Miriam Mendiola-Martinez v. Joseph Arpaio

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIRIAM MENDIOLA- No. 14-15189

MARTINEZ,

Plaintiff-Appellant, D.C. No.

2:11-cv-02512-DGC

v.

JOSEPH M. ARPAIO, Maricopa OPINION

County Sheriff; UNKNOWN

PARTIES, named as: Jane Doe

Officers 1–5, John Doe

Officers 1–5, Jane Doe Doctors

1–5, John Doe Doctors 1–5,

Jane Doe Nurses 1–5, and John

Doe Nurses 1–5 (in their

individual capacities); COUNTY

OF MARICOPA, as named in

amended complaint;

MARICOPA COUNTY SPECIAL

HEALTH CARE DISTRICT,

named Maricopa County

Special Health District on

amended complaint,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

2 MENDIOLA-MARTINEZ V. ARPAIO

Argued and Submitted February 11, 2016

San Francisco, California

Filed September 12, 2016

Before: Barry G. Silverman, Raymond C. Fisher,

and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

SUMMARY*

Prisoner Civil Rights

The panel affirmed in part and vacated in part the district

court’s summary judgment and award of costs in favor of

defendants and remanded in an action brought under 42

U.S.C. §§ 1981 & 1983, by a former female prisoner who

alleged that her constitutional rights were violated when,

among other things, she was shackled and restrained during

her labor and postpartum recovery.

The panel vacated summary judgment for the County

Defendants on the shackling claims as they related to

shackling while plaintiff was in labor and leaving the

Maricopa County Medical Center after the birth of her son, as

well as the separately pleaded claim under Monell v. New

York City Department of Social Services, 436 U.S. 658

(1978), insofar as it concerns these alleged shackling

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MENDIOLA-MARTINEZ V. ARPAIO 3

incidents. The panel held that plaintiff presented sufficient

evidence for a reasonable jury to conclude that by restraining

her when she was in labor and postpartum recovery, the

County Defendants exposed her to a substantial risk of

serious harm. The panel further determined that a jury could

conclude that the County Defendants were aware of the risk

caused by restraining an inmate in labor and deliberately

indifferent to that risk by restraining her during transport to

the Medical Center where she had her baby. The panel

remanded for a jury to determine whether the risk posed to

plaintiff by the County’s restraint policy was justified, or

whether the County Defendants went too far.

The panel affirmed the district court’s summary judgment

for the County Defendants on plaintiff’s remaining claims

regarding a postpartum leg tether, medical supplies,

pregnancy diet and nutrition, and equal protection. Because

the County Defendants were no longer the prevailing party on

all of their claims, the panel vacated the cost award in favor

of the County Defendants and remanded to the district court

to determine those costs.

The panel affirmed summary judgment in favor of the

Medical Center on all of plaintiffs’ claims and likewise

affirmed the cost award in its favor.

4 MENDIOLA-MARTINEZ V. ARPAIO

COUNSEL

Joy Bertrand (argued), Joy Bertrand Esq., L.L.C., Scottsdale,

Arizona, for Plaintiff-Appellant.

Eileen Dennis GilBride (argued) and William R. Jones, Jr.,

Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona, for

Defendant-Appellee Maricopa County Special Health Care

District.

Michele M. Iafrate (argued), Iafrate & Associates, Phoenix,

Arizona, for Defendants-Appellees Joseph Arpaio, Maricopa

County Sheriff, and Maricopa County.

OPINION

TALLMAN, Circuit Judge.

We recently recognized that only rarely will prisoners’

medical needs “genuinely clash” with the security concerns

of prison personnel. Chess v. Dovey, 790 F.3d 961, 974 (9th

Cir. 2015). That discord may be present when the prisoner is

a woman in labor. Miriam Mendiola-Martinez was in the

custody of Maricopa County for a nonviolent offense when

she gave birth to her son. After her release, she filed suit

under 42 U.S.C. §§ 1981 & 1983, alleging that her

constitutional rights were violated when, among other things,

she was shackled and restrained during labor and postpartum

recovery. Mendiola-Martinez brought her claims against

Maricopa County and Sheriff Joe Arpaio (collectively “the

County Defendants”), the Maricopa County Special Health

MENDIOLA-MARTINEZ V. ARPAIO 5

Care District (“the Medical Center”) where she had her baby,1

and individual John and Jane Doe defendants. The district

court granted summary judgment for the County Defendants

and the Medical Center on all of Mendiola-Martinez’s claims,

and taxed costs against her. She now appeals the summary

judgment orders and the cost awards, both of which we have

jurisdiction to review under 28 U.S.C. § 1291.

We are presented with an important and complex issue of

first impression in our circuit: whether the U.S. Constitution

allows law enforcement officers to restrain a female inmate

while she is pregnant, in labor, or during postpartum

recovery. We hold today that in this case, the answer to that

question depends on factual disputes a properly instructed

jury must resolve. We therefore vacate and remand the

district court’s grant of summary judgment for the County

Defendants on most of Mendiola-Martinez’s shackling

claims. We affirm summary judgment in favor of the County

Defendants on the remaining claims. We also affirm

summary judgment on all claims against the Medical Center.

Regarding costs, we vacate the cost award to the County

1

According to the Maricopa Special Health Care District:

The Maricopa County Special Health Care District

Board of Directors is the governing body for Maricopa

Integrated Health System (“MIHS”). MIHS is the

health care safety net for citizens of Maricopa County,

and provides access to high-quality services to

everyone in Maricopa County who needs them,

regardless of the availability of insurance coverage or

economic status. MIHS runs many facilities in

Maricopa County, including the Maricopa Medical

Center, a full-service hospital where Plaintiff delivered

her baby.

6 MENDIOLA-MARTINEZ V. ARPAIO

Defendants and remand, but affirm the cost award for the

Medical Center.

I

When Mendiola-Martinez was arrested in Arizona for

forgery and identity theft on October 19, 2009, she was 6-

months pregnant. Because she could not prove she was a

legal resident of the United States, she was detained under the

Arizona Bailable Offenses Act, Ariz. Rev. Stat. Ann. § 13-

3961(A)(5), before we later ruled it unconstitutional. See

Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 792 (9th Cir.

2014) (en banc), cert denied, 135 S. Ct. 2046 (2015). On

December 10, 2009, she pleaded guilty to solicitation to

commit forgery. Less than two weeks later, while still in the

custody of the Maricopa County Sheriff’s Office (“MCSO”),

Mendiola-Martinez gave birth to a healthy boy. Days later,

she was sentenced to time-served and released.

Prior to her release, Mendiola-Martinez was detained at

Maricopa County’s Estrella Jail in Phoenix, Arizona. At the

Estrella Jail, Mendiola-Martinez was given a “modified diet”

specifically for pregnant women. This diet consisted of the

regular inmate diet, a prenatal vitamin, and an additional 32

ounces of milk.2 In the affidavit supporting her motion for

summary judgment, Mendiola-Martinez stated that she was

not given enough food while in custody and that the only

water in her cell came from the sink next to the toilet in her

2

MCSO’s “Modified Diets” policy states that for pregnant women,

the regular inmate diet “shall be supplemented with an additional four (4)

cartons of milk per day (one [1] at breakfast, one [1] at lunch, and two [2]

at dinner.” The County Defendants assert that the pregnancy diet also

included a prenatal vitamin.

MENDIOLA-MARTINEZ V. ARPAIO 7

cell. She asserted that due to those conditions, she was

worried that her unborn baby would not survive. Mendiola-

Martinez also contended that the MCSO failed to provide her

water and food during the “extended periods of time” she was

transported from the Estrella Jail to court.

On December 20, 2009, two weeks before her expected

delivery date, Mendiola-Martinez began to have

contractions.3 The medical staff at Estrella Jail determined

that she was “not in early labor,” but ordered her transported

to the Medical Center for examination. During the

ambulance ride to the hospital, Mendiola-Martinez’s wrists

were handcuffed in front of her. MCSO officers also

shackled her ankles with plastic cuffs connected by a metal

chain. After Mendiola-Martinez arrived at the Medical

Center, an MCSO officer placed her in restraints while

hospital staff utilized a fetal monitor to check on her baby.

The Medical Center staff monitored her for two hours,

discharged her, and ordered her transported back to Estrella

Jail.

The next day, December 21, 2009, the medical staff at

Estrella once again ordered her transported to the Medical

Center “to rule out active labor.” Mendiola-Martinez and the

County Defendants dispute whether she was shackled in the

ambulance this second time. Mendiola-Martinez testified at

her deposition that she was not restrained. But the MCSO

deputy who rode with her in the ambulance, Stacey Hertig,

testified that Mendiola-Martinez was placed on a gurney

before she was lifted into the ambulance and that her hands

were cuffed in front of her.

3

The Medical Center records indicate that on December 20, 2009,

Mendiola-Martinez was 38 weeks and four days pregnant.

8 MENDIOLA-MARTINEZ V. ARPAIO

Although Officer Hertig first testified in her deposition

that she did not recall whether the EMT in the ambulance

asked her to remove the cuffs, she later testified that she

removed them at the EMT’s request. Officer Hertig also

testified that Mendiola-Martinez was “crying and making a

lot of noise and movement while we were in the ride.”

