Simmons v. Navajo County, Ariz.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WESLEY SIMMONS, husband; 

SHARON SIMMONS, wife,

Plaintiffs-Appellants,

v.

NAVAJO COUNTY, State of Arizona;

NAVAJO COUNTY BOARD OF No. 08-15522

SUPERVISORS, governing board of

Navajo County, Arizona; GARY  D.C. No.

06-CV-00701-DGC

BUTLER, Sheriff of Navajo County;

DAVID BURKE, Jail Commander, OPINION

Navajo County; REYNOLDS,

Lieutenant; A. WARREN, Sergeant;

DEBORAH JONES, nurse and staff;

KARTCHNER, Dr. and staff; GENIE

GREASON, nurse,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

September 3, 2009—San Francisco, California

Filed June 23, 2010

Before: J. Clifford Wallace, Diarmuid F. O’Scannlain and

Andrew J. Kleinfeld, Circuit Judges.

Opinion by Judge O’Scannlain

9175

SIMMONS v. NAVAJO COUNTY 9179

COUNSEL

John Trebon, John Trebon, P.C., Flagstaff, Arizona, argued

the cause for the appellants and filed the briefs.

James M. Jellison, Jellison Law Offices, PLLC, Phoenix, Ari-

zona, argued the cause for the appellees and filed a brief.

David L. Abney, Law Offices of Charles M. Brewer, Ltd.,

Phoenix, Arizona, filed a brief in support of the appellants on

behalf of amicus curiae Arizona Trial Lawyers Association.

9180 SIMMONS v. NAVAJO COUNTY

Eileen Dennis GilBride, Jones, Skelton & Hochuli, P.L.C.,

Phoenix, Arizona, filed a brief in support of the appellees on

behalf of amici curiae Apache, Cochise, Gila, Graham, Green-

lee, La Paz, Mohave, Pinal, Santa Cruz and Yavapai Counties.

OPINION

O’SCANNLAIN, Circuit Judge:

We must decide, among other issues, whether local jail per-

sonnel, their supervisors, and their county employer violated

the Fourteenth Amendment due process rights of a pretrial

detainee who committed suicide while in their custody.

I

A

After allegedly molesting a ten-year-old girl at an elemen-

tary school playground, Jasper Simmons (“Jasper”) was

arrested by the Pinetop-Lakeside Police Department and

charged in Arizona Superior Court with sexual conduct with

a minor under fifteen years old. Jasper was only seventeen

years old at the time, but because of the nature of the crime,

he was charged as an adult and ordered into adult detention

at Navajo County Jail in Holbrook, Arizona. Navajo County

Jail very rarely housed juveniles, who are required by Arizona

law to be physically segregated from adults with no sight or

sound contact between the juvenile and any charged or con-

victed adult. Jasper was assigned to a special two-room cell

(“I-pod”), the only one in the jail that provided the required

sight-and-sound segregation.

On May 21, 2005, he underwent an initial inmate assess-

ment, in which he denied receiving mental health counseling,

having suicidal thoughts, or having a family history of sui-

SIMMONS v. NAVAJO COUNTY 9181

cide. A week later, however, Jasper informed a detention offi-

cer that he had tried to kill himself by cutting his left wrist

with a razor. Jasper was taken to the nurses’ station, where

Nurse Genie Greason cleaned and dressed his wounds, which

she described on his chart as “superficial cuts + scrapes +

abrasions.”

Nurse Greason ordered Jasper to be placed on Suicide

Watch Level I, which is designated for inmates who are

imminently suicidal. Level I required constant observation

and documentation of the inmate’s behavior every fifteen

minutes, a face-to-face evaluation by medical staff at least

once a day, and additional evaluation by the Community

Counseling Center if warranted. Under Level I, an inmate was

required to wear a special smock that could not be used as a

suicide implement, and any potentially dangerous items were

removed from the inmate’s cell. Moreover, the inmate could

not participate in any programs or activities.

The jail’s medical staff saw Jasper every day from May 28

to June 3. His treatment chart indicates that his wounds were

regularly cleaned and dressed, and that he denied having sui-

cidal thoughts. Nurse Debra Jones referred Jasper to see Mag-

gie Lange, a licensed clinical social worker at the Community

Counseling Center who visited the jail weekly. On June 3,

Lange evaluated Jasper, who again denied having suicidal

thoughts. Lange noted that Jasper had a history of taking

antidepressants and had recently attempted suicide. She rec-

ommended that he see Ellen Morse, a nurse practitioner spe-

cializing in mental health issues, and that he remain on

suicide watch.

