Cramer, John L. Farringer IV, William L. Harbison, Ryan T. Holt,
SHERRARD & ROE, PLC, Nashville, Tennessee, Elliott Ozment, Nashville, Tennessee,
for Appellee. Paul W. Ambrosius, TRAUGER & TUKE, Nashville, Tennessee, George
E. Barrett, BARRETT JOHNSTON, LLC, Nashville, Tennessee, Farah C. Diaz-Tello,
NATIONAL ADVOCATES FOR PREGNANT WOMEN, New York, New York, Alexa
Kolbi-Molinas, ACLU FOUNDATION, New York, New York, Eric Schnapper,
Maureen Howard, UNIVERSITY OF WASHINGTON SCHOOL OF LAW, Seattle,
Washington, Rebecca S. Jones, Seattle, Washington,, for Amici Curiae.
     CLAY, J., delivered the opinion of the court, in which GIBBONS, J., joined.
WHITE, J. (pp. 25–30), delivered a separate dissenting opinion.




                                         1
No. 11-6031           Villegas v. Metro. Gov’t of Nashville                                  Page 2


                                      _________________

                                            OPINION
                                      _________________

        CLAY, Circuit Judge. Plaintiff Juana Villegas brought suit under 42 U.S.C.
§ 1983, claiming violations of her Eighth Amendment rights (made applicable to pre-
trial detainees through the Fourteenth Amendment) as a result of her being restrained
and shackled prior to and following giving birth while in the custody of law enforcement
authorities employed by Defendant Metropolitan Government of Nashville and Davidson
County. On cross-motions for summary judgment, the district court granted summary
judgment to Plaintiff as to liability on both her shackling and denial-of-breast-pump
claims. The case went to trial only on damages, and the jury awarded Plaintiff $200,000.
For the reasons that follow, we REVERSE the district court’s grant of summary
judgment to Plaintiff and REMAND for further proceedings.

                                       BACKGROUND

        Plaintiff Juana Villegas’s saga began on July 3, 2008 when her car was stopped
by Berry Hill, Tennessee police officer Tim Coleman. At the time of the stop, Plaintiff
was nine months pregnant. When Plaintiff failed to produce a valid driver’s license,
Coleman arrested Plaintiff and transported her to the jail operated by the Davison
County Sheriff’s Office (“the jail”).1 Once there, a jail employee, working as an agent
of the United States through Immigration and Customs Enforcement’s 287(g) program,
see 8 U.S.C. § 1357(g), inquired into Plaintiff’s immigration status and determined that
Plaintiff was not lawfully in the United States. Due to her illegal status, a detainer was
placed on Plaintiff, which meant that federal immigration officials would delay taking
any action until after resolution of Plaintiff’s then-pending state charges. After being
unable to post bond, Plaintiff was, as a result of the immigration detainer, classified as
a medium-security inmate.



        1
           The jail accepts and houses individuals arrested by local law enforcement agencies without
inquiry into whether the arrest was proper.
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                            Page 3


       Plaintiff was held in the jail from Thursday, July 3, 2008 until late on Saturday,
July 5, 2008. At 10:00 p.m. on July 5, 2008, Plaintiff informed a jail guard that her
amniotic fluid (or “water”) had “broke” and that she was about to have her baby.
Plaintiff was transported to the jail infirmary where a nurse confirmed that Plaintiff’s
water had broken and summoned an ambulance to take Plaintiff to Nashville General
Hospital (the “Hospital”). For transportation in the ambulance, Plaintiff was placed on
a stretcher with her wrists handcuffed together in front of her body and her legs
restrained together. According to Defendant Metropolitan Government of Nashville
and Davidson County, because hospitals are “conducive to security breaches including
escape,” medium-security inmates at hospitals remain shackled until they return to jail.
(R. 79, Decl. of Richard Stalder, at PID# 680.) Two male officers (Matthew Barshaw
and Thomas Farragher) accompanied Plaintiff in the ambulance to the Hospital with
Barshaw riding in the front seat and Farragher in the back with Plaintiff. Barshaw
questioned his supervisor about the leg restraints because “what if all of a sudden the
baby started [and it] took more time to unrestrain these restraints in the back of the
ambulance.” (R. 86-1, Dep. of Matthew Barshaw, at PID# 845.)

       Upon arriving at the Hospital, Farragher removed Plaintiff’s shackles at the
request of Hospital staff so that Plaintiff could change into a hospital gown. Barshaw
and Farragher remained in the room with Plaintiff with their backs turned as she
changed, and after she finished, they again restrained her. Shortly after Plaintiff arrived
at the Hospital, officer Brandi Moore arrived to relieve Barshaw and Farragher.
Farragher informed Moore that Plaintiff was a “medium-security inmate” with a “hold”
or “detainer” in her file and gave Moore a “charge sheet,” indicating Plaintiff’s name,
charge, and custody level. After Farragher and Barshaw left, Moore removed Plaintiff’s
handcuffs but kept one of Plaintiff’s legs restrained to the hospital bed.

       At some point during Moore’s shift, Moore overheard Hospital staff talking to
a doctor about a “No Restraint Order” but claims that she never received such an order
from the Hospital. Additionally, Moore admitted to having been told by a nurse that she
“shouldn’t put leg irons on [Plaintiff],” but the conversation ended there. At 11:20 p.m.,
No. 11-6031              Villegas v. Metro. Gov’t of Nashville                                      Page 4


a Hospital doctor signed a physician’s order stating: “Please remove shackles,” and this
order was placed in Plaintiff's hospital file, though never specifically given to any
officer. (R. 78-7, Pl.’s Hospital Records: 7/5/08, at PID# 672.) Moore was relieved by
officer David Peralta at 11:00 p.m. on June 5th and told Peralta to “be prepared for a no
restraint order.” (R. 93, Pl.’s Resp. to Def.’s Statement of Undisputed Facts, at PID#
1725.)

         Shortly after the shift change, Peralta removed Plaintiff’s restraints. According
to hospital records, when the shackles were removed, Plaintiff had only dilated to
3 centimeters (“cm”). Plaintiff did not become dilated to 4 cm, a point that Defendant
contends is medically relevant, until 11:45 p.m. It was around this time that Plaintiff
also first requested pain medication, which she received in the form of an epidural.
Plaintiff gave birth without any complications at approximately 1:00 a.m on July 6,
2008—roughly two hours after Peralta removed her shackles. Plaintiff remained
unshackled until shortly before Peralta’s shift ended at 7:00 a.m., when he re-restrained
Plaintiff to the bed at one of her ankles. Plaintiff was never handcuffed postpartum.

         At the time of Plaintiff’s discharge from the Hospital, Defendant did not allow
Plaintiff to take the breast pump that the Hospital staff had provided her. Defendant
justified this based on safety concerns, and that under its policy, it did not consider a
breast pump to be a “critical medical device,” which would have allowed Plaintiff to take
it back to the jail.

         In March 2009, Plaintiff filed suit in the United States District Court for the
Middle District of Tennessee asserting various claims against Defendant.2 Following
discovery, Plaintiff and Defendant cross-moved for summary judgment. On April 27,
2011, the district court granted Plaintiff’s partial summary judgment motion on the basis
that Defendant was deliberately indifferent to Plaintiff’s medical needs by shackling her
while she was in labor and postpartum and denying her a breast pump on her release
from the Hospital. See generally Villegas v. Metro. Gov’t of Nashville & Davison Cnty.,


         2
             Other defendants were named in the suit as well but they are not parties to this appeal.
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                            Page 5


789 F. Supp. 2d 895 (M.D. Tenn. 2011). The case proceeded to a trial on damages, and
after a three-day trial, the jury awarded Plaintiff $200,000. Defendant timely appealed,
invoking this Court’s jurisdiction under 28 U.S.C. § 1291.