Mendiola-Martinez “kept holding her belly” and appeared

uncomfortable. According to Officer Hertig, Mendiola-

Martinez “was in a lot of pain.” In her Incident Report

completed about the transport to the hospital, Officer Hertig

wrote that “Mendiola-Martinez was in active labor.”

After Mendiola-Martinez arrived at the Medical Center,

Dr. Eve LaValley confirmed that she was in “active labor.”

Around 5:00 p.m. that day, at the Medical Center, Mendiola-

Martinez gave birth via cesarean section (“C-section”) to a

healthy boy she named “Angel.” Officer Hertig was in the

delivery room when the baby was born. Mendiola-Martinez

was not shackled or restrained during the procedure.

After the C-section, Mendiola-Martinez was taken to a

post-anesthesia care unit. In her recovery room, an armed

MCSO officer placed a grey plastic cuff around Mendiola-

Martinez’s ankle that was connected to a metal chain. The

other end of the chain was then attached to her hospital bed.

The chain, which was six to eight feet long, allowed her to

walk around her hospital room and to the bathroom. But

when she walked, she had to drag the chain, which she

alleges aggravated her C-section incision and caused her

additional pain. An armed MCSO officer stayed with her in

the recovery room.

On December 22, 2009, Mendiola-Martinez’s friend came

to the hospital to take Angel for the remainder of his mother’s

MENDIOLA-MARTINEZ V. ARPAIO 9

detention. While Angel was at the hospital, Mendiola-

Martinez saw him “at least three times,” for 15–25 minutes at

a time. She did not breast feed him during these visits

because, according to Mendiola-Martinez, the nurses had

already fed him. Mendiola-Martinez never requested a breast

pump to expel her breast milk, and no one at the hospital or

the jail clinic prescribed or gave her one.

The next day, December 23, 2009, two MCSO officers

came to the hospital to take Mendiola-Martinez to court. The

officers removed the restraints from her ankle to allow her to

change into her jail uniform. When she finished changing, an

officer attached handcuffs to her wrists and metal cuffs to her

ankles. The handcuffs were three to four inches apart. In her

jail uniform, socks, and cuffs, Mendiola-Martinez was

escorted to the nurse’s office on a lower floor where other

MCSO detainees were waiting and lined up. Still in cuffs and

under escort, she had to return to her hospital room to take

her medication. She then returned downstairs, where officers

chained her to other detainees, and led her out of the building.

No one gave her a wheelchair. Mendiola-Martinez was

subsequently transported to a jail clinic to continue her

recovery. Within two days of leaving the Medical Center, she

was sentenced to time served, and released from MCSO

custody.

A

While Mendiola-Martinez was in jail, the MCSO had in

effect a written policy regarding the “Transportation and

Restraint of Prisoners and Inmates” (“Restraint Policy”). The

Restraint Policy mandated that MCSO officers restrain all

inmates during transport, including those who are “sick or

injured.” While the type of restraint was discretionary based

10 MENDIOLA-MARTINEZ V. ARPAIO

on the prisoner’s condition, the use of a restraint was not.

The Restraint Policy provided an exception to the general rule

that all inmates must be restrained while outside of the jail,

however, when “[m]edical procedures require the absence of

restraints during treatment.”

The MCSO Restraint Policy also applied to the halls and

rooms of the Medical Center, a full-service hospital

independent from the MCSO. Under the MCSO Restraint

Policy, inmates under guard at the Medical Center had to be

restrained “at all times,” except when “removal of restraints

is determined to be necessary during treatment or

examination by the attending physician.” Upon arrival at the

Medical Center, inmates would be transferred to the custody

of a “Ward-41” officer. The Medical Center apparently had

its own policy or practice of generally deferring to law

enforcement regarding when inmates were to be restrained at

the facility.

Although Officer Hertig testified during her deposition

that the MCSO had a policy of not using “leg irons” on

pregnant women, the MCSO Restraint Policy did not contain

an exemption for pregnant women, women in labor, or

women in postpartum recovery. Four days before Mendiola-

Martinez had her baby, however, the MCSO issued a

clarifying “Restraints and Labor” directive dictating when

officers could use restraints on women in labor. This

memorandum (“active-labor memorandum”), issued by the

Sheriff’s Transportation Division to all staff, including those

working in Ward-41, stated:

Regarding restraints and epidurals in labor

and delivery it will be our practice to remove

the restraints when an epidural is used or

MENDIOLA-MARTINEZ V. ARPAIO 11

during the stage of active labor. We will also

remove the restraints when the Doctor orders

them removed during the active stages of

labor. This is to protect the mother and baby.

Please brief your staff on this immediately as

we do not want the liability of a restrained

inmate giving birth which resulted in any

injury to the mother and child.

The MCSO’s Restraint Policy and the treatment

Mendiola-Martinez received—as a pregnant inmate in her

third trimester, as an inmate in labor, and as an inmate in

postpartum recovery—form the bases of her lawsuit against

the County Defendants and the Medical Center.

B

Two years after she was released from MCSO custody,

Mendiola-Martinez brought a civil rights action against the

County Defendants, the Maricopa County Board of

Supervisors,4 the Medical Center, and, in their individual

capacities, John and Jane Doe Officers 1–5, Nurses 1–5, and

Doctors 1–5. Her amended complaint states that these Does

would “be identified in the course of discovery.” None ever

were.

Mendiola-Martinez’s amended complaint alleged

42 U.S.C. §§ 1981 & 1983 violations for the treatment she

received while in MCSO custody. Specifically, her amended

4

On November 19, 2012, the district court granted the Maricopa

County Board of Supervisors’ motion to dismiss. Thus, the Board is not

a party to this appeal.

12 MENDIOLA-MARTINEZ V. ARPAIO

complaint alleged that all of the defendants were deliberately

indifferent to her serious medical needs in violation of the

Eighth5 and Fourteenth Amendments by using restraints and

shackles on her while she was in labor and postpartum

recovery or acquiescing to the use of those restraints. The

amended complaint further alleged that the restraints the

MCSO officers used on Mendiola-Martinez constituted cruel

and unusual punishment in violation of the Eighth and

Fourteenth Amendments. We refer to these two groups of

claims as the “shackling claims.”

Mendiola-Martinez also alleged that all of the defendants

were deliberately indifferent to her serious medical needs in

violation of the Eighth Amendment by failing to provide her

with medically recommended and related supplies. These

claims are referred to herein as the “breast pump claims.”

The amended complaint also included a single allegation,

which we will refer to as the “nutrition claim,” that the

County Defendants were deliberately indifferent to Mendiola-

5

Eighth Amendment protections apply only once a prisoner has been

convicted of a crime, while pretrial detainees are entitled to the potentially

more expansive protections of the Due Process Clause of the Fourteenth

Amendment. See Kingsley v. Henrickson, 135 S. Ct 2466, 2475 (2015)

(stating that “pretrial detainees (unlike convicted prisoners) cannot be

punished at all”); see also Castro v. County of Los Angeles, No. 12-56829,

2016 WL 4268955, at *4–7 (9th Cir. Aug. 15, 2016). According to her

complaint, Mendiola-Martinez pleaded guilty to solicitation to commit

forgery on December 10, 2009, but the record is unclear whether she was

convicted before she was first taken to the Medical Center on December

20, 2009. Because Mendiola-Martinez’s complaint alleges Eighth

Amendment violations, we assume her allegations pertain to events

transpiring after she was convicted. We therefore analyze her claims as

they are alleged—under the Eighth Amendment, rather than the Due

Process Clause.

MENDIOLA-MARTINEZ V. ARPAIO 13

Martinez’s serious medical needs in violation of the Eighth

Amendment by denying her proper pregnancy nutrition.

An additional count in the amended complaint alleged

that the County Defendants and the Medical Center were

liable for any constitutional violations caused by their

respective policies and practices under Monell v. New York

City Department of Social Services, 436 U.S. 658 (1978).

Mendiola-Martinez alleged that the County Defendants’ and

the Medical Center’s policies caused physical, psychological,

and emotional injury. Our references to Mendiola-Martinez’s

“shackling claims,” “breast pump claims,” and “nutrition

claim” encompass her separately pleaded claim for Monell

liability for the policies and practices that she alleged directly

and proximately caused each of these alleged violations of

her constitutional rights.

Mendiola-Martinez, who is Hispanic, also brought an

equal protection claim against the County Defendants,

alleging that the restraint policies regarding inmates in labor

and postpartum recovery violated her right to be free from

discrimination based on her national origin.

The County Defendants and the Medical Center each filed

motions for summary judgment.6 Mendiola-Martinez filed

separate motions for partial summary judgment—one against

the County Defendants, and another against the Medical

Center. The district court granted summary judgment for the

County Defendants and the Medical Center, denied

Mendiola-Martinez’s motions, and directed the clerk to close

6

Theses motions did not include the individual John and Jane Doe

Officers, Doctors, and Nurses.