On June 8, Nurse Jones decided to downgrade Jasper to

Suicide Watch Level II, which is designated for inmates

whose behavior indicates emotional instability. Like Level I,

Level II required documented checks every fifteen minutes

and daily face-to-face evaluations by medical staff. Level II

inmates could wear regular clothing, but the items in their cell

9182 SIMMONS v. NAVAJO COUNTY

were still restricted, and they were still prohibited from partic-

ipating in programs and activities.

On June 10, Jasper saw Lange again and asked for antide-

pressants, but he denied suicidal ideation. He reported feeling

better now that he was allowed to have books but also

reported having difficulty sleeping. On June 15, he saw

Morse, who recorded his history of taking antidepressants and

his suicide attempt but noted that he denied suicidal ideation.

She diagnosed him with depression and prescribed an antide-

pressant. She arranged for a two-week follow-up visit.

At his next weekly visit with Lange on June 17, Jasper

reported that he was “doing better,” and she noted that he

appeared “less depressed.” He told her that he talked to his

parents every day. The following week, on June 24, he again

reported that he was doing better and could “tell the medicine

is working.” Lange noted that his mood had improved and

that he appeared stable. Nevertheless, on June 27, Nurse Jones

decided to keep Jasper on Level II watch as a precaution until

his case management conference on July 19.

On June 29, Morse conducted another psychiatric inter-

view. She noted that Jasper was “doing better overall” and

reported being in a “better mood.” Although Jasper reported

feeling isolated and lonely and still had trouble sleeping, he

was seeing his family weekly and reading more. Morse

observed that Jasper seemed “more relaxed and talkative” and

“less depressed.” On July 1, Nurse Greason documented that

Jasper seemed “cheerful” and was “looking forward to seeing

[his] parents.” At that time, he denied suicidal ideation yet

again.

On Saturday, July 2, Sergeant Albert Warren was the offi-

cer in charge of Navajo County Jail. That day, three detention

officers were out sick, and there were at least nine inmates on

suicide watch, which was a record high for the jail. It was also

an extremely busy day at the jail, given that it was a visitation

SIMMONS v. NAVAJO COUNTY 9183

day during the Fourth of July weekend. That afternoon, Jasper

visited with his family from about 1:30 to 2:40 p.m. His father

reported that Jasper was in “pretty good spirits,” and his

mother recalled that “he was in a good mood.” Neither of his

parents suspected that he would attempt suicide later that day.

Sergeant Warren took Jasper back to his cell around 2:50

p.m. but did not notice anything amiss in terms of Jasper’s

demeanor. Sergeant Warren checked in on Jasper again at

4:35 p.m. when he delivered a dinner tray. At 5:20 p.m., while

retrieving dinner trays from the inmates, Sergeant Warren

responded to a security breach in the medical pod where all

of the medications for the inmates were stored. Afterward, he

proceeded to booking, where he briefed Officer Tim Robin-

son, Jr., who was relieving him of duty that evening, on the

security breach.

At 5:46 p.m., an hour and eleven minutes after Sergeant

Warren last checked on Jasper, Officer Randall Ratcliff vis-

ited Jasper’s cell to collect his dinner tray. At that time, he

discovered Jasper “hanging from the top slide lock of his cell

door by what appeared to be some type of home made rope.”

The rope was fabricated from medical gauze, presumably his

old wrist wound dressings. Jasper was pronounced dead at

6:50 p.m.

B

Jasper’s parents, Wesley and Sharon Simmons (“the Sim-

monses”), filed a complaint against various jail personnel,

their supervisors, and Navajo County (collectively, “Navajo

County”)1 in the Navajo County Superior Court. The Sim-

1

“Navajo County” comprises the individual defendants (Nurse Jones,

Nurse Greason, and Sergeant Warren); the supervisory defendants (Dr.

Kartchner, Lieutenant Reynolds, Commander Burke, and Sheriff Butler);

and the municipal defendants (Navajo County, its Board of Supervisors,

and Sheriff Butler in his official capacity). It does not include Officers

Stump, Robinson, Ratcliff, Nabors, Crandell, and Peterson, who were ini-

tially named in the complaint but dismissed from suit prior to summary

judgment.

