Case Information
*3 TALLMAN, Circuit Judge.
Wе recently recognized that only rarely will prisoners’
medical needs “genuinely clash” with the security concerns
of prison personnel.
Chess v. Dovey
,
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 fаctual 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 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 M ENDIOLA -M ARTINEZ V . A RPAIO 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
,
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. 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 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.
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 сourt.
On December 20, 2009, two weeks before her expected delivery date, Mendiola-Martinez began to have *6 contractions. 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.
The Medical Center records indicatе that on December 20, 2009, Mendiola-Martinez was 38 weeks and four days pregnant. 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 *7 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, whiсh 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 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 hоspital 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 *8 10 M ENDIOLA -M ARTINEZ V . A RPAIO 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.” Uрon 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 *9 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 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.
complaint alleged that all of the defendants were deliberately indifferent to her serious medical needs in violation of the Eighth 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 аs the “shackling claims.”
Mendiola-Martinez also alleged that all of the defendants *10 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-
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
,
Martinеz’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. Mendiola-Martinez filed *11 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.
the case. 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
,
We review the district court’s cost awards for an abuse of
discretion.
See Ass’n of Mexican-American Educators v.
California
,
M ENDIOLA -M ARTINEZ V . A RPAIO 15
III
Mendiola-Martinez asserts that the County Defendants’ policy of shackling women during labor and postpartum recоvery 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. 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.
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.
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
,
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
,
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
,
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
*14
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
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 committеd by its inadequately trained agents.
Collins v. City of Harker Heights, Tex.
,
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. 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).
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 complеtely 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
,
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
,
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 *17 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]
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
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 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 *18 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
,
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.
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 оf 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 M ENDIOLA -M ARTINEZ V . A RPAIO 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
,
[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
In
Brawley v. Washington
,
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
The defendants seek to evade the persuasive force of
these cases by arguing that the facts here are less egregious.
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.”
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, 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
,
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
,
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 labоr, delivery and postpartum recovery” unless restraints are requested by the attending medical staff or a corrections officer determines that the prisoner “presents an 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
,
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 This statute appears to apply to Maricopa County. See Ariz. Rev. Stat. Ann. § 31-601(F)(1) (defining “correctionаl 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). 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.
M ENDIOLA -M ARTINEZ V . A RPAIO
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
,
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
,
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
,
penological circumstances in light of the severity of the risk to which the inmates are exposed.”). 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 еvidence 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 *25 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.”).
This is consistent with the holdings of
Villegas
,
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.
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
,
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
,
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 M ENDIOLA -M ARTINEZ V . A RPAIO 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 thаt 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. A jury could find that 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 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 *28 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 Mendiоla-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. 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. 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
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
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 nоt 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
*29
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
,
sufficient.
See, e.g.
,
Jordan v. Gardner
,
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. .
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
,
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
,
M ENDIOLA -M ARTINEZ V . A RPAIO 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. 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
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
,
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
*32
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,
No evidence has been offered in the present case to make
Judge Wake’s findings aрplicable 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
,
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
,
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
,
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.
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. 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
,
M ENDIOLA -M ARTINEZ V . A RPAIO
43
Cmty. Hope Found.
, 538 U.S. 188, 194 (2003) (quoting
Arlington Heights v. Metro. Hous. Dev. Corp.
,
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
,
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 thе 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 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. *35 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
,
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
,
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.
*36
California
,
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
the cost award by neglecting to move for district court review
under Rule 54(d)(1).
See Walker v. California
,
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
,
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 *37 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- 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.