14 MENDIOLA-MARTINEZ V. ARPAIO

the case.7 The district court clerk later taxed costs against

Mendiola-Martinez, amounting to $1,971 for the Medical

Center and $936 for the County Defendants. Mendiola-

Martinez timely appealed the district court’s grant of

summary judgment on January 31, 2014, and on April 22,

2014, amended her Notice of Appeal to include the cost

awards.

II

We review grants of summary judgment de novo.

Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). In

doing so, we must determine whether, viewing the facts in the

light most favorable to Mendiola-Martinez as the non-moving

party, any genuine issues of material fact exist, and whether

the district court correctly applied the substantive law. Id. If

a reasonable jury could return a verdict for Mendiola-

Martinez, summary judgment is improper. See Lemire v. Cal.

Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.

2013). If Mendiola-Martinez fails to make a sufficient

showing to support an element of her claims, summary

judgment is appropriate. See Celotex Corp. v. Catrett,

477 U.S. 317, 322–23 (1986).

We review the district court’s cost awards for an abuse of

discretion. See Ass’n of Mexican-American Educators v.

California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc).

7

The district court’s summary-judgment order does not mention any

of the individual Doe defendants. Mendiola-Martinez apparently does not

appeal the dismissal of these individual defendants.

MENDIOLA-MARTINEZ V. ARPAIO 15

III

Mendiola-Martinez asserts that the County Defendants’

policy of shackling women during labor and postpartum

recovery violated her rights under the Eighth and Fourteenth

Amendments. She further contends that because the Medical

Center had a policy of acquiescing to the shackling during her

postpartum recovery, it too violated her rights.

Because Mendiola-Martinez seeks to hold the County

Defendants and the Medical Center liable for constitutional

violations as “persons” under § 1983, she must satisfy the

requirements for municipality liability established by Monell

and its progeny.8 In Monell, the Supreme Court held that

while a plaintiff could sue a municipality or local government

unit under § 1983, these entities were not liable for the

malfeasance of their employees. 436 U.S. at 690–91 (“[I]n

other words, a municipality cannot be held liable under

§ 1983 on a respondeat superior theory.”) Instead, to

establish municipal liability under § 1983, a plaintiff must

show “a direct causal link between a municipal policy or

custom and the alleged constitutional deprivation.” Castro v.

County of Los Angeles, No. 12-56829, 2016 WL 4268955, at

*10 (quoting City of Canton v. Harris, 489 U.S. 378, 385

(1989) (internal quotations omitted). “Where a plaintiff

claims that a municipal action itself violates federal law,” as

Mendiola-Martinez does here by directly challenging what

she contends are policies of the County Defendants and the

Medical Center, “the issues of fault and causation are

straightforward.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v.

Brown, 520 U.S. 397, 404 (1997). In such situations, “proof

8

Mendiola-Martinez does not appeal the apparent dismissal of the

individual Jane and John Doe defendants. See supra notes 6 & 7.

16 MENDIOLA-MARTINEZ V. ARPAIO

that the municipality’s decision was unconstitutional would

suffice to establish that the municipality itself was liable for

the plaintiff’s constitutional injury.” Id. at 405.9

A

Mendiola-Martinez’s alleged constitutional injuries stem

from the Eighth Amendment’s prohibition on cruel and

unusual punishment, which prevents government officials

from acting with deliberate indifference to a prisoner’s health

and safety, see Hope v. Pelzer, 536 U.S. 730, 737–38 (2002),

or serious medical needs, see Estelle v. Gamble, 429 U.S. 97,

104 (1976).10 To prove a violation of the Eighth Amendment,

a plaintiff must show that the defendant: (1) exposed her to a

substantial risk of serious harm; and (2) was deliberately

indifferent to her constitutional rights. See Farmer v.

Brennan, 511 U.S. 825, 837, 842 (1994).

First, a plaintiff must prove that she suffered a

“sufficiently serious” deprivation, such as “incarcerat[ion]

under conditions posing a substantial risk of serious harm,”

id., or that she had a “serious medical need,” Jett v. Penner,

439 F.3d 1091, 1096 (9th Cir. 2006). This inquiry “is a

question of fact, and as such must be decided by a jury if

there is any room for doubt.” Lemire, 726 F.3d at 1075–76.

9

Alternatively, “a plaintiff seeking to establish municipal liability on

the theory that a facially lawful municipal action has led an employee to

violate a plaintiff’s rights must demonstrate that the municipal action was

taken with ‘deliberate indifference’ as to its known or obvious

consequences.” Brown, 520 U.S. at. 407 (citing Canton, 489 U.S. at 388).

10

These duties under the Eighth Amendment are imposed on the

states via the Fourteenth Amendment. Wilson v. Seiter, 501 U.S. 294,

296–97 (1991).

MENDIOLA-MARTINEZ V. ARPAIO 17

When assessing whether a plaintiff was exposed to a

substantial risk of serious harm, we may look to whether the

risk “is not one that today’s society chooses to tolerate.”

Helling v. McKinney, 509 U.S. 25, 36 (1993). A medical

need is serious when the failure to treat it could result in

significant injury or the unnecessary and wanton infliction of

pain. Jett, 439 F.3d at 1096.

The plaintiff then must prove that the defendant was

deliberately indifferent to her health and safety or serious

medical needs. See Farmer, 511 U.S. at 837. Because

Mendiola-Martinez brings her claims under § 1983, she must

establish “the state of mind required to prove the underlying

violations,” even though her claims are against entity

defendants. Brown, 520 U.S. at 405. While a claim of

deliberate indifference against a prison official employs a

subjective standard, Farmer, 511 U.S. at 837, we recently

held that an objective standard applies to municipalities “for

the practical reason that government entities, unlike

individuals, do not themselves have states of mind,” Castro,

2016 WL 4268955, at*11.11 This Castro objective standard

11

We previously avoided the question of whether to apply Farmer’s

subjective standard to a constitutional claim of deliberate indifference

against a municipality. See Gibson v. County of Washoe, 290 F.3d 1175,

1188 n.9 (9th Cir. 2002), overruled by Castro, 2016 WL 4268955, at *11.

And the Supreme Court has not yet resolved the question. See Doe By &

Through Doe v. Washington County, 150 F.3d 920, 923 (8th Cir. 1998)

(“[T]he [Supreme] Court has not directly addressed the question of how

Monell’s standard for municipal liability meshes with Farmer’s

requirement of subjective knowledge.”). The Supreme Court has

acknowledged, however, that “considerable conceptual difficulty would

attend any search for the subjective state of mind of a governmental entity,

as distinct from that of a governmental official.” Farmer, 511 U.S. at 841.

18 MENDIOLA-MARTINEZ V. ARPAIO

In Castro, we noted that the “Supreme Court has strongly suggested

that the deliberate indifference standard for municipalities is always an

objective inquiry” and held that an objective standard should apply. 2016

WL 4268955, at *11. In doing so, we cited Canton, which analyzed

whether a municipality could be held liable for failing to adequately train

its police officers. Canton, 489 U.S. at 388–90 (“The issue in a case like

this one . . . is whether that training program is adequate; and if it is not,

the question becomes whether such inadequate training can justifiably be

said to represent ‘city policy.’”). The Supreme Court in Canton held that

a municipality could be liable under such a theory, but that liability would

only attach when “a failure to train reflects a ‘deliberate’ or ‘conscious’

choice by a municipality—a ‘policy’ as defined by our prior cases.” Id.

at 389. Under Canton, a plaintiff can demonstrate a deliberate or

conscience choice by showing that the municipality acted with “deliberate

indifference.” Id.

We recognize that the reason Mendiola-Martinez must show

“deliberate indifference” here (to prove her Eighth Amendment claim

under § 1983) differs from the reason “deliberate indifference” was

required in Canton (to hold a municipality liable for its failure to train

police officers). As the Supreme Court explained:

Although the term “deliberate indifference” has been

used in other contexts to define the threshold for

finding a violation of the Eighth Amendment, see

Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291,

50 L.Ed.2d 251 (1976), as we have explained, that term

was used in the Canton case for the quite different

purpose of identifying the threshold for holding a city

responsible for the constitutional torts committed by its

inadequately trained agents.

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 124 (1992).

Although Castro relied on Canton’s discussion of municipal liability

under Monell, rather than an Eighth Amendment claim that requires

deliberate indifference, we see no reason why the objective standard of

deliberate indifference we adopted in Castro should not apply to

constitutional claims against a municipality like Mendiola-Martinez’s.

MENDIOLA-MARTINEZ V. ARPAIO 19

is satisfied when “a § 1983 plaintiff can establish that the

facts available to city policymakers put them on actual or

constructive notice that the particular omission [or act] is

substantially certain to result in the violation of the

constitutional rights of their citizens.” Id. (quoting Canton,

489 U.S. at 396 (O’Connor, J., concurring in part and

dissenting in part)) (emphasis omitted).

1

The district court never determined whether the County

Defendants’ policies led to a violation of Mendiola-

Martinez’s rights under Monell. Instead, it ruled that

Maricopa County and Sheriff Arpaio were entitled to

qualified immunity on the shackling claims and granted

summary judgment on that basis. The district court erred in

doing so.