9184 SIMMONS v. NAVAJO COUNTY

monses asserted claims under state tort law, 42 U.S.C. § 1983,

and the Americans with Disabilities Act, 42 U.S.C. § 12132

(“ADA”). Navajo County removed the case to the United

States District Court for the District of Arizona pursuant to 28

U.S.C. §§ 1441(b) and 1446. The parties filed cross-motions

for summary judgment, and the district court granted Navajo

County’s motion and denied the Simmonses’ motion. The

Simmonses timely appealed from the district court’s summary

judgment to Navajo County.

II

As a preliminary matter, we address the Simmonses’ argu-

ment that the district court’s grant of summary judgment to

Navajo County “was not procedurally justified.” They con-

tend that the district court improperly dismissed their case as

a sanction for violating the District of Arizona’s Local Rule

of Practice 56.1(e).

[1] Rule 56.1(e) provides that “ [m]emoranda of law filed

. . . in opposition to a motion for summary judgment . . . shall

include citations to the specific paragraph in the statement of

facts that supports factual assertions made in the memoran-

da.” The district court held that the Simmonses’ memorandum

in opposition to Navajo County’s motion for summary judg-

ment violated Rule 56.1(e) because it “cite[d] often to their

entire statement of facts and their entire opposition to [Navajo

County’s] statement of facts, a collection of documents span-

ning 98 pages and 630 numbered paragraphs” with “some 12

inches of related exhibits.” Nevertheless, the district court still

“made its best effort to identify the relevant evidence from

[their] voluminous filings” and ruled on the merits of the Sim-

monses’ claims. The court’s evaluation of the merits makes

clear that it did not, as the Simmonses contend, dismiss their

case as a sanction.

[2] Although the Simmonses’ argument fails, we pause

here to explain, yet again, the importance of following a dis-

SIMMONS v. NAVAJO COUNTY 9185

trict court’s local rules. “District courts have broad discretion

in interpreting and applying their local rules.” Miranda v. S.

Pac. Transp. Co., 710 F.2d 516, 521 (9th Cir. 1983). There-

fore, we have previously upheld a district court’s summary

judgment where there was a violation of “a pertinent local

rule expressly indicat[ing] that the [nonmoving party] had an

affirmative burden to list genuine issues with appropriate

record citations in order to withstand the motion for summary

judgment.” Nilsson, Robbins, Dalgarn, Berliner, Carson &

Wurst v. La. Hydrolec, 854 F.2d 1538, 1545 (9th Cir. 1988)

(per curiam). Because a district court has no independent duty

“to scour the record in search of a genuine issue of triable

fact,” and may “rely on the nonmoving party to identify with

reasonable particularity the evidence that precludes summary

judgment,” we emphasize that the district court in this case

was under no obligation to undertake a cumbersome review

of the record on the Simmonses’ behalf. Keenan v. Allen, 91

F.3d 1275, 1279 (9th Cir. 1996) (internal quotation marks

omitted); see also Carmen v. San Francisco Unified Sch.

Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) (“[T]he district

court may limit its review to the documents submitted for the

purposes of summary judgment and those parts of the record

specifically referenced therein.”).

III

We now turn to the merits of the Simmonses’ section 1983

claims to “determine, viewing the evidence in the light most

favorable to the nonmoving party, whether genuine issues of

material fact exist and whether the district court correctly

applied the relevant substantive law.” Bagdadi v. Nazar, 84

F.3d 1194, 1197 (9th Cir. 1996).2

2

Navajo County urges the panel to limit its review to “facts that were

properly brought to the district court’s attention.” However, the “principal

policy behind local rules like Rule 56.1 is to obviate the need for the dis-

trict court to search the record for facts relevant to summary judgment.”

Cascade Health Solutions v. PeaceHealth, 515 F.3d 883, 914 n.25 (9th

Cir. 2008) (emphasis added). Therefore, “[s]uch a policy has no impact on

the scope of our appellate review.” Id.

9186 SIMMONS v. NAVAJO COUNTY

A

The Simmonses allege that Nurse Jones, Nurse Greason,

and Sergeant Warren violated Jasper’s due process rights

under the Fourteenth Amendment.