                                      DISCUSSION

I.       Deliberate Indifference

         Plaintiff raises two claims alleging that Defendant violated her rights. First, she
claims that by shackling her while she was in labor and postpartum, in the manner it did,
Defendant was deliberately indifferent to her need to be unrestrained during this time.
Second, Plaintiff claims that by denying her a breast pump, Defendant was deliberately
indifferent to her medical needs. The district court granted Plaintiff summary judgment
on both claims.

         A.     Standard of Review

         We review a district court’s grant of summary judgment de novo, Ventas, Inc. v.
HCP, Inc., 647 F.3d 291, 324 (6th Cir. 2011), applying the same standards as the district
court. Natron Corp. v. STMicroelecs., Inc., 305 F.3d 397, 403 (6th Cir. 2002).
Summary judgment is appropriate “if the if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, ‘show that there is
no genuine issue as to any material fact’” such that “‘the movant is entitled to a
judgment as a matter of law.’” Ventas, 647 F.3d at 324 (quoting Fed. R. Civ. P. 56(a)).
“A genuine issue of material fact exists when there are ‘disputes over facts that might
affect the outcome of the suit.’” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465
(6th Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). In
reviewing a summary judgment decision, this Court views the facts and all inferences
to be drawn from the facts in the light most favorable to the party against whom
summary judgment was entered.         Bell v. United States, 355 F.3d 387, 392 (6th Cir.
2004).
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                            Page 6


       B.      General Principles

       “The Eighth Amendment prohibition on cruel and unusual punishment protects
prisoners from the ‘unnecessary and wanton infliction of pain.’” Baker v. Goodrich,
649 F.3d 428, 434 (6th Cir. 2011) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).
Pretrial detainee claims, though they sound in the Due Process Clause of the Fourteenth
Amendment rather than the Eighth Amendment, City of Revere v. Mass. Gen. Hosp.,
463 U.S. 239, 244 (1983), are analyzed under the same rubric as Eighth Amendment
claims brought by prisoners. See Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir.
1985) (citing Bell v. Wolfish, 441 U.S. 520, 545 (1979)). Fundamentally, the “‘concept
underlying the Eighth Amendment . . . is nothing less than the dignity of
[hu]man[kind].’” Hope v. Pelzer, 536 U.S. 730, 738 (2002) (quoting Trop v. Dulles,
356 U.S. 86, 100 (1958)).

       Proving an Eighth Amendment claim requires that the plaintiff make a showing
of deliberate indifference. Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008) (citing
Farmer v. Brennan, 511 U.S. 825, 835 (1994)); see also Estelle v. Gamble, 429 U.S. 97
(1976). Deliberate indifference has two components to it: objective and subjective.
Harrison, 539 F.3d at 518. The objective component first demands a showing that the
detainee faced a substantial risk of serious harm. Id. But the objective component is not
met by proof of such a substantial risk of serious harm alone. The objective component
further “requires a court to assess whether society considers the risk that the prisoner
complains of to be so grave that it violates contemporary standards of decency”—that
is, it “is not one that today’s society chooses to tolerate.” Helling v. McKinney, 509 U.S.
25, 36 (1993). Therefore, the objective component of deliberate indifference is met upon
a showing that a detainee faced a substantial risk of serious harm and that such a risk is
one that society chooses not to tolerate.

       As to the subjective component, a plaintiff must show that the defendant had “a
sufficiently culpable state of mind.” Harrison, 539 F.3d at 518 (internal quotation marks
omitted). This state of mind is shown “where ‘the official knows of and disregards’” the
substantial risk of serious harm facing the detainee. Id. (quoting Farmer, 511 U.S. at
No. 11-6031           Villegas v. Metro. Gov’t of Nashville                           Page 7


837). That is, “the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. Direct evidence about a defendant’s knowledge
is not necessary, but rather, the knowledge aspect of the subjective component can be
inferred from the obviousness of the harm stemming from the risk. See Hope, 536 U.S.
at 738.

          C.     Shackling Claim

          Plaintiff predicates her first deliberate indifference claim on her being shackled
during labor and postpartum recovery. In bringing such a claim, Plaintiff finds herself
in the recent “burgeoning movement to end the practice of shackling pregnant women
prisoners, particularly during labor and delivery.”             See Elizabeth Alexander,
Unshackling Shawanna: The Battle Over Chaining Women Prisoners During Labor and
Delivery, 32 U. Ark. Little Rock L. Rev. 435, 436 (2010). Though the push to end the
practice is fairly new, sadly, it is a practice that has been around for at least a century.
See generally Priscilla A. Ocen, Punishing Pregnancy: Race, Incarceration, and the
Shackling of Pregnant Prisoners, 100 Cal. L. Rev. 1239 (2012). In spite of this history,
the law on the shackling of pregnant women is underdeveloped, and this Court has not
previously decided a deliberate indifference claim based on the practice. Therefore, we
must at the outset determine a framework under which to analyze such a claim.

                 1.      Framework

          In dealing with deliberate indifference claims in the past, this Court has
enumerated some specific types of claims for factual scenarios that frequently arise.
These types include, but are not limited to, conditions-of-confinement, excessive-force,
and medical-needs. See, e.g., Barker v. Goodrich, 649 F.3d 428, 434 (6th Cir. 2011)
(conditions-of-confinement, excessive-force); Harrison, 539 F.3d at 518 (medical-
needs). The district court as well as the parties in their briefing discuss this as a medical-
needs claim, Villegas, 789 F. Supp. 2d at 911–12, but as we explain below, the nature
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                              Page 8


of Plaintiff’s claim does not quite square with our medical-needs jurisprudence nor our
other refinements of the general deliberate indifference principles.

        A typical medical-needs claim deals with a deprivation of medical care like the
one at issue in Blackmore v. Kalamazoo County, 390 F.3d 890 (6th Cir. 2004). In that
case, a detainee requested medical care after experiencing over twenty-four hours of
“sharp” and “extreme” pain in his lower abdomen. Id. at 894 (internal quotation marks
omitted). No care was given to the detainee, despite multiple further complaints, until
two days after the detainee’s first complaint. Id. After three days of pain, a jail nurse
diagnosed the plaintiff-detainee with appendicitis. Id.

        Another typical medical-needs claim involves the interference with a prescribed
treatment plan. A good example came to this Court in Byrd v. Wilson, 701 F.2d 592
(6th Cir. 1983) (per curiam). In Byrd, a prisoner complained of stomach pain. Id. at
594. After being treated at an outside hospital, the prisoner “was diagnosed as having
post-hepatitic type cirrhosis of the liver for which medication and a low-sodium,
high-protein diet were prescribed.” Id. Upon return to the prison, however, two days
elapsed before he was able “to get his medicine and his diet.” Id.

        In light of those common factual scenarios, this Court has stated that the
objective component of deliberate indifference in a medical-needs case is met where a
plaintiff produces evidence of a “serious medical need.” Blackmore v. Kalamazoo Cnty.,
390 F.3d 890, 896 (6th Cir. 2004). We have further defined a serious medical need as
either “‘one that has been diagnosed by a physician as mandating treatment or one that
is so obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.’” Harrison, 539 F.3d at 518 (quoting Blackmore, 390 F.3d at 897). The
problem with viewing a shackling claim, like Plaintiff’s, solely as a medical-needs claim
is that it does not quite square with either of the typical factual scenarios or the definition
of “serious medical need” from Harrison and Blackmore. 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 Plaintiff’s risk of medical
complications. We should hasten to add that there may be circumstances where
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                          Page 9


shackling could interfere with medical treatment—where, for example, the shackles are
not removed so that the medical treatment may proceed unimpeded; however, such were
not the circumstances in this case.