Qualified immunity protects government officials from

liability for civil damages. Pearson v. Callahan, 555 U.S.

223, 231 (2009). Government officials are entitled to

qualified immunity unless: (1) a plaintiff’s allegations make

out a violation of a constitutional right; and (2) the right was

clearly established at the time of the officials’ alleged

misconduct. See id. at 231–32. As permitted under Pearson,

id. at 236, the district court began with the second part of this

inquiry and found that the constitutional right Mendiola-

Martinez was seeking to enforce—to be completely free of

restraints during labor and postpartum recovery—was not

clearly established when she was in MCSO custody.

The same “conceptual difficulty” of searching for the “subjective state of

mind of a government entity” applies. Farmer, 511 U.S. at 841.

20 MENDIOLA-MARTINEZ V. ARPAIO

But as a threshold matter, Maricopa County is not eligible

for qualified immunity because counties “do not enjoy

immunity from suit—either absolute or qualified—under

§ 1983.” Leatherman v. Tarrant Cty. Narcotics Intelligence

& Coordination Unit, 507 U.S. 163, 166 (1993); see also

Lowry v. City of San Diego, 818 F.3d 840, 855 (9th Cir.

2016) (“[Q]ualified immunity analysis is irrelevant to the

issue of Monell liability.”) (citing Brandon v. Holt, 469 U.S.

464, 471 (1985)). Therefore, granting qualified immunity to

Maricopa County was “plainly wrong.” Henry A. v. Willden,

678 F.3d 991, 999 (9th Cir. 2012) (reversing district court’s

grant of qualified immunity to county defendant and

emphasizing that qualified immunity protects officials only).

“Qualified immunity simply does not apply to these claims.”

Id.

Sheriff Arpaio is likewise not eligible for qualified

immunity. When a county official like Sheriff Arpaio is sued

in his official capacity, the claims against him are claims

against the county. See Kentucky v. Graham, 473 U.S. 159,

166 (1985) (“[A]n official-capacity suit is, in all respects

other than name, to be treated as a suit against the entity.”);

Ctr. for Bio-Ethical Reform v. L.A. Cty. Sheriff Dep’t,

533 F.3d 780, 786 (9th Cir. 2008) (holding that sheriff was a

“redundant defendant” in lawsuit against county and county

sheriff in his official capacity). Mendiola-Martinez brought

this action against Sheriff Arpaio in his official capacity as

the person who “oversees the operations of the Maricopa

County jails and is responsible for and accountable for

ultimate decisions of the Office.” She does not contend that

Sheriff Arpaio is personally liable for the alleged

constitutional violations, nor does she allege that he is liable

as a supervisor under a vicarious liability theory. See

Crowley, 734 F.3d at 977. Accordingly, Sheriff Arpaio, like

MENDIOLA-MARTINEZ V. ARPAIO 21

Maricopa County, is not eligible for qualified immunity and

awarding summary judgment on that basis was improper.12

The proper question regarding the County Defendants

was not whether they are entitled to qualified immunity, but

whether a reasonable jury could find that MCSO policies

caused a violation of Mendiola-Martinez’s constitutional

rights. See Monell, 436 U.S. at 690–91. When briefly

discussing the County Defendants’ liability under Monell, the

district court touched on this question by stating that

Mendiola-Martinez had not shown that any employee of the

County violated her constitutional rights. But the district

court never directly analyzed or answered the question, so we

will do so here.

2

MCSO’s Restraint Policy requires officers to restrain all

inmates during transport and while at the hospital. The

Restraint Policy does not exempt women who are pregnant

from being restrained when outside of an MCSO jail. And it

appears the active-labor memorandum, issued days before

Mendiola-Martinez gave birth, did not apply to her.13

12

Even a finding by the district court that the individual Jane and John

Doe defendants were entitled to qualified immunity would not absolve the

County Defendants from liability: “If a plaintiff established he suffered

constitutional injury by the [County], the fact that individual officers are

exonerated is immaterial to liability under § 1983.” Fairley v. Luman,

281 F.3d 913, 917 (9th Cir. 2002).

13

The County Defendants’ position at oral argument that the active-

labor memorandum applied to Mendiola-Martinez is contrary to its

position before the district court. In the County Defendants’ statement of

facts accompanying its motion for summary judgment, the County

22 MENDIOLA-MARTINEZ V. ARPAIO

Therefore, we must assess whether a jury could find that the

Restraint Policy exposed Mendiola-Martinez to a substantial

risk of serious harm.

But even before assessing the severity of the risk

Mendiola-Martinez faced under the Restraint Policy, a factual

dispute emerges about whether she was restrained during the

second transport on December 21, 2009. Mendiola-Martinez

testified that she was not restrained, while Officer Hertig

testified that she was handcuffed before the EMT asked

Officer Hertig to remove the cuffs. We cannot resolve this

important factual issue when reviewing a summary-judgment

Defendants asserted that the “only distinction between the policy at the

time of Plaintiff’s incarceration and now is that the current policy

prohibits pregnant inmates from being restrained during active labor.”

Relying on this purported fact, the County Defendants argued the

following to the district court in their motion for summary judgment:

The prevailing policy at the time of Plaintiff’s

incarceration required restraint of the pregnant inmates

during transport and during recovery from delivery.

(SOF ¶ 50). This policy remains in effect. The only

distinction between the policy at the time of Plaintiff’s

incarceration and now is that the current policy

prohibits pregnant inmates from being restrained during

active labor. (SOF ¶ 51). Plaintiff, however, was never

restrained during labor. (SOF ¶ 52).

We do not allow parties to switch their positions on appeal. See Reynoso

v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006) (holding that a party is

bound by a concession to the district court notwithstanding a contrary

position on appeal). The County Defendants are thus bound to their

previous position that the Restraint Policy in place at the time of

Mendiola-Martinez’s incarceration required restraining inmates in labor,

unless or until a medical professional asked an officer to remove the

restraints.

MENDIOLA-MARTINEZ V. ARPAIO 23

ruling. Viewing the evidence in the light most favorable to

Mendiola-Martinez, however, we think a jury could believe

Officer Hertig’s version of events and find that Mendiola-

Martinez was restrained, pursuant to the Restraint Policy in

effect at the time, while in labor in the ambulance. This

dispute is material to her claim and precludes summary

judgment only if a jury could find that handcuffing Mendiola-

Martinez in the second ambulance ride was a violation of the

Eighth Amendment. Because such a finding is possible,

summary judgment for the County Defendants was improper.

3

As evidence that the County Defendants’ policy subjected

Mendiola-Martinez to a substantial risk of harm, Mendiola-

Martinez offered the expert report of Dr. Carolyn Sufrin, an

Assistant Professor and Physician of the Department of

Obstetrics, Gynecology and Reproductive Sciences at the

University of California, San Francisco. The expert report

states that shackling at “any point in pregnancy” and “during

postpartum recovery” poses a threat to the mother. The

expert opines that shackling is problematic because of the

increased risk of tripping and a “potentially life-threatening”

fall. Shackling during labor is “dangerous,” according to the

expert, because restraints limit the ability of health care

providers to evaluate the woman. Further, restraints could

cause injury to a pregnant woman while she moves her body

to mollify painful contractions. According to the expert, the

risk of falling is also present after a C-section, and restraints

on women in postpartum recovery increase that risk as well.

The expert further opines that postpartum restraints are

problematic because walking after a C-section is necessary to

decrease the risk of blood clots, and restraints restrict a

woman’s ability to walk freely and carefully.

24 MENDIOLA-MARTINEZ V. ARPAIO

The doctor who treated Mendiola-Martinez, Dr. LaValley,

similarly testified that it was “unsafe” for a woman to be

shackled during pregnancy. Dr. LaValley also stated that she

would object to restraints being placed on a woman after a C-

section. She did clarify, however, that a restraint allowing the

patient to walk around after a C-section would be acceptable.

Mendiola-Martinez also cites to our sister circuits and two

district courts that have found, under the facts of their

respective cases, that shackling female prisoners while they

are in labor creates a substantial risk of serious harm and

violates contemporary standards of decency. In Villegas v.

Metropolitan Government of Nashville, 709 F.3d 563, 574

(6th Cir. 2013), the Sixth Circuit held:

[S]hackling of pregnant detainees while in

labor offends contemporary standard 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.

Finding disputed issues of fact as to whether the plaintiff was

a flight risk and whether the defendant subjectively knew of

the risk of shackling an inmate in labor, the Sixth Circuit

vacated summary judgment for the plaintiff. Id. at 578.

Similarly, in Nelson v. Correctional Medical Services,

583 F.3d 522, 529 (8th Cir. 2009) (en banc), the plaintiff’s

expert testified by affidavit that shackling “‘is inherently

dangerous to both the mother and the unborn fetus’ and that

it may interfere with the response required ‘to avoid

potentially life-threatening emergencies for both the mother

MENDIOLA-MARTINEZ V. ARPAIO 25

and the unborn fetus.’” Id. at 529. Based on this undisputed

report, the lack of evidence that the plaintiff was a flight risk,

and the possibility the defendant officer knew of the risks of

shackling, the Eighth Circuit held that a rational jury could

find that the individual officer applying the restraints violated

the Eighth Amendment. See id. at 531

In Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D.