[3] Although the Fourteenth Amendment’s Due Process

Clause, rather than the Eighth Amendment’s protection

against cruel and unusual punishment, applies to pretrial

detainees, Bell v. Wollfish, 441 U.S. 520, 537 n.16 (1979), we

apply the same standards in both cases, Clouthier v. County

of Contra Costa, 591 F.3d 1232, 1243-44 (9th Cir. 2010)

(rejecting the contention that mentally ill pretrial detainees are

entitled to greater protection under the Fourteenth Amend-

ment). “We have long analyzed claims that correction facility

officials violated pretrial detainees’ constitutional rights by

failing to address their medical needs (including suicide pre-

vention) under a ‘deliberate indifference’ standard.” Id. at

1241. A prison official cannot be liable for deliberate indiffer-

ence unless he or she “knows of and disregards an excessive

risk to inmate health or safety; the official must both be aware

of facts from which the inference could be drawn that a sub-

stantial risk of serious harm exists, and he must also draw the

inference.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). In

other words, a plaintiff must show that the official was “(a)

subjectively aware of the serious medical need and (b) failed

adequately to respond.” Conn v. City of Reno, 591 F.3d 1081,

1096 (9th Cir. 2010) (citing Farmer, 511 U.S. at 828), peti-

tion for cert. filed, 78 U.S.L.W. 3670 (U.S. May 6, 2010) (No.

09-1361).

[4] The parties do not dispute that Jasper had a serious

medical need, and we have previously recognized that a

heightened suicide risk can present a serious medical need.

See id. at 1095. Therefore, we turn to the issue of whether the

individual defendants knew of but disregarded such risk. Far-

mer, 511 U.S. at 828.

SIMMONS v. NAVAJO COUNTY 9187

1

Although the Simmonses acknowledge that Nurse Jones

“was concerned about Jasper Simmons’ emotional state,” and

“properly kept [Jasper] on suicide watch” as a precaution

despite his improving mood, they nonetheless contend that

she was deliberately indifferent.

[5] To proceed to trial, the Simmonses must adduce evi-

dence raising a triable issue that Nurse Jones knew Jasper was

“in substantial danger” of killing himself yet deliberately

ignored such risk. Clouthier, 591 F.3d at 1248. Here, Nurse

Jones was aware that Jasper had previously attempted to take

his own life, suffered from depression, and was at some risk

of making another attempt. We cannot agree, however, that

the evidence supports the inference that Nurse Jones knew

that Jasper “was at acute risk of harm” at the time he killed

himself. Conn, 591 F.3d at 1097 (emphasis added). By July

2, over a month had elapsed since his suicide attempt with the

razor, during which time Jasper received counseling, took

antidepressants, and by all accounts, was doing better.

Although she testified that Jasper seemed “sulky” at times,

“[h]e seemed like an average teenager to [her] as far as his

behavior.” Not only were her own interactions with Jasper

unremarkable, but she also had no reason to believe from the

treatment notes of the social worker and psychiatric nurse

practitioner, which she reviewed as part of Jasper’s chart, that

Jasper was on the brink of killing himself.

[6] We reject the contention that Nurse Jones’ decision to

keep Jasper on suicide watch until his case management con-

ference on July 19 creates an inference of subjective aware-

ness that Jasper was in “substantial danger.” “Placing a pre-

trial detainee on some level of suicide watch, even the highest

level, does not demonstrate a subjective awareness of a sub-

stantial risk of imminent suicide.” Collignon v. Milwaukee

County, 163 F.3d 982, 990 (7th Cir. 1998) (emphasis added).

There is no indication that in the hours before Jasper’s sui-

9188 SIMMONS v. NAVAJO COUNTY

cide, Nurse Jones “observed suicidal actions, heard statements

of a suicidal nature, or witnessed other evidence of [Jasper’s]

suicidal intent” that would have alerted her to Jasper’s

impending suicidal crisis. Clouthier, 591 F.3d at 1246 n.4.

Indeed, Nurse Jones was off duty that weekend and could not

have observed his behavior leading up to his suicide. More-

over, her decision to keep Jasper on Level II watch, despite

the apparent improvement in his condition, stemmed from her

uncertainty about how the case management conference—

weeks into the future—would affect him. She testified that

“[s]ometimes case managements mean a lot, sometimes they

don’t,” and that she wanted to have a chance to evaluate his

reaction to the conference before changing his status.