       This problem led one court to analyze the shackling claim it faced as a
conditions-of-confinement claim. See Women Prisoners of D.C. Dep’t of Corr. v. Dist.
of Columbia, 877 F. Supp. 634, 668–69 (D.D.C. 1994), modified in part on other
grounds, 899 F. Supp. 659 (1995), vacated in part and remanded on other grounds,
93 F.3d 910 (D.C. Cir. 1996)). Under our case law, the objective component of a
conditions-of-confinement claim is proven where the detainee or prisoner is denied “the
minimal civilized measure of life’s necessities.” Barker, 649 F.3d at 434 (internal
quotation marks omitted). This includes deprivations of “adequate food, clothing,
shelter, [medical care, and safety].” Farmer, 511 U.S. at 832. A typical conditions-of-
confinement case is Spencer v. Bouchard, 449 F.3d 721 (6th Cir. 2006), abrogated on
other grounds by Jones v. Bock, 549 U.S. 199 (2007), where the prisoner complained of
being held in an unbearably cold and leaky cell. Id. at 728–29. While a shackling claim
does in some respects resemble some of our conditions-of-confinement cases, see, e.g.,
Barker, 649 F.3d at 434 (analyzing the use of handcuffs on a mentally ill prisoner under
a conditions-of-confinement, as well as excessive-force, rubric), the nature of the
medical proof offered by Plaintiff is different than we have previously addressed in the
conditions-of-confinement context.

       Similarly, we believe that the excessive-force type of claim is also not well
adapted for analysis of Plaintiff’s claim. The inquiry in excessive-force cases is about
“‘whether force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm,’” a formulation that does not harmonize with
the way Plaintiff has presented her claim. Id. (quoting Hudson v. McMillian, 503 U.S.
1, 7 (1992)). In sum, it seems to us that none of the refinements we have made to the
general deliberate indifference principles in order to more easily analyze common factual
scenarios are particularly well-suited to the theory and proof offered by Plaintiff.
No. 11-6031             Villegas v. Metro. Gov’t of Nashville                                       Page 10


         The Eighth Circuit in Nelson v. Correctional Medical Services, 583 F.3d 522
(8th Cir. 2009) (en banc), seems to have similarly recognized the crossover nature of a
pregnant shackling claim. In dealing with such a claim the Eighth Circuit identified the
“relevant questions” as: “(1) whether [the plaintiff] had a serious medical need or
whether a substantial risk to her health or safety existed, and (2) whether [the official]
had knowledge of such serious medical need or substantial risk to [the plaintiff’s] health
or safety but nevertheless disregarded it.” Id. at 529. This formulation used by the
Nelson court combines both medical-needs language (“serious medical need”) as well
as language that points to conditions-of-confinement (“substantial risk to health or
safety”). In light of this language, rather than attempt to pigeonhole Plaintiff’s shackling
claim into a more specific subcategory of deliberate indifference claims, we think it best
to analyze her claim under the general deliberate indifference principles.3 See Wilson
v. Seiter, 501 U.S. 294, 303 (1991) (“Whether one characterizes the treatment received
by the prisoner as inhumane conditions of confinement, failure to attend to his medical
needs, or a combination of both, it is appropriate to apply the deliberate indifference
standard articulated in Estelle.” (alteration and internal quotation marks omitted)).

         Consistent with the general principles discussed above, we analyze Plaintiff’s
claim in two steps, addressing first the objective component and then the subjective one.
Harrison, 539 F.3d at 518. On the objective component, we ask whether shackling
pregnant detainees in the manner and under the circumstances in which Plaintiff was
shackled creates a substantial risk of serious harm that society chooses not to tolerate.
See Helling, 509 U.S. at 36. On the subjective component, the inquiry is whether the


         3
            We note that while Nelson is informative with respect to the appropriate framework to apply,
the majority would not go as far as the dissent in making Nelson dispositive of this case. See Dissent at
25–27. There are two key distinctions between this case and Nelson that are relevant. First, the factual
and procedural posture of Nelson was different than the one we face in the instant case. Nelson came to
the Eighth Circuit on a grant of qualified immunity, Nelson, 583 F.3d at 525; therefore, all facts were
viewed in the light most favorable to the detainee. Id. at 530. In the instant case, we must instead give
the officers, as the non-moving party, the benefit of viewing their facts in the more favorable light. Bell,
355 F.3d at 392. Second, Nelson did not involve a potential flight risk. Nelson, 583 F.3d at 531. The facts
of Nelson are therefore quite different than the facts of this case where Plaintiff had an immigration
detainer placed on her due to her previous removal from the country. See infra n.5. Finally, it is worth
pointing out that the Nelson court did not, as the district court did in this case, find that the detainee was
entitled to judgment as a matter of law. Instead, the Eighth Circuit concluded that summary judgment was
not appropriate at that time. See id. at 534. Considering these differences, it becomes clear that the law
is not decidedly one-sided in Plaintiff’s favor as the dissent purports it to be.
No. 11-6031           Villegas v. Metro. Gov’t of Nashville                       Page 11


officers were aware and understood (or should have been aware and understood) that
they were exposing Plaintiff to a substantial risk of serious harm. Farmer, 511 U.S. at
837.

                 2.      Analysis

                         a.      Objective Component

       In attempting to prove the objective component of her shackling claim, Plaintiff
points us to prior pregnancy shackling cases, like Nelson, as well as statements from
notable public health organizations. Turning first to the case law, each of the three
courts to deal with a deliberate indifference shackling claim found the practice of
shackling women in labor to be violative of contemporary standards of decency.

       In the 1994 Women Prisoners case, the District Court for the District of
Columbia addressed the claim of a class of pregnant women prisoners that a prison
unconstitutionally shackled them “in the third trimester of pregnancy and immediately
after delivery.” 877 F. Supp. at 668. Following a bench trial, the court concluded that
the prison’s shackling practice “pose[d] a risk so serious that it violates contemporary
standards of decency.” Id. In so doing, the court stated that it understood that prisons
“may need to shackle a woman prisoner who has a history of assaultive behavior or
escapes. In general, however, the physical limitations of a woman in the third trimester
of pregnancy and the pain involved in delivery make complete shackling redundant and
unacceptable in light of the risk of injury to a woman and baby.” Id.

       Next, in 2009, the en banc Eighth Circuit determined that summary judgment was
inappropriately granted to a prison where a pregnant woman was shackled “well into the
final stage of labor” (7–8 cm dilated). Nelson, 583 F.3d at 525–27 & n.1. Specifically,
the Nelson court found that there were factual disputes that precluded summary
judgment but held that “absent clear evidence that she is a security or flight risk,” a
prisoner’s “protections from being shackled during labor had . . . been clearly established
by decisions of the Supreme Court and the lower federal courts before September 2003.”
Id. at 533–34.
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                           Page 12


         Similarly, in Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010),
a district court held that fact issues precluded summary judgment, id. at 1220–21, where
a prisoner was restrained until “just prior to” her “emergency cesarean” and was re-
restrained “right after surgery,” id. at 1214. Before doing so, the Brawley court
concluded that “[c]ommon sense, and the [department of corrections’] own policy, tells
us that it is not good practice to shackle women to a hospital bed while they are in
labor,” id. at 1219, and moreover, that “[p]laintiff has made a sufficient showing that by
April of 2007[,] shackling inmates while they are in labor was clearly established as a
violation of the Eighth Amendment’s prohibition against cruel and unusual punishment,”
id. at 1221.

         All of these courts found that shackling the pregnant women under the
circumstances of their respective cases violated the Eighth Amendment. In addition to
these analogous cases, as the Eighth Amendment “‘must draw its meaning from the
evolving standards of decency that mark the progress of a maturing society,’ . . . an
assessment of contemporary values concerning the infliction of a challenged sanction
is relevant.” Gregg v. Georgia, 428 U.S. 153, 173 (1976) (quoting Trop, 356 U.S. at
101).    In this vein, Plaintiff has adduced evidence from the American Medical
Association, the American College of Obstetricians and Gynecologists, the United
Nations, and Amnesty International decrying the practice of shackling pregnant women,
especially while in labor.