Wash. 2010), the plaintiff’s expert testified that the shackles

used on the plaintiff while she was in labor exposed her to a

serious risk of harm and injury. Id. at 1219. The district

court found that in addition to the expert testimony,

“[c]ommon sense” and the defendant’s own policy, which

prohibited restraints during labor and delivery, “tells us that

it is not good practice to shackle women to a hospital bed

while they are in labor.” Id. Denying summary judgment for

the defendants, the district court ruled that the plaintiff had

shown she had a serious medical need and was exposed to an

unnecessary risk of harm when she was shackled while in

labor and immediately postpartum. Id. at 1219–20.

All of the above cases cite to Women Prisoners of D.C.

Department of Corrections v. District of Columbia, 877 F.

Supp. 634 (D.D.C. 1994) vacated in part, modified in part,

899 F. Supp. 659 (D.D.C. 1995), which appears to be the first

federal case to address this issue. In that class action, the

district court held that “[w]hile a woman is in labor and

shortly thereafter, . . . shackling is inhumane.” Id. at 668.

The district court also acknowledged that restraints may be

necessary for a female prisoner with “a history of assaultive

behavior or escapes.” Id.

The defendants seek to evade the persuasive force of

these cases by arguing that the facts here are less egregious.

26 MENDIOLA-MARTINEZ V. ARPAIO

It is true that the plaintiffs in Nelson, Villegas, and Women

Prisoners may have endured greater injury or risk of injury

than Mendiola-Martinez due to the type of restraints used and

the duration and timing of those restraints. In Nelson, for

example, the plaintiff’s legs were both shackled to the

opposite sides of her hospital bed “well into the final stage of

labor” and prevented her from “moving her legs, stretching,

or changing positions.” 583 F.3d at 525–26. In Villegas, the

plaintiff’s wrists and ankles were cuffed together while she

was on a stretcher for transportation to the ambulance.

709 F.3d at 566. When she arrived at the hospital, officers

restrained one of her legs to the hospital bed while she was in

labor and removed the restraint two hours before she gave

birth. Id. at 567. And in Women Prisoners, when

transporting pregnant women for medical visits, the

defendants “customarily place[d] women in leg shackles,

handcuffs and a belly chain with a box that connect[ed] the

handcuffs and belly chain.” 877 F. Supp. at 646.

Despite the factual distinctions, these cases support

Mendiola-Martinez’s position. First, the cases show that the

four courts that have dealt with this issue have found that

objectively, shackling women in labor exposes them to a risk

so serious that it amounts to a constitutional violation. Cf.

Fain v. Rappahannock Reg’l Jail, No. 3:12CV293-JAG, 2013

WL 3148145, at *5–6 (E.D. Va. 2013) (declining to

determine whether shackling female inmate in labor was a

constitutional violation after holding that individual

defendants were entitled to qualified immunity because the

right to be free of restraints while in labor was not clearly

established). Although the pregnant inmates in Nelson and

Women Prisoners were restrained further into the birthing

process and forced to labor under more restrictive restraints,

MENDIOLA-MARTINEZ V. ARPAIO 27

the County Defendants may still have exposed Mendiola-

Martinez to an unjustified risk of serious harm.

Additionally, the injuries caused by the restraints in these

cases—such as permanent hip injury, torn stomach muscles,

an umbilical hernia, and injured and deformed hips, see

Nelson, 583 F.3d at 526—show the severity of the risks posed

by shackling women in labor. Even if the actual harm

Mendiola-Martinez suffered is less severe than the physical

injuries claimed by the Villegas and Nelson plaintiffs, a

reasonable juror could find that she faced an excessive risk of

harm.

These cases are also aligned with the chorus of

organizations that have warned of the danger of restraining

women in labor and decried the practice, which is relevant to

our inquiry—whether “today’s society chooses to tolerate”

the risk posed by restraining women in labor. Helling,

509 \U.S. at 36. The organizations include: the American

Medical Association, American College of Obstetricians and

Gynecologists, the United Nations, and Amnesty

International. See Villegas, 709 F.3d at 572–73. These same

organizations acknowledge, however, that shackles may be

necessary, despite the risks, when an inmate poses a flight or

safety risk. See id. at 572–74 (citing reports).

The State of Arizona also has recognized the risk of

shackling pregnant women. In 2012, three years after

Mendiola-Martinez gave birth to Angel in Maricopa County,

Arizona, the state legislature banned the use of certain

restraints on a prisoner “who is being transported for delivery

or during labor, delivery and postpartum recovery” unless

restraints are requested by the attending medical staff or a

corrections officer determines that the prisoner “presents an

28 MENDIOLA-MARTINEZ V. ARPAIO

extraordinary circumstance.” Ariz. Rev. Stat. Ann. § 31-

601(A).14 Additionally, MCSO itself recognized the risk of

restraining a woman in “active labor” when it announced its

new practice of not restraining women in active labor “to

protect the mother and the baby” days before Mendiola-

Martinez gave birth.

Unlike the defendants in Villegas, 709 F.3d at 576–77, the

County Defendants provide no evidence disputing the

severity of the risk caused by restraining an inmate during

labor or postpartum recovery. Therefore, we find that

Mendiola-Martinez has presented sufficient evidence for a

reasonable jury to conclude that by restraining Mendiola-

Martinez when she was in labor15 and postpartum recovery,

the County Defendants exposed her to a substantial risk of

serious harm.

Instead of disputing the risk posed by the Restraint Policy,

the County Defendants seek to justify the policy by arguing

that it “serves a legitimate government purpose, specifically

the safety and security of the inmate, detention officers,

hospital personnel, as well as the general public.” Of course,

ensuring the safety of inmates, staff and the public is a worthy

objective, and in some circumstances, justifies the use of

14

This statute appears to apply to Maricopa County. See Ariz. Rev.

Stat. Ann. § 31-601(F)(1) (defining “correctional institution” as “any

entity under the authority of any state or county law enforcement

agency”). The statute permits the use of a “security tether chain” attached

to an inmate’s ankle and a hospital bed during postpartum recovery. Id.

§ 31-601(D).

15

To make such a finding, the jury also would have to find that

Mendiola-Martinez was restrained in the ambulance while in labor on

December 21, 2009.

MENDIOLA-MARTINEZ V. ARPAIO 29

restraints on certain inmates. See, e.g., Keenan v. Hall,

83 F.3d 1083, 1092 (9th Cir. 1996) opinion amended on

denial of reh’g, 135 F.3d 1318 (9th Cir. 1998) (“[F]or the

protection of staff and other inmates, prison authorities may

place a dangerous inmate in shackles and handcuffs when

they move him from his cell.”); LeMaire v. Maass, 12 F.3d

1444, 1457 (9th Cir. 1993) (restraining a “dangerous” inmate

while he showered did not violate the Eighth Amendment

despite a risk of slipping because it was a “security

imperative”); see also Bell v. Wolfish, 441 U.S. 520, 546

(1979) (“[M]aintaining institutional security and preserving

internal order and discipline are essential goals that may

require limitation or retraction of the retained constitutional

rights of both convicted prisoners and pretrial detainees.”).

It is a relevant consideration here as well. We recognize that

prison officials have a “better grasp” of the policies required

to operate a correctional facility than either judges or juries.

See id. at 548. For this reason, in excessive force and

conditions of confinement cases, we instruct juries to defer to

prison officials’ judgments in adopting and executing policies

needed to preserve discipline and maintain security. See

Chess, 790 F.3d at 972–73 (citing Norwood v. Vance,

591 F.3d 1062, 1067 (9th Cir. 2010)).

Such deference is generally absent from serious medical

needs cases, however, where deliberate indifference “can

typically be established or disproved without the necessity of

balancing competing institutional concerns for the safety of

prison staff or other inmates.” Whitley v. Albers, 475 U.S.

312, 320 (1986); see also Chess, 790 F.3d at 973 (“[S]ecurity

considerations are usually not present in medical care

cases.”). Therefore, whether the County Defendants are

entitled to deference depends on the type of claim Mendiola-

Martinez brings against them: do her shackling claims

30 MENDIOLA-MARTINEZ V. ARPAIO

challenge the conditions her confinement? Or are they of the

medical-needs variety?