[7] In short, this is not a case where a jail official knew a

pretrial detainee was actively suicidal but failed to ensure that

precautionary measures were undertaken, Conn, 591 F.3d at

1098, or unilaterally halted such measures despite a belief that

he was not yet “out of the woods,” Clouthier, 591 F.3d at

1245. While Nurse Jones believed Jasper was at some risk of

suicide warranting continuing precautions, “[t]here is no evi-

dence that [she] was subjectively aware that [Jasper] was

actively suicidal at the time [she] left [her] shift.” Id. at 1247.

The Simmonses argue that Nurse Jones was deliberately

indifferent because she failed to ensure that Jasper had daily

evaluations pursuant to the suicide prevention policy. How-

ever, in the absence of evidence that she knew Jasper was in

suicidal crisis, the Simmonses cannot prove at trial that “she

actually inferred . . . that [Jasper] was at serious risk of harm

if he did not receive proper care.” Id. at 1244 (internal quota-

tion marks omitted).

The Simmonses also argue that Nurse Jones should have

informed the jail staff of Jasper’s suicide risk. Although she

“could have taken the extra step of informing [the jailers]

about [Jasper’s] suicidal tendencies, we cannot say that her

failure to do so was deliberately indifferent in light of what

SIMMONS v. NAVAJO COUNTY 9189

she knew both about the risk and the precautionary actions

undertaken to protect [him].” Brown v. Harris, 240 F.3d 383,

391 (4th Cir. 2001).

Finally, the Simmonses contend that Nurse Jones’s failure

to retrieve Jasper’s used gauze constituted deliberate indiffer-

ence. They point to no evidence in the record, however, that

she was even aware that Jasper had accumulated the gauze.

She testified that it was her practice to dispose of the used

dressings in a waste disposal cart, and that she had no idea

how Jasper had obtained so much gauze. No reasonable jury

could thus conclude that Nurse Jones consciously disregarded

an excessive risk to Jasper’s safety.

[8] We make no determination as to whether Nurse Jones’s

decision to transfer Jasper from Level I suicide watch to Level

II was medically prudent under the circumstances. As this

case demonstrates, simply because those with depression and

suicidal inclinations “appear” to be getting better does not

necessarily mean that they are. However, “[d]eliberate indif-

ference is a high legal standard. A showing of medical mal-

practice or negligence is insufficient to establish a

constitutional deprivation under the Eighth Amendment.”

Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).

Although in hindsight, Nurse Jones may not have made the

best or even the proper medical decisions, what is important

for the analysis in this case is that her decisions do not evi-

dence deliberate indifference. Indeed, the Simmonses’ own

expert, Dr. Joel Dvoskin, testified that he “d[id]n’t have any

reason to believe that she was deliberately indifferen[t].” Hav-

ing discerned no reason to disagree, we conclude that the dis-

trict court properly granted summary judgment on the section

1983 claim against Nurse Jones.

2

The Simmonses also allege that Nurse Greason was subjec-

tively aware of Jasper’s risk of suicide yet failed to take ade-

9190 SIMMONS v. NAVAJO COUNTY

quate precautions. They contend that she “effectively noticed,

but did not document a significant change in the mood and

behavior of Jasper Simmons from July 1 to July 2, 2005.”

They point to her deposition testimony that he was cheerful

on July 1, yet when she tried to speak with him the next morn-

ing, Jasper waved her away because he was absorbed watch-

ing television. However, no reasonable jury would conclude

that a teenager who did not want to be interrupted while

watching television was obviously suicidal and required inter-

vention. Nurse Greason did not think Jasper seemed

depressed or agitated at the time, and the Simmonses point to

no evidence to refute her testimony.

The Simmonses repeat their arguments regarding failure to

perform daily evaluations, failure to inform jail staff of Jas-

per’s suicide risk, and failure to retrieve the used gauze. For

the reasons stated above, we reject such contentions and con-

clude that summary judgment in Nurse Greason’s favor was

proper.

3

The Simmonses next argue that Sergeant Warren’s failure

to check on Jasper every fifteen minutes as required by Nav-

ajo County Jail’s suicide prevention policy, as well as his fail-

ure to search Jasper’s cell, which might have led to the

discovery and confiscation of the medical gauze Jasper ulti-

mately used to hang himself, constituted deliberate indiffer-

ence.