         In its Standard Minimum Rules for the Treatment of Prisoners, the United
Nations stated that restraints including handcuffs and leg irons should only be used “[a]s
a precaution against escape,” “[o]n medical grounds by direction of the medical officer,”
or “if other methods of control fail, in order to prevent a prisoner from injuring
himself or others or from damaging property.” E.S.C. Res. 663 C (XXIV) (July
31,     1957),   2076   (LXII)   (May    13,   1977),       at   Rule   33,   available   at
http://www2.ohchr.org/english/law/treatmentprisoners.htm.

         With respect to pregnant detainees, the American Medical Association has passed
a resolution that provides:
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                          Page 13


       No restraints of any kind shall be used on an inmate who is in labor,
       delivering her baby or recuperating from the delivery unless there are
       compelling grounds to believe that the inmate presents:
               An immediate and serious threat of harm to herself, staff or others; or
               A substantial flight risk and cannot be reasonably contained by other
               means.

Am. Med. Ass’n, “Shackling of Pregnant Women in Labor,” Policy H-420.957
(June 2010), available at https://ssl3.ama-assn.org/apps/ecomm/PolicyFinderForm.pl?
site=www.ama-assn.org&uri=%2fresources%2fdoc%2fPolicyFinder%2fpolicyfiles%
2fHnE%2fH-420.957.htm.

       Also with respect to pregnant detainees, the American College of Obstetricians
and Gynecologists found:

       Physical restraints have interfered with the ability of physicians to safely
       practice medicine by reducing their ability to assess and evaluate the
       physical condition of the mother and the fetus, and have similarly made
       the labor and delivery process more difficult than it needs to be; thus,
       overall putting the health and lives of the women and unborn children at
       risk. . . .
       The practice of shackling an incarcerated woman in labor may not only
       compromise her health care but is demeaning and unnecessary. . . .
       Testimonials from incarcerated women who went through labor with
       shackles confirm the emotional distress and the physical pain caused by
       the restraints. Women describe the inability to move to allay the pains
       of labor, the bruising caused by chain belts across the abdomen, and the
       deeply felt loss of dignity.

Letter from Ralph Hale, Exec. Dir., Am. Coll. of Obstetricians & Gynecologists, to
Malika Saada Saar, Exec. Dir., The Rebecca Project for Human Rights (Jun. 12, 2007).

       Finally, Amnesty International has formulated a policy directive that states, in
relevant part:

       Routine use of restraints on pregnant women is cruel, inhumane and
       degrading treatment, and given medical and other factors impeding
       pregnant or birthing women from attempting escape or becoming violent,
       the presumption must be that no restraints should be applied. . . .
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                          Page 14


       All Departments of Corrections should have an explicit policy dealing
       with the use of restraints on pregnant women. The following principles
       should be incorporated into such a policy:
              Leg irons, shackles, belly chains or handcuffs behind the body may not
              be used at any time during pregnancy.
              For pregnant women in the third trimester no restraints may be applied,
              including during transportation.
              Under no circumstances may restraints of any kind may [(sic)] be used
              on a woman in labor or while she is giving birth.
              ...
              No restraints should be applied while a woman remains in the hospital
              during recovery . . . .

Amnesty Int’l USA, “Use of Restraints on Pregnant Women in the USA: Policy
Guidelines” (2009). However, as the United Nations and American Medical Association
recognize, Amnesty International’s policy also recognizes that there may be “rare
instances” that deviations may be warranted—specifically, “where there are serious and
imminent grounds to believe that a woman may attempt to harm herself or others or
presents a credible risk of escape that cannot be contained through other methods.” Id.

       Two things are clear from Plaintiff’s evidence on the objective component. First,
the shackling of pregnant detainees while in labor offends contemporary standards of
human decency such that the practice violates the Eighth Amendment’s prohibition
against the “unnecessary and wanton infliction of pain”—i.e., it poses a substantial risk
of serious harm. See Gamble, 429 U.S. at 104. 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 Amendment.

       Second, it is equally clear, however, from both courts and commentators that the
right to be free from shackling during labor is not unqualified. The sources establishing
the potential violation also recognize that in certain circumstances, despite the fact that
the woman is in labor, shackles may nonetheless be tolerated by society. See Helling,
509 U.S. at 36. The United Nations recognizes potential exceptions where the pregnant
detainee presents a danger to herself or others and where the detainee poses a flight risk.
E.S.C. Res. 663 C (XXIV), 2076 (LXII), at Rule 33. Similarly, the American Medical
No. 11-6031             Villegas v. Metro. Gov’t of Nashville                                         Page 15


Association would permit the shackling of a pregnant detainee where she was shown to
be either “[a]n immediate and serious threat of harm to herself, staff or others; or [a]
substantial flight risk and cannot be reasonably contained by other means.” Am. Med.
Ass’n, “Shackling of Pregnant Women in Labor,” Policy H-420.957. Finally, though
Amnesty International couches its carve-outs in terms of being “rare,” it nonetheless
would allow restraints “where there are serious and imminent grounds to believe that a
woman may attempt to harm herself or others or presents a credible risk of escape that
cannot be contained through other methods.” Amnesty Int’l USA, “Use of Restraints on
Pregnant Women in the USA: Policy Guidelines.”

         These same caveats are found in the cases applying the Eighth Amendment to
shackled pregnant detainees. The court in the Women Prisoners case left the door open
for a situation where a prison “may need to shackle a woman prisoner who has a history
of assaultive behavior or escapes.” 877 F. Supp. at 668. Additionally, Nelson stated that
Eighth Amendment would not afford a detainee a claim where a jail put forth “clear
evidence that she is a security or flight risk.”4 583 F.3d at 534. Therefore, we must
consider whether there is evidence in the record of the instant case that supports
Defendant’s claim that Plaintiff was a flight risk.

         Defendant concedes that Plaintiff was restrained because of her status as a
medium-security inmate, a status she obtained by virtue of the federal immigration
check, which established that she was illegally present in this country, after having been
previously removed.5 As Defendant’s expert Richard Stalder, former president of both
the American Correctional Association and the Association of State Correctional


         4
           The court in Nelson explicitly noted that the plaintiff in that case “did not present a flight risk
or other security concern.” 583 F.3d at 534.
         5
           The dissent focuses its attention on the fact that Defendants failed, in its words, to “individually
assess[ Plaintiff’s] flight risk or risk of harm to herself or others” and criticizes Defendants’ policy as being
“automatic.” Dissent at 26–27. But the relevant question is not about the process by which Defendants
came to the determination that Plaintiff posed a flight risk. Rather, the relevant question turns on whether,
at this stage in the litigation, there is a factual dispute regarding the nature of the flight risk posed by
Plaintiff. It is that consideration which bears upon whether society would tolerate Defendants’ conduct
in this case. See supra pp. 14–15 (discussing the qualified nature of the right to be free from shackling
during labor). Obviously, this consideration has to be viewed in relation to Plaintiff’s previous record; the
immigration detainer was only issued for Plaintiff after she was determined, based on Immigration and
Customs Enforcement standards, to pose a flight risk.
No. 11-6031             Villegas v. Metro. Gov’t of Nashville                                       Page 16


Administrators, declared, Plaintiff’s “security restrictions” (including the restraints) were
“consistent with the custody level assignment”: medium-security. (R. 79, at PID# 678.)
Additionally, with respect to Plaintiff, “the stress of pending deportation could easily
promote what otherwise may be uncharacteristic unlawful behaviors, including flight
from custody and subsequent illegal activity.” (Id. at 679.) He added, “The relationship
between public safety, custody status, general security practices and restraint policy is
strong and justified.” (Id.) Finally, he opined that the jail’s policy was consistent with
the American Correctional Association Policy that mirrors the American
Medical Association resolution in light of Plaintiff’s “custody classification resulting
from multiple immigration and customs enforcement violations.” (Id.) To be sure, this
evidence shows that the jail’s classification procedures were followed in this case.
However, because of Plaintiff’s obvious, physical condition as a pregnant woman in
labor, a reasonable factfinder could nonetheless conclude that Plaintiff was not a flight
risk despite the jail’s conformity with its classification procedures. This potential
dispute renders summary judgment inappropriate.6 See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986).