Mendiola-Martinez contends that her shackling claims are

a hybrid of both. We agree that her shackling claims do not

fit neatly into either category. See Villegas, 709 F.3d at 571

(discussing the “crossover nature of a pregnant shackling

claim” recognized in Nelson, which combines language from

cases involving medical needs and conditions of

confinement). Her challenge to the Restraint Policy is more

akin to the “outlier cases” we recognized in Chess, “in which

medical care and security concerns genuinely clash and

prison personnel must make their medical care decisions in

light of those concerns.” 790 F.3d at 974. In such unusual

situations, the district court must instruct the jury to defer to

the prison officials who adopted and executed a practice or

policy needed to preserve discipline and maintain internal

security. See id.; see also Ninth Circuit Model Civil Jury

Instruction § 9.25.16 That deference, however, comes with an

important caveat: “The [Supreme] Court has held that

deference must be given to the officials in charge of the jail

unless there is ‘substantial evidence’ demonstrating their

response to the situation is exaggerated.” Chess, 790 F.3d at

974 (quoting Florence v. Bd. of Chosen Freeholders of Cty.

of Burlington, 132 S. Ct. 1510, 1518 (2012)); see also

Lemire, 726 F.3d at 1079 (“A prison official’s justification

for exposing inmates to a substantial risk of harm is

reasonable only if it represents a proportionate response to the

16

After Chess, Ninth Circuit Model Civil Jury Instruction § 9.25 was

modified to apply deference language to all conditions of confinement

cases, and to medical needs cases only when a policy addresses security

concerns and the challenged decision was made pursuant to a security-

based policy.

MENDIOLA-MARTINEZ V. ARPAIO 31

penological circumstances in light of the severity of the risk

to which the inmates are exposed.”).17 A jury could find in

this case that the restraints used on Mendiola-Martinez were

an “exaggerated” response to the County Defendants’ safety

concerns. Mendiola-Martinez was arrested for a nonviolent

crime, and the County Defendants have failed to show she

was a danger to others. Nor is there any evidence that

Mendiola-Martinez was a flight risk. In fact, Officer Hertig,

who escorted Mendiola-Martinez to the hospital and was with

her during the C-section and shortly afterward, testified that

Mendiola-Martinez was not a specific security threat and did

not give any indication that she would try to escape.

Mendiola-Martinez’s physical condition when she was

transported to the Medical Center and after her C-section also

make it highly unlikely that she would flee or fight. Her

expert states that “labor contractions are extremely painful

and would preclude a woman from absconding in the few

minutes in between contractions.” The expert additionally

notes that “[p]ost-operative pain after abdominal surgery [like

a C-section] makes it nearly impossible for someone to run.”

See also Women Prisoners, 877 F. Supp. at 668 (“[T]he

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.”).

17

This is consistent with the holdings of Villegas, 709 F.3d at 574,

and Nelson, 583 F.3d at 534, as well as the reports of the medical and

human-rights organizations we referenced, which all recognize that prison

staff may be justified in restraining a woman in labor and postpartum

recovery if she is a threat to herself or others, or poses a flight risk that

they cannot otherwise manage. See Villegas, 709 F.3d at 573–74.

32 MENDIOLA-MARTINEZ V. ARPAIO

Furthermore, pursuant to the Restraint Policy, an armed

officer remained with Mendiola-Martinez at all times while

she was at the hospital, even when she was undergoing a C-

section and under anesthesia. Even if Mendiola-Martinez

was contemplating an escape, the armed officer outside of her

hospital door may have negated the need for any restraint.

Without more than a broad assertion about the penological

interest in restraining all inmates—even one who is in

labor—a reasonable jury could find that the Restraint Policy

exposed Mendiola-Martinez to a substantial and unjustified

risk of harm.

4

Our inquiry does not end there, for the County Defendants

are liable only if Mendiola-Martinez demonstrates that they

were deliberately indifferent to her constitutional rights. See

Farmer, 511 U.S. at 837, 842; see also supra pp. 15–19. In

this case, MCSO’s active-labor memorandum, which states

that women in active labor would not be restrained to avoid

harm to the woman and the baby, seems to “explicitly

acknowledge that substantial risks of serious harm exist”

when restraining a woman in labor. Castro, 2016 WL

4268955, at *12 (quoting Gibson v. County of Washoe,

290 F.3d 1175, 1188 n.10 (9th Cir. 2002), overruled by

Castro, 2016 WL 4268955, at *11)).18 Therefore, a jury

18

Castro overruled Gibson only to the extent that Gibson suggested

a subjective test for showing that a municipality was deliberately

indifferent. See Castro, 2016 WL 4268955, at *11. Therefore, Gibson’s

holding that certain evidence was sufficient to show subjective intent, a

more stringent standard than the objective test we apply here, is still

relevant. See id. at *12 (citing Gibson, 290 F.3d at 1188 n.10, as authority

for its holding that “‘a municipality’s policies [that] explicitly

MENDIOLA-MARTINEZ V. ARPAIO 33

could conclude that the County Defendants were aware of the

risk caused by restraining an inmate in labor and deliberately

indifferent to that risk by restraining Mendiola-Martinez

during transport.

A jury could also infer the County Defendants’ awareness

of the risk of restraining Mendiola-Martinez while she was in

labor because the risk is obvious. See Hope, 536 U.S. at 745

(“The obvious cruelty inherent in this practice should have

provided respondents with some notice that their alleged

conduct violated [the plaintiff’s] constitutional protection

against cruel and unusual punishment.”); Nelson, 583 F.3d at

534 (“Existing constitutional protections . . . would have

made it sufficiently clear to a reasonable officer in September

2003 that an inmate in the final stages of labor cannot be

shackled absent clear evidence that she is a security or flight

risk.”); Women Prisoners, 877 F. Supp. at 669 (finding that

the risk caused by complete shackling of an inmate in her

third trimester of pregnancy was “obvious”); see also

Farmer, 511 U.S. at 841 (describing Canton’s objective

understanding of deliberate indifference as permitting

liability premised on “obviousness or constructive notice”).

Whether the County Defendants were deliberately

indifferent to any risk created by restraining women in

postpartum recovery is a closer question. Such a risk is not

as obvious as restraining an inmate in labor. Mendiola-

Martinez’s expert states that walking “without restraint” after

a C-section is necessary to prevent blood clots. But

Mendiola-Martinez testified that she could walk around the

room with the six-to-eight foot “leg tether,” which was longer

acknowledge that substantial risks of serious harm exist’ may demonstrate

municipal knowledge of that risk”).

34 MENDIOLA-MARTINEZ V. ARPAIO

than the other chains used to restrain her, and that nurses

came into the room to help her walk around. The use of a leg

tether long enough to permit Mendiola-Martinez to walk

around indicates that the County Defendants were aware of

the risk of restraining woman in postpartum recovery and

sought to neutralize the risk, not disregard it. Therefore, we

conclude that a reasonable jury could not find that the use of

the leg tether constituted deliberate indifference to Mendiola-

Martinez’s health and safety in violation of her constitutional

rights. Summary judgment on this aspect of Mendiola-

Martinez’s shackling claims was proper.

The length of the tether works against the County

Defendants, however, when we look at the restraints applied

to Mendiola-Martinez as she left the Medical Center. In

Gibson, the defendant county had employed a mental health

professional at its jail to screen detainees for mental health

issues. 290 F.3d at 1191. The county then dropped the

mental health professional position, leaving it vacant for four

years. Id. Based on those facts, we held that a jury could

find that the county was deliberately indifferent to the mental

health needs of its detainees because the existence of the

screening program showed that the county subjectively knew

screenings were necessary to provide adequate health care

and avoid serious harm to detainees. Id.

Similarly, the long leg tether placed on Mendiola-

Martinez tends to show that the County Defendants knew that

a woman in postpartum recovery needed to walk relatively

freely to mitigate the risk of falling.19 A jury could find that

19

It is possible that a longer tether is used on all inmates staying

overnight at the Medical Center, and not just on inmates in postpartum

recovery. But from this record, we know only that the longer tether was

MENDIOLA-MARTINEZ V. ARPAIO 35

the County Defendants then ignored the need for a longer

tether or chain to permit safe walking when, pursuant to the

Restraint Policy, MCSO officers cuffed Mendiola-Martinez’s

wrists and ankles, chained her to other inmates, and escorted

her out of the Medical Center days after her C-section.

Viewing the sparse evidence here in the light most favorable

to Mendiola-Martinez, we hold that a jury could find the

County Defendants were deliberately indifferent to any risk

created by the restraints used on Mendiola-Martinez when she

left the Medical Center.

We therefore vacate summary judgment in favor of the

County Defendants on Mendiola-Martinez’s shackling claims

as they relate to shackling while Mendiola-Martinez was in

labor and leaving the Medical Center. We affirm summary

judgment for the County Defendants on Mendiola-Martinez’s

remaining shackling claim regarding the postpartum leg

tether. We remand for a jury to resolve the factual dispute

about whether Mendiola-Martinez was restrained in the

second transport on December 21, 2009. The jury will also

have to determine whether Mendiola-Martinez has proved her

deliberate-indifference claim against the County Defendants

regarding restraints during labor and in postpartum recovery

when she left the Medical Center.20 At trial, the district court

used on Mendiola-Martinez. Viewing the evidence in Mendiola-

Martinez’s favor, the longer tether supports an inference that the County

Defendants knew that an inmate in postpartum recovery needs a longer

chain.