The Simmonses assert that Sergeant Warren was subjec-

tively aware that Jasper “presented a substantial risk of sui-

cide” because he “previously attempted to commit suicide and

was on ‘suicide watch.’ ” But the record belies such assertion.

It is uncontested that Sergeant Warren did not know about

Jasper’s previous suicide attempt and never noticed a wrist

injury or gauze dressings. He did not know Jasper was suffer-

ing from depression and taking antidepressants. He never

SIMMONS v. NAVAJO COUNTY 9191

heard Jasper make a suicidal threat or gesture, and during his

interactions with Jasper on July 2, he saw “nothing that would

send up a red flag.” In short, all he knew was that Jasper was

on Level II suicide watch, which is designed for emotionally

unstable, rather than imminently suicidal, detainees.

[9] While Jasper’s suicide watch status may have alerted

Sergeant Warren to the possibility of suicide, we cannot say

that the magnitude of the risk was “so obvious that [he] must

have been subjectively aware of it.” Conn, 591 F.3d at 1097

(emphasis added); see also Gibson v. County of Washoe, 290

F.3d 1175, 1197 (9th Cir. 2002) (holding that officers cannot

be held liable for deliberate indifference unless an inmate

“was so obviously mentally ill that the deputies, who had

received no training regarding the diagnosis and treatment of

mental illness, must have known that [he] was exhibiting

symptoms of mental illness” (emphasis added)). “In the

absence of a risk so ‘obvious’ that [Sergeant Warren] must

have drawn an impermissible inference,” the evidence is

insufficient to allow a jury to conclude that his conduct vio-

lated Jasper’s due process rights. Clouthier, 591 F.3d at 1247.

[10] “Once a suicide has been accomplished in spite of

preventive measures, it is all too easy to point out the flaws

of failure.” Rellegert v. Cape Girardeau County, 924 F.2d

794, 796 (8th Cir. 1991). Although a “jury might reasonably

conclude that [Sergeant Warren] acted imprudently, wrongly,

or negligently” by failing to check on Jasper more often and

failing to conduct a thorough cell search, the question before

us “is not whether [he] did all [he] could have, but whether

[he] did all the Constitution requires.” Id. at 797-98. Because

the Simmonses have adduced no evidence that Sergeant War-

ren knew that Jasper was suicidal, we agree with the district

court’s summary judgment in favor of Sergeant Warren on the

section 1983 claim.

9192 SIMMONS v. NAVAJO COUNTY

B

The Simmonses allege that the supervisors of Sergeant

Warren, Nurse Jones, and Nurse Greason are liable under sec-

tion 1983 for failure to train or supervise them.

[11] In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the

Supreme Court explained that in a section 1983 action, “the

term ‘supervisory liability’ is a misnomer,” since “[e]ach

Government official, his or her title notwithstanding, is only

liable for his or her own misconduct.” Id. at 1949. To survive

summary judgment, the Simmonses must therefore adduce

evidence that Lieutenant Reynolds, Commander Burke, Sher-

iff Butler, and Dr. Kartchner themselves acted or failed to act

unconstitutionally, not merely that a subordinate did. See

Conn, 591 F.3d at 1096. The Simmonses presented no such

evidence. Consequently, the district court properly awarded

summary judgment to the supervisors.

C

[12] The Simmonses also asserted a section 1983 claim

against Navajo County, its Board of Supervisors, and Sheriff

Butler in his official capacity under the theory of municipal

liability. Because we hold that there was no underlying consti-

tutional violation, the Simmonses cannot maintain a claim for

municipal liability. See City of Los Angeles v. Heller, 475

U.S. 796, 799 (1986) (per curiam); Quintanilla v. City of

Downey, 84 F.3d 353, 355 (9th Cir. 1996).

IV

The Simmonses contend that Jasper’s depression was a dis-

ability under the ADA, and that Navajo County failed to

accommodate his disability by denying him access to outdoor

recreation. The Simmonses also argue that the County vio-

lated the ADA by failing to place Jasper in a more appropriate

facility.

SIMMONS v. NAVAJO COUNTY 9193

[13] Title II of the ADA provides that “no qualified indi-

vidual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be sub-

jected to discrimination by any such entity.” 42 U.S.C.

§ 12132. The Supreme Court has held that Title II applies to

state prisons. Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210

(1998); see also Lee v. City of Los Angeles, 250 F.3d 668, 691

(9th Cir. 2001).