                            b.        Subjective Component

         Turning to the subjective component, as stated above, the question is whether the
officers had knowledge of the substantial risk, recognized the serious harm that such a
risk could cause, and, nonetheless, disregarded it. Harrison, 539 F.3d at 518. On this
point, Plaintiff has produced testimony from both fact and expert witnesses in an attempt
to prove that Defendant had the knowledge to have “had a sufficiently culpable state of
mind.” See id. (internal quotation marks omitted).




         6
           The dissent somehow concludes that neither the undisputed evidence about Plaintiff’s illegal
status and prior removal nor the Defendants’ well-qualified expert’s opinion is sufficient to create a
material factual dispute. Dissent at 27–29. As did the district court, the dissent enmeshes itself in “the
weighing of the evidence.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“[T]he
weighing of the evidence . . . [is a] jury function[].”). We are not suggesting that Plaintiff cannot argue
that she was not a flight risk, but rather, that it would not be unreasonable for the jury to conclude on this
evidence that she was indeed a flight risk. See id. at 248 (“[S]ummary judgment will not lie if . . . evidence
is such that a reasonable jury could return a verdict for the nonmoving party.”).
No. 11-6031              Villegas v. Metro. Gov’t of Nashville                                          Page 17


          Factually, Plaintiff points first to the testimony of Barshaw who admitted to
thinking, “what if all of a sudden the baby started [and it] took more time to unrestrain
these restraints in the back of the ambulance.” (R. 86-1, at PID# 845.) This fairly
ambiguous statement is not, however, conclusive enough to show Defendant’s subjective
awareness as a matter of law. See Fed. R. Civ. P. 56(a).

          Next, Plaintiff attempts to establish that Defendant was subjectively aware of the
risks that the shackles posed by virtue of the fact that Hospital staff ordered the shackles
removed. Knowledge of such a “no restraint order” would, at minimum, evince
knowledge of a substantial risk of serious harm. Cf. Gamble, 429 U.S. at 104–05
(Deliberate indifference can be manifested through “intentionally interfering with the
treatment once prescribed.”) Plaintiff’s evidence on this front, however, falls short.
Although it is clear from the record that a no restraint order was placed in Plaintiff’s file
at 11:20 p.m., no testimony reveals that Defendant or its officers ever knew about the
existence of this order. Moore’s testimony only discloses her knowledge that Hospital
staff were contemplating a no restraint order, not that one was ever disclosed to her.
Moore states that she told Peralta that she had been told that Hospital staff “were trying
to get a no restraint order but no one had specifically talked to me about it.” (R. 86-6,
Dep. of Brandi Moore, at PID# 1091.) For his part, Peralta stated that Moore had “said
that there was going to be a no restraint order” but does not mention whether he ever saw
it. (R. 86-6, Dep. of David Peralta at PID# 1109.) At worst, this evidence confirms
Defendant’s contention that it never knew about a no restraint order; at best, it shows the
existence of a factual dispute concerning Defendant’s officers’ knowledge.7

          7
           The dissent accuses the majority of disregarding evidence and testimony favorable to Plaintiff,
see Dissent at 28; this is simply incorrect. What is required on the subjective component is that the
defendant have knowledge of the risk and disregards it. Harrison, 539 F.3d at 518. The testimony cited
by the district court, and relied on by the dissent, suggests that Moore may have “overheard” discussion
between the nurses, (R. 86-6, Moore Dep., at PID# 1095; see also id. at 1091), and the doctors about a
no restraint order, and one nurse purportedly stated that the officers “shouldn’t put leg irons on [Plaintiff].”
(Id. at 1097.) Nowhere in this testimony does it show either that a course of treatment was settled upon,
as in Byrd, or that Moore was informed about the risk associated with the leg irons.
          The dissent also seems to fault the majority for failing to take account of the hearsay testimony
from Davidson County Sheriff’s investigator Michelle Ray. In her deposition, Ray stated that she had in
her notes, with respect to an after-the-fact conversation that she had with a nurse, that the nurse told her
that the nurse had “tr[ied] to explain to [one of Defendants’ officers] that after . . . birth, there’s a high risk
of clotting.” (R. 86-5, Dep. of Michelle Ray, at PID# 1064.) But it was inappropriate for the district court
to have considered this evidence in the first place. Such rank hearsay cannot be relied upon by a court
when ruling on a summary judgment motion. Hoover v. Walsh, 682 F.3d 481, 491 n.34 (6th Cir. 2012).
No. 11-6031            Villegas v. Metro. Gov’t of Nashville                                    Page 18


         Both sides also presented expert testimony as to the specific harm faced by
Plaintiff and the potential obviousness of this harm to Defendant’s officers.8 See Hope,
536 U.S. at 738 (recognizing that the obviousness of the harm can be used to infer
subjective knowledge of it). Plaintiff offered two different witnesses: a gynecologist,
Dr. Sandra Torrente, to opine on the physical risks associated with shackling, and a
psychiatrist, Dr. Jill DeBona, to opine on the psychological risks. Defendant also
presented a gynecologist, Dr. Bennett Spetalnick.

         Spetalnick, who is the head of Obstetrics and Gynecology at Vanderbilt
University Medical Center, opined that “[a]lthough the risk of a DVT (deep venous
thrombosis) and PE (pulmonary embolism) is increased with pregnancy and postpartum,
my medical opinion, based on the literature and personal experience, is that these risks
are not enhanced by a leg restraint and/or handcuffs.” (R. 81, Decl. of Bennett
Spetalnick, at PID# 700.) Further, “[a]mbulation is encouraged in the peripartum period,
but the amount of ambulation recommended to prevent a DVT is not prevented by leg
restraints as they were used in [Plaintiff’s] situation.” (Id.) Spetalnick explained that
“[a]lthough labor is very painful, it is medically anticipated that the pain experienced in
latent labor is less severe than that experienced in active labor [(defined as dilation to
4 cm)]. The facts of the case indicate that . . . she was in latent labor until at least 23:30
. . . [and] that all of her restraints were removed prior to active labor.” (Id. at 701–02.)
In sum, as to shackling, Spetalnick concluded: “There is no significant risk to the patient
with a leg restrained up to the time of delivery and immediately post partum and none
in this case with no leg restrained for 7 hrs—2 hrs prior and for 5 hours after delivery.”
(Id. at 700–01.)