20

Ninth Circuit Model Civil Jury Instruction § 9.25 lists “harm to the

plaintiff” as another element of a deliberate-indifference claim. We also

leave to the jury the issue whether the Restraint Policy caused Mendiola-

Martinez the harm she alleges, but note that psychological harm is

36 MENDIOLA-MARTINEZ V. ARPAIO

should give the jury the deference instruction in Ninth Circuit

Model Civil Jury Instruction § 9.25, but emphasize that the

County Defendants are not entitled to deference if the jury

finds that their response to any security or escape threat

Mendiola-Martinez posed was “exaggerated.” Chess,

790 F.3d at 974 (quoting Florence, 132 S. Ct at 1518)).

B

We now turn to the shackling claims against the Medical

Center. In granting summary judgment for the Medical

Center on those claims, the district court did not apply

qualified immunity. Instead, the district court found that

Mendiola-Martinez had not proffered sufficient evidence to

support her claims and survive summary judgment. We

agree.

While at the Medical Center, Mendiola-Martinez was

shackled only after her C-section. She asserts that the

Medical Center’s policy and practice of deferring to law

enforcement about when patients should be shackled or

restrained violates the Eighth Amendment. Once again,

Mendiola-Martinez is taking the “direct path” to liability

under Monell by challenging what she contends is an

unconstitutional policy. See Gibson, 290 F.3d at 1185. And

under § 1983 and the Eighth Amendment, she must

demonstrate that the Medical Center had policies that

(1) exposed her to a substantial risk of serious harm; and

(2) were deliberately indifferent to her constitutional rights.

Farmer, 511 U.S. at 837, 842.

sufficient. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.

1993).

MENDIOLA-MARTINEZ V. ARPAIO 37

First, Mendiola-Martinez presents no evidence that the

Medical Center’s practice of deference exposed her to any

substantial risks. On the contrary, the alleged practice

apparently applied only when no substantial risk of harm

existed. Dr. LaValley, who treated Mendiola-Martinez at the

Medical Center, testified that on prior occasions she has

asked guards to remove an inmate’s restraints, for instance

when they interfere with a mother’s ability to walk or to

breastfeed, and MCSO officers have always complied with

these requests. Additionally, Mendiola-Martinez testified

that when she told a nurse her ankle cuff was hurting her, the

nurse asked an MCSO officer to loosen the restraint and the

officer complied. Accordingly, there is no absolute deference

to law enforcement decisions by the Medical Center on this

record. Medical personnel are permitted to (and do) ask

officers to remove or adjust restraints for patients’ safety or

comfort. This mitigates—rather than creates—any risk of

harm caused by the restraints.

Further, even assuming the Medical Center’s general

policy of deference exposed Mendiola-Martinez to a

substantial risk of serious harm, Dr. LaValley’s testimony

that a restraint that allowed an inmate to walk about during

postpartum recovery would be acceptable and that medical

personnel could ask to have restraints loosened or removed as

necessary leaves no reason to believe the Medical Center was

deliberately indifferent to Mendiola-Martinez’s health and

safety.

Because Mendiola-Martinez has not presented a material

factual dispute to preclude summary judgment on this issue,

the district court properly granted summary judgment for the

Medical Center on the shackling claims.

38 MENDIOLA-MARTINEZ V. ARPAIO

IV

We next address whether summary judgment for the

County Defendants and the Medical Center was proper on

Mendiola-Martinez’s breast pump claims. Mendiola-

Martinez contends that the County Defendants and the

Medical Center were deliberately indifferent to her serious

medical needs by prohibiting her from using, or failing to

provide her with, a breast pump.

Mendiola-Martinez lacks a plausible theory of liability

supported by facts on the breast pump claims as to both the

County Defendants and the Medical Center. She does not

attempt to link any policy or practice of the County

Defendants or of the Medical Center to the alleged failure to

provide her with a breast pump. See Monell, 436 U.S. at 691;

see also Canton, 489 U.S. at 394 (“[A] § 1983 plaintiff

seeking to attach liability to the city for the acts of one of its

employees may not rest on the employment relationship

alone; both fault and causation as to the acts or omissions of

the city itself must be proved.”); cf. Villegas, 709 F.3d at

578–79 (noting plaintiff’s allegation that defendant prohibited

her from using a breast pump pursuant to its policy).

Nor does Mendiola-Martinez demonstrate that some

omission, such as a failure to train, caused the alleged failure

to provide her with a breast pump. See Canton, 489 U.S. at

387–90. Therefore, even if individual employees of the

County Defendants or the Medical Center were deliberately

indifferent to Mendiola-Martinez’s need for a breast

pump—which Mendiola-Martinez has not shown—the

County Defendants and the Medical Center could not be

liable under § 1983. See Monell, 436 U.S. at 691. Because

Mendiola-Martinez lacks a basis for municipal liability, we

MENDIOLA-MARTINEZ V. ARPAIO 39

affirm summary judgment for Defendants on her breast pump

claims.

V

We now review the remaining claims asserted solely

against the County Defendants. Mendiola-Martinez argues

that the County Defendants’ nutrition policy constituted

deliberate indifference to her serious medical needs.21 The

Eighth Amendment “requires only that prisoners receive food

that is adequate to maintain health.” Foster v. Runnels,

554 F.3d 807, 813 n.2 (9th Cir. 2009) (quoting LeMaire,

12 F.3d at 1456). We have previously found that the

“repeated and unjustified failure” to provide inmates adequate

sustenance “amounts to a serious depr[i]vation” in violation

of the Eighth Amendment. Foster, 554 F.3d at 814. In

Foster, denying an inmate sixteen meals over twenty-three

21

Mendiola-Martinez styles her nutrition claim as a serious medical

needs claim. Previous § 1983 claims regarding prison nutrition have been

brought as conditions of confinement claims. See, e.g., Foster v. Runnels,

554 F.3d 807, 812 (9th Cir. 2009); LeMaire, 12 F.3d at 1447, 1449–50.

We recognize that we should give “due regard for differences in the kind

of conduct against which an Eighth Amendment objection is lodged.”

Whitley, 475 U.S. at 320. Here, however, whether Mendiola-Martinez

asserts her nutrition claim as a serious medical needs claim or a conditions

of confinement claim is of no consequence. Either way, the Eighth

Amendment’s deliberate indifference standard applies. See, e.g., Hope,

536 U.S. at 737–38; Whitley, 475 U.S. 312 at 319 (“It is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the

conduct prohibited by the Cruel and Unusual Punishments Clause,

whether that conduct occurs in connection with establishing conditions of

confinement, [or] supplying medical needs . . . .”); Estelle, 429 U.S. at

104. And either way, as we discuss infra, Mendiola-Martinez has not

shown that any alleged deprivation of food or water was sufficiently

serious to trigger Eighth Amendment protection.

40 MENDIOLA-MARTINEZ V. ARPAIO

days was sufficiently serious to violate the Eighth

Amendment. Id. at 812–13. The denial of those meals, as

well as the inmate’s allegations of dizziness, weight loss, and

headaches, all led to the permissible inference that the

inmate’s nutrition was inadequate and could not sustain him.

Id. at 813 n.2.

Mendiola-Martinez lacks sufficient evidence to support

her nutrition claim and survive summary judgment. She has

not provided any evidence that the supplemental pregnancy

diet she received was insufficient or that the water from her

cell’s sink was unsanitary. She likewise has not supported

her allegation that she was deprived of sufficient food and

water when going to court. Nor has Mendiola-Martinez

shown that the County Defendants were deliberately

indifferent to the nutritional needs of pregnant women.

Instead, she merely points to an amended judgment from

District Judge Neil Wake in Graves v. Arpaio, No. 77-0479,

2008 WL 4699770 (D. Ariz. Oct. 22, 2008),22 in which he

found that the food provided to MCSO inmates in that case

violated their right to adequate food.

No evidence has been offered in the present case to make

Judge Wake’s findings applicable here. There is no evidence

that the food Mendiola-Martinez received was moldy,

inedible, or inadequate under the United States Department

of Agriculture’s recommended caloric intake. See Graves,

2008 WL 4699770, at *42. Nor has Mendiola-Martinez

shown or even alleged that the food she received left her or

her baby in poor health. See Foster, 554 F.3d at 813 n.2.

22

We believe that this order is the one on which Mendiola-Martinez

relies. Due to the citation errors in Mendiola-Martinez’s brief, we cannot

be certain.

MENDIOLA-MARTINEZ V. ARPAIO 41

Furthermore, without knowing what a pregnancy diet should

include, no jury could gauge whether the extra milk and pre-

natal vitamin prescribed by MCSO’s modified diet for

pregnant women was inadequate. And unlike in Graves,

there is no evidence demonstrating that Mendiola-Martinez

did not actually receive those supplemental provisions. See

Graves, 2008 WL 4699770, at *44.

Finally, any inference a jury could draw from Mendiola-

Martinez’s claim that she was hungry would not establish a

serious deprivation within the meaning of the Eighth

Amendment. Cf. Foster, 554 F.3d at 813 (concluding that

even though the record contained no evidence about the

nutritional value of meals, the jury could infer meals were

inadequate due to inmate’s testimony that he was denied

meals completely and suffered dizziness and headaches);

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th

Cir. 2002) (“[T]his court has refused to find a ‘genuine issue’

where the only evidence presented is ‘uncorroborated and

self-serving’ testimony.” (quoting Kennedy v. Applause, Inc.,

90 F.3d 1477, 1481 (9th Cir.1996)). The district court

properly granted summary judgment for the County

Defendants on the nutrition claim.