To state a claim under Title II of the ADA, the plaintiff

must allege:

(1) he is an individual with a disability; (2) he is oth-

erwise qualified to participate in or receive the bene-

fit of some public entity’s services, programs, or

activities; (3) he was either excluded from participa-

tion in or denied the benefits of the public entity’s

services, programs, or activities, or was otherwise

discriminated against by the public entity; and (4)

such exclusion, denial of benefits, or discrimination

was by reason of [his] disability.

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir.

2004) (internal quotation marks omitted).

[14] Assuming without deciding that Jasper’s depression

was a disability under the ADA, we focus here on whether

Jasper’s exclusion from outdoor recreation was by reason of

his depression. The Simmonses contend that Jasper’s depres-

sion caused his suicide attempt, which caused him to be

placed on suicide watch, which caused him to be deprived of

outdoor recreation. Ergo, they conclude that Jasper “was

deprived of recreation because of his depression.”

[15] We disagree. First, it is undisputed that Jasper was

deprived of outdoor recreation even before his placement on

suicide watch, since it was impossible to move him to the out-

9194 SIMMONS v. NAVAJO COUNTY

door recreation area without violating the sight-and-sound

segregation requirement of Arizona Revised Statute section 8-

305(B). Second, even if the jail had imposed the recreation

restriction only after Jasper’s placement on suicide watch, the

Simmonses have failed to adduce any evidence that the

restriction was anything but a legitimate effort to protect Jas-

per from self-harm. Even if Jasper were a qualified individual

with a disability and was denied access to outdoor recreation

or other programs at the jail, such denial was not because of

his depression, but due to a jail policy restricting the activities

of inmates on suicide watch. Moreover, even assuming that

transfer to some other prison facility might have been a rea-

sonable accommodation, there is no evidence that such a

transfer was ever sought or denied, let alone that such denial

was because of or motivated by Jasper’s depression. Like-

wise, assuming that Jasper could have been housed in some

other room in the Navajo County Jail, there is no evidence

that the County’s failure to do so was motivated by his

depression; rather, it appears undisputed that the county

placed him in the cell because that was the cell customarily

assigned to juveniles. We therefore conclude that the Sim-

monses failed to raise a triable issue with respect to whether

Jasper’s depression was a “motivating factor” in the decision

to exclude him from recreation or other programs, nor did it

motivate the decision to house him in the I-pod in Navajo

County Jail, as opposed to in some other room or in some

other facility. Head v. Glacier Nw., Inc., 413 F.3d 1053, 1065

(9th Cir. 2005).

Moreover, to the extent that the Simmonses argue that Nav-

ajo County violated the ADA by depriving Jasper of “pro-

grams or activit[ies] to lessen his depression,” such argument

is not actionable under the ADA. The ADA prohibits discrim-

ination because of disability, not inadequate treatment for dis-

ability. See Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir.

1996) (“[T]he Act would not be violated by a prison’s simply

failing to attend to the medical needs of its disabled prisoners

SIMMONS v. NAVAJO COUNTY 9195

. . . . The ADA does not create a remedy for medical malprac-

tice.”).

Because the Simmonses cannot make out a prima facie case

of disability discrimination, we conclude that the district court

properly granted summary judgment to Navajo County on the

ADA claim.

V

[16] Finally, we address the Simmonses’ argument that the

district court erred in dismissing their state law claims on the

basis of a deficient notice of claim under Arizona Revised

Statute section 12-821.01. This statute requires that a person

with a claim against a public entity or employee file notice of

that claim within 180 days after the accrual of the cause of

action. Ariz. Rev. Stat. § 12-821.01. Such claim must “con-

tain a specific amount for which the claim can be settled and

the facts supporting that amount.” Id. § 12-821.01.A. “Claims

that do not comply with A.R.S. § 12-821.01.A are statutorily

barred.” Deer Valley Unified Sch. Dist. v. Houser, 152 P.3d

490, 492 (Ariz. 2007) (en banc). The district court held that

because the Simmonses’ notice of claim did not “explain the

value attached by Plaintiffs to their emotional distress,” “the

dollar value of the loss of support claim,” or even “the amount

of funeral costs,” it failed to comply with the statutory

requirements. Accordingly, the district court granted summary

judgment to Navajo County on the state law claims.

