By Joe Kelly
MILWAUKEE (CN) – A federal judge ruled Friday that a jury will hear a case against a nurse and correctional officer working at the Milwaukee County Jail on the night an inmate claims she was forced to give birth in her cell without any medical care, before being shackled during a week of postpartum treatment.
On March 10, 2014, Rebecca Terry claims she was forced to undergo childbirth and delivery without medical attention in a jail infirmary cell, according to a lawsuit she filed in Milwaukee federal court in 2017.
In that original complaint, Terry sued former Milwaukee County Sheriff David Clarke Jr., Armor Health Correction Services and various jail personnel for allegedly ignoring her cries for help while in childbirth and shackling her to a hospital bed after birth.
The 39-page opinion handed down Friday by U.S. District Judge J.P. Stadtmueller dismissed claims against most of the defendants but said a jury will decide the liability of Officer Brian Wenzel and resident nurse Morgan Bevenue, two employees working in close proximity to Terry at the Milwaukee County Jail on the night she gave birth.
“Whether Wenzel and Bevenue knew, or should have known, about Terry’s labor, and whether they purposefully, knowingly, or recklessly ignored that she was in labor, are fact intensive issues subject to genuine dispute,” Stadtmueller wrote.
Also moving forward to trial is Terry’s claim against Milwaukee County for its policy on the use of restraints, which she says violated her 14th Amendment rights.
Terry was arrested in Franklin, Wisconsin, while she was nine months pregnant and taken to the Milwaukee County Jail for booking procedures. The ruling says Terry informed officers at the time “that she was a daily heroin user and that she was due to deliver that day.”
After being transported to and from Froedtert Hospital in Milwaukee – while wearing leg-irons, wrist restraints and a belly chain – Terry claims Officer Wenzel dismissed her screams of pain “with a wave of a hand.”
After continuing to scream for help and pushing a button asking for assistance for more than three hours, Terry gave birth to a baby boy in her infirmary cell. In her lawsuit, she claimed the baby “was making choking sounds and appeared blue in the face” at which point she “reached into his throat to clear his airway herself.”
Terry was then transferred to Sinai Hospital where she and her child received postpartum care. During this time, however, she says she was shackled to the hospital bed with wrist and leg restraints.
Stadtmueller’s ruling analyzed whether the corrections officer or nurse acted recklessly and if their actions were reasonable, in light of claims that both Wenzel and Bevenue knew Terry was in labor and heard her screams but decided not to investigate or help.
“The few facts we have regarding Bevenue’s involvement in Terry’s care, including whether she could hear Terry from her workstation at the clinic, are disputed; therefore, this is an issue for the jury,” the judge wrote.
As for the officer, Stadtmueller found that “Terry’s evidence, if true, shows that Wenzel decided to ignore her as she went into labor and delivered her baby in her jail cell.”
The ruling noted that Wenzel argues he performed his checks diligently and relied on medical professionals’ view that Terry was not in labor.
“There is at least one report from a fellow inmate who heard some screaming that night, and there are no working security cameras to corroborate either account,” the opinion states.
As for Terry’s claim over what at the time was Milwaukee County’s “widespread policy of shackling hospitalized inmates regardless of their medical condition,” Stadtmueller weighed competing viewpoints before delegating the issue to the jury too.
Stadtmueller noted that the county and jail officials considered Terry a flight risk at the time she was arrested.
“On the one hand, there was no evidence that Terry was a violent person or a danger to herself or to others. On the other, she had a pattern of being uncooperative with law enforcement efforts,” he wrote.
“However,” Stadtmueller continued, “in each instance that Terry was shackled in the hospital, she was also in the company of at least one, sometimes two, armed officials, thereby ensuring that she would be constantly monitored and unlikely to escape.”
While Milwaukee County now has a written policy saying pregnant inmates do not need to be shackled except in extraordinary circumstances, the policy was not in place when Terry gave birth, according to the ruling.
In a statement Monday, Terry’s attorney, Theresa Kleinhaus with the Chicago-based firm Loevy & Loevy, said only that her client “is looking forward to trial and pursuing justice.”
Representatives with Leib Knott Gaynor, the law firm representing Milwaukee County, declined to comment on the ruling.
Terry’s 2017 lawsuit came at a time when Milwaukee County and then-embattled Sheriff Clarke were under scrutiny for management of the Milwaukee County Jail, where no less than four inmates died in 2016 and 2017, spurring numerous lawsuits.
Stadtmueller’s ruling gave Terry 10 days to identify unknown jail employees named in her first amended complaint. He also granted the parties’ motions to seal four docket filings.
A trial date has yet to be announced.