VI

Mendiola-Martinez alleges that the MCSO Restraint

Policy disparately impacts pregnant women born outside of

the United States because they are more likely to be detained

under the Arizona Bailable Offenses Act, Ariz. Rev. Stat.

Ann. § 13-3961, than similarly-situated United States

citizens.

42 MENDIOLA-MARTINEZ V. ARPAIO

The district court construed this equal protection claim as

a challenge to the Arizona Bailable Offenses Act, rather than

the MCSO Restraint Policy. But Mendiola-Martinez’s

amended complaint and supplemental appellate briefing

clearly show that she is challenging the Restraint Policy, not

the Arizona Bailable Offenses Act.23 Because we may affirm

summary judgment on any ground supported by the record,

Lee v. Kemna, 534 U.S. 362, 391 (2002), we now turn to

whether a reasonable jury on the record before us could find

that the Restraint Policy was unconstitutionally

discriminatory toward inmates like Mendiola-Martinez. We

hold it could not.

The Equal Protection Clause of the Fourteenth

Amendment “is essentially a direction that all persons

similarly situated should be treated alike.” Lee v. City of Los

Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).

To survive summary judgment, Mendiola-Martinez must

show that the MCSO Restraint Policy not only had a

discriminatory impact, but that it was enacted with an intent

or purpose to discriminate against members of a protected

class. See Comm. Concerning Cmty. Improvement (“CCCI”)

v. City of Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009).

Mendiola-Martinez’s contention that she need not show

discriminatory intent is incorrect. The Supreme Court has

clearly stated that “‘[p]roof of racially discriminatory intent

or purpose is required’ to show a violation of the Equal

Protection Clause.” City of Cuyahoga Falls, Ohio v. Buckeye

23

In fact, the Arizona Bailable Offenses Act was already successfully

challenged. See Lopez-Valenzuela, 770 F.3d at 792 (holding that Arizona

Bailable Offenses Act categorically forbidding bail for certain

undocumented immigrants violated substantive due process).

MENDIOLA-MARTINEZ V. ARPAIO 43

Cmty. Hope Found., 538 U.S. 188, 194 (2003) (quoting

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,

265 (1977)).

In determining whether a discriminatory intent or purpose

exists, we may consider direct evidence of discrimination,

statistical evidence showing a discriminatory impact, or other

factors that could reveal a discriminatory purpose, like the

historical background of the policy. See CCCI, 583 F.3d at

703. Mendiola-Martinez, however, has not presented

sufficient evidence of discriminatory intent or purpose—

direct, statistical, or otherwise.

As direct evidence of intent, Mendiola-Martinez relies on

offensive quotes about Mexican nationals attributed to Sheriff

Arpaio and published in newspapers. Even if those hearsay

statements were admissible, however, they do not mention the

Restraint Policy and do not otherwise lead to any inference

that Sheriff Arpaio’s 2006 Restraint Policy was promulgated

to discriminate against Mexican nationals.

Without direct evidence of discrimination, Mendiola-

Martinez seeks to demonstrate the discriminatory purpose

behind the Restraint Policy with statistical evidence. When

challenging a facially neutral policy like the Restraint Policy,

“proof of disproportionate impact on an identifiable group,

such as evidence of ‘gross statistical disparities,’ can satisfy

the intent requirement.” Id. at 703. But the statistical

evidence Mendiola-Martinez presents here is woefully

inadequate to achieve her goal. Mendiola-Martinez provides

only general population statistics about Maricopa County:

“31.8% of Maricopa County’s residents are Hispanic or

Latino,” and “[n]inety percent of the undocumented

immigrants in Maricopa County are from Mexico.” She also

44 MENDIOLA-MARTINEZ V. ARPAIO

cites to a district court order summarizing census data on

Hispanics and Latinos in Maricopa County. See Melendres

v. Arpaio, 989 F. Supp. 2d 822, 828–29 & n.2 (D. Ariz.

2013).

But these general population statistics do not establish

that Mexican nationals are disproportionately impacted by the

Restraint Policy, and Mendiola-Martinez simply fails to

present any comparative figures to attempt to show disparate

impact. See Darensburg v. Metro. Transp. Comm’n, 636 F.3d

511, 519–20 (9th Cir. 2011) (“The basis for a successful

disparate impact claim involves a comparison between two

groups—those affected and those unaffected by the facially

neutral policy.” (quoting Tsombanidis v. W. Haven Fire

Dep’t, 352 F.3d 565, 575 (2d Cir. 2003)). Her numbers

reveal no “statistical disparit[y],” let alone a “gross”

statistical disparity necessary to show discriminatory intent.

CCCI, 583 F.3d at 703.

Mendiola-Martinez has not identified any other proof of

discriminatory intent. See id. (noting that other factors may

show discriminatory intent, such as a policy’s historical

background, the sequence of events leading to the decision,

and the administrative history of the challenged statute). We

therefore assume that the Restraint Policy was not born of

discrimination and ask whether it was “rationally related to a

legitimate government interest.” Id. As Mendiola-Martinez’s

counsel recognized at oral argument, the Restraint Policy,

even if potentially problematic when applied to women in

labor or postpartum recovery, is rationally related to the

legitimate government interest of ensuring the safety and

security of law enforcement, the public, and the inmates. See

Hudson v. Palmer, 468 U.S. 517, 526–27 (1984) (recognizing

that prison officials “are to take all necessary steps to ensure

MENDIOLA-MARTINEZ V. ARPAIO 45

the safety of not only the prison staffs and administrative

personnel, but also visitors” and “are under an obligation to

take reasonable measures to guarantee the safety of the

inmates themselves”). We affirm the district court’s entry of

summary judgment on the equal protection claim because

Mendiola-Martinez failed to present sufficient evidence that

the Restraint Policy violated the Equal Protection Clause of

the Fourteenth Amendment. See Celotex, 477 U.S. at

322–23.

VII

Our final task is to determine whether the district court

abused its discretion by taxing costs against Mendiola-

Martinez in favor of the County Defendants and the Medical

Center. See Ass’n of Mexican-American Educators v.

California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc).

Federal Rule of Civil Procedure 54(d)(1) provides that the

court clerk should tax costs, other than attorney’s fees, for the

prevailing party, unless the Rules, federal law, or a court

order directs otherwise. A district court may review the

clerk’s judgment on taxation of costs only upon the filing of

a timely motion. See Fed. R. Civ. P. 54(d)(1).

The judgment against Mendiola-Martinez taxes $1,971

for the Medical Center and $936.37 for the County

Defendants. Because we vacate summary judgment for the

County Defendants on most of the shackling claims, we must

also vacate the cost award for the County Defendants and

remand to the district court to reassess costs in light of our

decision. See id.

We affirm the cost award in favor of the Medical Center.

Mendiola-Martinez waived her right to appellate review of

46 MENDIOLA-MARTINEZ V. ARPAIO

the cost award by neglecting to move for district court review

under Rule 54(d)(1). See Walker v. California, 200 F.3d 624,

626 (9th Cir. 1999) (“[A] party may demand judicial review

of a cost award only if such party has filed a proper motion

within the . . . period specified in Rule 54(d)(1).”). Failing to

file the proper motion is “dispositive.” Id. Additionally,

Mendiola-Martinez’s objection to the bill of costs was

untimely under the local rule of the District of Arizona,

LRCiv. 54.1(b), and the cost award for the Medical Center

was one-third less than the amount the Medical Center sought

in the bill of costs. There was no abuse of discretion, and we

affirm the cost award to the Medical Center.

VIII

We are mindful that the administration of a penal

institution is “at best an extraordinarily difficult undertaking.”

Hudson, 468 U.S. 517, 527 (1984) (quoting Wolff v.

McDonnell, 418 U.S. 539, 566 (1974)). Crafting a restraint

policy that balances safety concerns with the inmates’

medical needs is equally challenging. But it is not

impossible. And we leave it to a jury to decide whether the

risk the Maricopa County Restraint Policy posed to

Mendiola-Martinez was justified, or whether the County

Defendants went a step too far.

In conclusion, we vacate summary judgment for the

County Defendants on the shackling claims as they relate to

shackling while Mendiola-Martinez was in labor and leaving

the Medical Center, as well as the separately pleaded Monell

claim insofar as it concerns these alleged shackling incidents.

We remand for a jury to determine whether liability and

compensation is appropriate on these claims. We affirm

summary judgment for the County Defendants on Mendiola-

MENDIOLA-MARTINEZ V. ARPAIO 47

Martinez’s remaining claims regarding the postpartum leg

tether, medical supplies, pregnancy diet and nutrition, and

equal protection. Because the County Defendants are no

longer the prevailing party on all of their claims, we vacate

the cost award in favor of the County Defendants and remand

to the district court to determine those costs.

We affirm summary judgment in favor of the Medical

Center on all of Mendiola-Martinez’s claims and likewise

affirm the cost award in its favor.

Each party shall bear its own costs on appeal.

AFFIRMED IN PART, VACATED IN PART, and

REMANDED.