A

The Simmonses argue that Navajo County waived the affir-

mative defense of a deficient notice of claim by failing to

raise the defense in its answer to their complaint, in violation

of Federal Rule of Civil Procedure 8(c).3

3

The Arizona Trial Lawyers Association’s amicus curiae brief argues

that Navajo County waived the defense by actively litigating the case on

9196 SIMMONS v. NAVAJO COUNTY

[17] “The key to determining the sufficiency of pleading

an affirmative defense is whether it gives plaintiff fair notice

of the defense.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 827

(9th Cir. 1979); see also In re Gayle Sterten, 546 F.3d 278,

285 (3d Cir. 2008) (noting that “the proper focus of our inqui-

ry” is whether framing the defense as a denial of an allegation

“specifically deprived [the plaintiff] of an opportunity to rebut

that defense or to alter her litigation strategy accordingly”).

Although Rule 8 requires affirmative defenses to be included

in responsive pleadings, absent prejudice to the plaintiff, the

district court has discretion to allow a defendant to plead an

affirmative defense in a subsequent motion. See Ledo Fin.

Corp. v. Summers, 122 F.3d 825, 827 (9th Cir. 1997); see also

Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir. 1984) (noting

that “[o]ur circuit liberalized the requirement that affirmative

defenses be raised in a defendant’s initial pleading in Healy

Tibbitts Construction Co. v. Ins. Co. of N.A., 679 F.2d 803

(9th Cir.1982)”).

[18] Here, Navajo County’s answer denied the allegation

that the Simmonses had complied with Arizona law in filing

their notice of claim. In a motion for leave to amend the

answer, Navajo County specifically argued that the notice of

claim was insufficient and contained lengthy legal argument

to that effect. The Simmonses addressed this argument in their

response brief, which was cross-referenced in their response

to Navajo County’s motion for summary judgment. Under

such circumstances, we are unpersuaded that the Simmonses

lacked notice of this defense and suffered any prejudice. We

the merits for some twenty months prior to raising the defense in its

motion for summary judgment. See, e.g., City of Phoenix v. Fields, 201

P.3d 529, 536 (Ariz. 2009) (en banc) (holding that there was waiver in the

case of a defendant who “has taken substantial action to litigate the merits

of the claim that would not have been necessary had the entity promptly

raised the defense” (internal quotation marks omitted)). However, “we

decline to consider an argument raised only by [amicus] on appeal.”

Chaker v. Crogan, 428 F.3d 1215, 1220 (9th Cir. 2005).

SIMMONS v. NAVAJO COUNTY 9197

thus conclude that Navajo County’s answer adequately raised

the defense.4

B

[19] At the time of the district court’s decision, Arizona

law was unclear as to what standard governs whether a notice

of claim adequately states the “facts supporting” the amount

claimed. See Deer Valley, 152 P.3d at 494 n.3 (expressly

declining to reach this issue). However, after the district

court’s decision, the Arizona Supreme Court clarified the

standard for determining whether a plaintiff’s notice of claim

has sufficiently alleged factual support for the claimed

amount. See Backus v. State of Arizona, 203 P.3d 499, 505

(Ariz. 2009) (en banc). Therefore, we vacate the district

court’s order as to the state law claims and remand for recon-

sideration in light of Backus. Should the district court decline

to exercise supplemental jurisdiction over the state law

claims, it may remand those claims to state court for further

proceedings, including the application of Backus in the first

instance. See Rivera v. Nat’l R.R. Passenger Corp., 331 F.3d

1074, 1082 (9th Cir. 2003).

VI

For the foregoing reasons, the district court’s order granting

summary judgment to Navajo County is AFFIRMED in part,

VACATED in part, and REMANDED for further proceed-

ings.5 Each party shall bear its own costs on appeal.

4

The Simmonses also argue that Navajo County failed to comply with

Federal Rule of Civil Procedure 9(c), which requires that a party denying

that a condition precedent has been performed do so with particularity.

Because they raise this argument for the first time on appeal, we decline

to consider it. See Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1053

(9th Cir. 2007). Nor do we consider their equitable estoppel argument,

which is also raised for the first time on appeal.

5

The motions of the Arizona Trial Lawyers Association and Arizona

counties for leave to file amicus curiae briefs are granted, and the briefs

are ordered filed.