         Torrente, an assistant professor of Obstetrics and Gynecology at Meharry
Medical College, on the other hand, stated: “Placing a pregnant woman in leg irons or
shackles increases her risk of developing a potentially life-threatening blood clot. This
risk is increased and present throughout a woman’s entire pregnancy; however, it is at


         8
          Unfortunately, neither party has cited to any authoritative medical literature about the risk of
shackling pregnant women in labor. What has been cited has mostly consisted of conclusory opinions.
No. 11-6031            Villegas v. Metro. Gov’t of Nashville                                     Page 19


the greatest risk post-partum,” and therefore women should be “ambulatory . . . as often
as possible” during this period. (R. 94-4, Decl. of Sandra Torrente, at PID# 1856.)
Additionally, Torrente detailed the importance of being unrestrained due to “potential
occurrence of umbilical cord prolapse” and “the increased risk in falling due to a
pregnant woman’s impaired balance.”                    (Id.)    Finally, restraints would create
“discomfort” and would not allow the woman to “safely handle a newborn child.” (Id.
at 1857.) Torrente further opined that Plaintiff was shackled during “active labor” and
because she had previously given birth, “the risk created by shackling her during labor
are even greater because of her potential to begin giving birth much sooner following the
onset of labor than the average woman in labor.” (Id. at 1857–58.) Specifically in
response to Spetalnick, she disagreed “that there was no significant risk to [Plaintiff]
because she happened to be unshackled two hours before she delivered[, and] . . .
Spetalnick is incorrect that [Defendant’s] conduct did not substantially elevate
[Plaintiff’s] risk of DVT and PE.” (Id. at 1857.)

         Lastly, psychiatrist DeBona, in detailing the various “episode[s] of shackling”
that Plaintiff experienced, described the psychological effects of the shackling on
Plaintiff:

         While in the ambulance, [Plaintiff] had to face the terror that her baby
         might die. She did not realize that an officer was in the ambulance. She
         believed that there was no one to remove the shackles. . . . [S]he feared
         that her son would not be able to be delivered. . . . Her trust in people had
         been eroded by her treatment, especially the shackling . . . .

(R. 134-1, Rept. of Jill DeBona, at PID# 3052–54.) In her opinion, DeBona diagnosed
Plaintiff with post traumatic stress disorder (PTSD) and major depressive disorder,
among other things. Comparing the testimony of Spetalnick, Torrente, and DeBona
indicates a further factual dispute about the specific risk of harm to Plaintiff and the
obviousness to the officers of harm to Plaintiff.9

         9
          Despite the clear disagreement among the well-qualified experts on each side, the dissent sees
no material factual dispute resulting from such fundamental disagreement. Dissent at 28–29. To be sure,
Torrente and DeBona produced lengthier analyses of the risks that Plaintiff faced, but the specific and
contradictory analysis of Spetalnick reflects a core disagreement about the material facts of the risks and
obviousness thereof in Plaintiff’s case. It may be that the jury will choose to credit the opinions of
No. 11-6031            Villegas v. Metro. Gov’t of Nashville                                       Page 20


         As is the case with many claims of deliberate indifference, we find that there are
fact issues that preclude the grant of summary judgment to Plaintiff. See, e.g., Nelson,
583 F.3d at 534 (“The record suggests that a factfinder could determine that Turensky
entirely disregarded her duty to balance these competing concerns.”). The “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts” necessary to resolve Plaintiff’s claim “are jury functions, not those of a
judge . . . on a motion for summary judgment.” Anderson, 477 U.S. at 255. The jury’s
responsibility for weighing conflicting evidence is especially crucial where the ultimate
issue is one that draws upon community values. See Spaziano v. Florida, 468 U.S. 447,
487 (1984) (Stevens, J., concurring in part and dissenting in part) (Juries “reflect more
accurately the composition and experiences of the community as a whole, and inevitably
make decisions based on community values more reliably.”); see also Galloway v.
United States, 319 U.S. 372, 397 (1943) (Black, J., dissenting) (“The founders of our
government thought that trial of fact by juries rather than by judges was an essential
bulwark of civil liberty.”). Moreover, because much of the disputed proof in the record
comes from declarations, there has been no opportunity for either side to test that proof
through cross-examination. See Crawford v. Washington, 541 U.S. 36, 46 (2004)
(discussing the “vital importance” of cross-examination).

         In light of the material factual disputes surrounding whether Plaintiff was shown
to be a flight risk, whether Defendant’s officers had any knowledge about a no restraint
order, and the conflicting expert testimony about the ill effects of Plaintiff’s shackling,
we conclude that the district court improperly granted summary judgment to Plaintiff on
her shackling claim. On remand, a jury will need to determine whether Plaintiff was a
flight risk in her condition and whether Defendant had knowledge of the substantial risk,
recognized the serious harm that such a risk could cause, and, nonetheless, disregarded
it, Harrison, 539 F.3d at 518, recognizing that such knowledge may be established



Torrente and DeBona over Spetalnick, but once again, that is not our role to determine at the summary
judgment phase. See Phillips v. Cohen, 400 F.3d 388, 399 (6th Cir. 2005) (“[C]ompeting expert opinions
present the classic battle of the experts and it is up to a jury to evaluate what weight and credibility each
expert opinion deserves.” (alterations and internal quotation marks omitted)); see also Anderson, 477 U.S.
at 255.
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                          Page 21


through the obviousness of the risk. Farmer, 511 U.S. at 842 (“[A] factfinder may
conclude that a prison official knew of a substantial risk from the very fact that the risk
was obvious.”); see also Nelson, 583 F.3d at 534 (“‘[T]he obvious cruelty inherent in
this practice [may] have provided [the defendant’s officers] with some notice that [their]
alleged conduct violated [the plaintiff’s] constitutional protection against cruel and
unusual punishment.’” (quoting Hope, 536 U.S. at 745)).

       D.      Denial of Breast Pump Claim

       Plaintiff’s second deliberate indifference claim is premised on Defendant’s
denying her a breast pump to allow her to express her breast milk postpartum.
Defendant, based on its policy, refused to allow Plaintiff to take the breast pump given
to her by Hospital staff back to the jail with her. This is because under Defendant’s
policy, a breast pump was not considered a “critical medical device.” Inasmuch as this
is a typical interference with treatment claim, Plaintiff’s breast pump claim fits neatly
into the framework of our medical-needs jurisprudence.

       For a medical-needs claim, such as this, the objective component is satisfied by
showing the existence of a “serious medical need,” which we have defined as either
“‘one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.’” Harrison, 539 F.3d at 518 (quoting Blackmore, 390 F.3d at 897). As before,
a plaintiff can prove the subjective component by proving that the defendant had
knowledge of the substantial risk, recognized the serious harm that such a risk could
cause, and, nonetheless, disregarded it. Id. This knowledge can be inferred from the
obviousness of the harm. See Hope, 536 U.S. at 738.

       In granting summary judgment to Plaintiff on this claim, the district court relied
on our opinions in Byrd v. Wilson, 701 F.2d 592 (6th Cir. 1983), and Boretti v. Wiscomb,
930 F.2d 1150 (6th Cir. 1991), to conclude that the Hospital staff’s provision of the
breast pump amounted to the breast pump being prescribed (i.e., a diagnosed medical
need), and therefore Defendant was deliberately indifferent in refusing it to her.
Villegas, 789 F. Supp. 2d at 916–17. These cases are, however, distinguishable. In
No. 11-6031             Villegas v. Metro. Gov’t of Nashville                                        Page 22


Byrd, we found that a pro se prisoner-plaintiff had made out a non-frivolous claim where
after being “diagnosed as having post-hepatitic type cirrhosis of the liver for which
medication and a low-sodium, high-protein diet were prescribed,” two days elapsed
before the prisoner was able “to get his medicine and his diet.” 701 F.3d at 594–95
(emphasis added). In Boretti, a pro se prisoner-plaintiff had been treated for a gunshot
wound three weeks prior to coming to the jail and had been given a treatment plan,
which included daily changing of his bandages and daily provision of Motrin. 930 F.2d
at 1151. Despite the existence of the plan, plaintiff never received any pain medication
nor were his bandages changed. Id. at 1152. The Borretti court concluded (similar to
Byrd) that the plaintiff had adequately pleaded his deliberate indifference claim and that
factual disputes precluded summary judgment. Id. at 1155–56. In each of these cases,
it is clear that a medical professional formally mandated a treatment plan. In the instant
case, however, Plaintiff’s evidence shows little more than the fact that Hospital staff
handed her a breast pump as she was being discharged.

          Absent proof that the breast pump was prescribed, as is necessary under a
diagnosed medical-needs theory, Plaintiff must show that it was so obvious that even a
layperson would recognize the need to provide Plaintiff with a breast pump. See
Harrison, 539 F.3d at 518. Unlike her shackling claim, where Plaintiff pointed to
specific statements by outside organizations and testimony from Defendant’s officer,
Plaintiff on this claim has only pointed to the opinion testimony of Torrente and
DeBona, who both opined that a breast pump was necessary to allow Plaintiff to express
her milk and relieve her breast pain.                    Such testimony regarding the harmful
consequences of being denied the breast pump does not specifically speak to the
obviousness of the risk to Plaintiff. Therefore, Plaintiff has failed to produce sufficient
evidence to make out the objective component of her breast pump claim, and therefore,
the district court improperly granted summary judgment to Plaintiff on this claim as
well.10


          10
              In light of our conclusion that the district court erred in granting Plaintiff summary judgment
as to liability, we need not (and decline to) reach Defendant’s issue alleging errors in the trial dealing with
damages.
No. 11-6031          Villegas v. Metro. Gov’t of Nashville                             Page 23


II.     Reassignment

        Defendant has alleged that the district judge is biased against it and has requested
that we order the case reassigned to another judge upon remand. Section 455(a) of Title
28 of the United States Code states that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Although this
Court has the power, under 28 U.S.C. § 2106, to order the reassignment of a case on
remand, we have stated that “[r]eassignment . . . is an extraordinary power and should
be rarely invoked. Reassignments should be made infrequently and with the greatest
reluctance.” Solomon v. United States, 467 F.3d 928, 935 (6th Cir. 2006) (internal
quotation marks omitted). In evaluating a request for reassignment on remand, we look
at three factors: “(1) whether the original judge would reasonably be expected to have
substantial difficulty in putting out of his or her mind previously expressed views or
findings; (2) whether reassignment is advisable to preserve the appearance of justice; and
(3) whether reassignment would entail waste and duplication out of proportion to any
gain in preserving the appearance of fairness.” Id.

        All three of the factors militate against reassignment on remand. Defendant
primarily argues that Judge Haynes made comments that indicate his disdain for
Defendant’s legal positions and its counsel. The Supreme Court has made clear that
“judicial remarks during the course of a trial that are critical or disapproving of, or even
hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge . . . [unless] they display a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994);
see also Johns v. Holder, 678 F.3d 404, 408 (6th Cir. 2012) (“The judge’s treatment of
the evidence alone cannot support a claim of bias.”). The comments cited to us do not
display such extreme bias. Rather, they reflect that Judge Haynes, though at times
critical in his comments, was attempting to enforce the parameters that he established
for the trial. Moreover, Judge Haynes made a number of rulings favorable to Defendant.
Though he did not rule in favor of Defendant on some crucial decisions, including the
summary judgment decision that we are reversing today, that does not satisfactorily
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                         Page 24


demonstrate that Judge Haynes would not exercise fair judgment on remand. See Liteky,
510 U.S. at 555. Finally, the nature of this complex litigation with multiple experts and
significant time spent in discovery resolves the third factor, that of judicial economy,
against reassignment. Cf. Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 239 (6th
Cir. 2003) (refusing to reassign, in part, based on the “complex factual record” in the
case). Therefore, we decline to order reassignment of this case on remand.

                                   CONCLUSION

       For the reasons stated above, we REVERSE the district court’s grant of
summary judgment to Plaintiff and REMAND for further proceedings consistent with
this opinion.
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                          Page 25


                                 __________________

                                      DISSENT
                                 __________________

        HELENE N. WHITE, Circuit Judge, dissenting. I respectfully dissent. The
district court determined on the parties’ cross-motions for partial summary judgment that
shackling Villegas during labor and postpartum recovery absent any indication that she
was a flight risk or posed a risk of harm to herself or others, and denying her the breast
pump hospital staff provided her on discharge, constituted deliberate indifference to a
serious medical need. The material facts–the facts that might affect the determination
of Defendant’s liability–were not in dispute. R.119-1 at 23-24; PID 2612-13, quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–248 (1986).

        A prison official is deliberately indifferent if he knows of and disregards a
serious medical need or a substantial risk to an inmate’s health or safety. Farmer v.
Brennan, 511 U.S. 825, 834, 837 (1994). Deliberate indifference suits against prison
officials must satisfy both objective and subjective requirements. Id. at 837–39.

        Villegas established that shackling created an objectively substantial risk of
serious harm in two ways; by showing that her condition as a laboring and then lactating
woman 1) resulted in medically prescribed treatment and 2) was obvious to lay persons
as a serious medical need. See Harrison v. Ash, 539 F.3d 510, 518 (6th Cir. 2008);
See also Havard v. Wayne Cnty., 436 F. App’x 451, 454 (6th Cir. 2011) (“The birth of
a child always presents a risk of serious injury to both mother and child.”); Nelson v.
Corr. Med. Servs., 583 F.3d 522, 530 n.5 (8th Cir. 2009) (en banc) (“That labor is
inherently risky is well known . . . and the hazards associated with labor and childbirth
have entered the collective consciousness.”). “In 1994 [a federal district court in the
District of Columbia] . . . held defendant prison officials liable, explaining that a prison
official who shackles a woman in labor acts with ‘deliberate indifference . . . since the
risk of injury to women prisoners is obvious.’ . . . . Nelson’s protections from being
shackled during labor had thus been clearly established by decisions of the Supreme
Court and lower federal courts before September 2003.” Nelson, 583 F.3d at 532–33
No. 11-6031        Villegas v. Metro. Gov’t of Nashville                          Page 26


(quoting Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 877 F. Supp.
634, 668–69 (D.D.C. 1994), modified in part on other grounds, 899 F. Supp. 659
(D.D.C. 1995).

       The majority observes that Villegas’s right to be free from shackling during labor
must be balanced against Defendant’s penological interest, and concludes that a question
of material fact remained whether Villegas was a flight risk. I disagree.

       First, deliberate indifference to a prisoner’s serious medical need “can typically
be established or disproved without the necessity of balancing competing institutional
concerns for the safety of prison staff.” Nelson, 583 F.3d at 530, quoting Whitley v.
Albers, 475 U.S. 312, 320 (1986) (“The deliberate indifference standard articulated in
Estelle [v. Gamble, 429 U.S. 97, 105 (1976),] was appropriate in the context presented
in that case because the State’s responsibility to attend to the medical needs of prisoners
does not ordinarily clash with other equally important governmental responsibilities,”
however, in the face of a prison disturbance “prison officials must take into account the
very real threats the unrest presents to inmates and prison officials alike, in addition to
the possible harms to inmates against whom force might be used.”).

       Here, Defendant maintained that Villegas’s restraints were “consistent with” her
medium-security designation and that illegal immigrants in general pose a danger of
flight. But Villegas’s medium-security designation did not take into account her late-
term pregnancy or that she had gone into labor, nor was it based on any assessment of
flight risk or risk of harm—it was automatic because of the Immigration and Customs
Enforcement (ICE) detainer. Villegas was not being held for a crime of violence and
had not been convicted of any crime. She was not individually assessed for flight risk
or risk of harm to herself or others, and she had not engaged in any conduct evidencing
such. See Brawley v. Wash., 712 F. Supp. 2d 1208, 1219–20 (W.D. Wash. 2010)
(“[T]here is no evidence in the record which indicated that shackling Plaintiff was
justified by any legitimate penological concern. There is no evidence that Plaintiff was
dangerous to herself or others. There is no evidence that she posed a flight risk.”)
Neither the ICE detainer’s automatic designation of Villegas as “medium-security” nor
No. 11-6031             Villegas v. Metro. Gov’t of Nashville                                        Page 27


generalized evidence that illegal immigrants may pose a flight danger constitute “clear
evidence” that Villegas was a security or flight risk.

         Defendant’s asserted penological interest in shackling Villegas while she was
being transported to and then hospitalized, to maintain control over her in an unsecured
facility,1 suffers from another flaw. It is undisputed that at least one armed officer was
present in the ambulance, at least one armed officer was present in the hospital room or
outside the room at all times, and the maternity ward at Metro General Hospital is locked
down at all times, that is, a nurse must unlock the doors and authorize persons to enter
and exit. In order to flee or pose a threat, Villegas would have had to harm or elude
armed officer(s) and the nurse authorizing entry and exit from the maternity ward
charged with unlocking the doors.

         Finally, I note that even though Villegas went through labor and gave birth
without threat of escape or harm to anyone, Defendant’s officers shackled her legs
together postpartum while she walked, showered and used the toilet. This despite the
fact that before the birth, a physician had ordered in writing that the shackles be
removed. R. 86-17; PID 1609.

         In sum, Defendant made no showing, and the facts belied, that shackling Villegas
at any time was necessary, whether to effect their purported penological interest or
otherwise.

         Villegas satisfied the subjective component by demonstrating that Defendant’s
officers acted with deliberate indifference to her serious medical needs, i.e., knew of and
disregarded the substantial risk of harm posed by shackling her during labor and
postpartum. An Eighth Amendment claimant “need not show that a prison official acted
or failed to act believing that harm actually would befall an inmate; it is enough to that
the official acted or failed to act despite his knowledge of a substantial risk of serious



         1
             R. 117 at 11, 14; PID 2577, 2580/Def.’s Reply Mem. in Support of Summ. J. (asserting that
Villegas “was restrained because she was a medium-security inmate being taken to an unsecured
facility. . . . Plaintiff simply cannot establish that DCSO’s use of restraints in this case was not reasonably
related to a penological interest.”)
No. 11-6031          Villegas v. Metro. Gov’t of Nashville                          Page 28


harm.” Harrison, 539 F.3d at 518, quoting Farmer v. Brennan, 511 U.S. 825, 842
(1994).

          The district court’s opinion sets forth the evidence establishing that Defendant’s
officers were aware of the substantial medical risks posed by shackling women while in
labor and during postpartum recovery and disregarded it. See R. 119-1 at 6-7; PID 2596-
96/Mem. Op. The majority concludes that “no testimony reveals that Defendant or its
officers ever knew about the existence of [the no-restraint order]” and thus that a factual
dispute existed regarding Defendant’s officers’ knowledge of a substantial risk of serious
harm. Maj. Op. at 17. This determination erroneously presumes that Defendant’s
officers could know or become aware of the substantial medical risks shackling posed
to Villegas only by entry of a written no-restraint order in her hospital file and the
officers being “shown” the order. Even if this were the case, the record is clear that
before the no-restraint order was placed in Villegas’s file, hospital nursing staff had
asked the officers to remove Villegas’s shackles several times, had advised the officers
that a no-restraint order was coming, and had advised officers of the high risk of blood
clots after giving birth if the shackles were not removed.

          The majority also concludes that conflicting expert testimony about the ill effects
of Villegas’s shackling raised a material factual dispute. Maj. Op. at 20. I disagree.
Given the long-established law on shackling during labor and postpartum and the
undisputed facts, I agree with the district court that the declaration of defense expert Dr.
Spetalnick did not raise an issue of material fact. R. 119-1 at 34 n.9; PID 2624.

          Dr. Spetalnick opined that restraining Villegas did not enhance the medical risks
of deep venous thrombosis and pulmonary embolism or cause her excessive pain under
the circumstance that she was restrained while in latent labor, the restraints were
removed while she was in active labor, and remained off until hours after the delivery.
He opined that the amount of ambulation recommended to prevent deep venous
thrombosis “is not prevented by leg restraints as they were used” in Villegas’s case; that
although a leg restraint is a theoretical impediment in the case of an emergency, a
restraint would not prevent, significantly impede, or make less accurate the vaginal
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                           Page 29


exam; and that although leg restraints can carry bacteria, there was no evidence that the
use of restraints in this case created a significant infectious risk to Villegas.

        Villegas’s expert witness Dr. Torrente opined that shackling increased the risk
of injury to both Villegas and her unborn child, that Defendant’s officers subjected
Villegas to unnecessary pain and suffering by shackling her after her water broke, and
that Dr. Spetalnick’s claim that Villegas was only in latent labor while shackled did not
mean from a medical standpoint that Villegas was not in pain or that birth could not have
progressed very quickly. Among Dr. Torrente’s points unaddressed by Dr. Spetalnick
were that shackling a woman after her water has broken is extremely dangerous because
of a potential for umbilical cord prolapse, that once a woman’s membranes have
ruptured a cervical exam should be performed as soon as possible for potential umbilical
cord prolapse, that a proper cervical exam and monitoring cannot be conducted while
shackled, and that shackling may restrict or delay the ability to provide emergency
medical care; that medical personnel need constant unrestricted access to a woman in
labor for complications that can occur including a non-reassuring fetal heart tracing, for
which the patient needs to be able to move to her left lateral decubitus position to
increase blood flow to the baby; that a woman must be able to freely move and walk as
often as possible to reduce risk of blood clots; that restraining a woman in labor and
postpartum enhances the risk of injury to both woman and child because a woman
should have full range of movement of limbs and remain ambulatory because of pain;
that use of shackles during labor and postpartum is extremely unsanitary; and that the
stress Villegas was placed under by shackling her increased the risk of injury to her and
her unborn child. Dr. Torrente opined based on her review of Villegas’s medical charts
and personal history (i.e., having had three children), that she could have easily
progressed to the final phase of labor while shackled in the ambulance or in the hospital
room, and pointed to the fact that she progressed from being dilated at 3 cm to 10 cm in
only two hours as support, noting that Dr. Spetalnick apparently overlooked this point.

        Nor did Dr. Spetalnick rebut Villegas’s expert and treating psychiatrist, Dr.
DeBona, who stated that because Villegas’s legs were shackled together while in the
No. 11-6031         Villegas v. Metro. Gov’t of Nashville                            Page 30


ambulance, she could not move or open her legs and faced the terror that her baby might
die, believing there was no one to remove the shackles and that her labor would be short,
as it had been with two of her children.

        Dr. Spetalnick did not address Defendant’s officers’ denial of the breast pump
provided Villegas by hospital staff. Villegas’s experts opined that if a woman is unable
to express milk for several days because she does not have access to her child or to a
breast pump, she can develop engorged breasts and mastitis, an infection of the breast
tissue that results in severe breast pain, swelling, significant fever, rigors and chills. Dr.
Torrente opined that Villegas’s development of mastitis was almost certainly caused by
her inability to use a breast pump in the hours and day following her release from the
hospital.

        The subjective component of a deliberate indifference claim goes to whether
Defendant’s officers were deliberately indifferent to substantial risks of serious harm
posed by shackling. Defendant’s experts did not address several of the serious medical
risks to which Villegas’s experts attested and did not rebut that shackling Villegas while
en route to the hospital, during labor and postpartum, increased the medical risks of
serious harm to Villegas and her unborn child. See R. 119-1 at 34; PID 2624/Dist. Ct.
Op. I agree with the district court that no genuine or material factual dispute remained
regarding whether Defendant’s officers knew of and disregarded the substantial risks of
harm posed by shackling Villegas during labor and postpartum and denying her the
breast pump hospital staff gave her on discharge.
