     Case: 11-30814     Document: 00511976800         Page: 1     Date Filed: 09/06/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                        September 6, 2012

                                       No. 11-30814                        Lyle W. Cayce
                                                                                Clerk

APRIL NICOLE BEDINGFIELD, as mother & nature tutrix, on behalf of
Elizabeth Macy Bedingfield; ELIZABETH BEDINGFIELD, as executrix, on
behalf of Jimmy Elton Bedingfield, II, Succession,

                                                  Plaintiff–Appellants
v.

LARRY C. DEEN, in his capacity as Sheriff of Bossier Parish; MARK
TOLOSO, in his capacity as Warden, Deputy Sheriff or Officer of the Bossier
Parish Correctional Facility; JERRY SIMMS, in his capacity as Deputy
Sheriff, Assistant Warden or an Officer of the Bossier Parish Correctional
Facility; SAINT PAUL FIRE AND MARINE INSURANCE COMPANY,

                                                  Defendants–Appellees



                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:09-CV-369


Before KING, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Jimmy “Trey” Bedingfield was diagnosed with terminal colon cancer while
incarcerated at the Bossier Parish Sheriff’s Office Work Release Facility, and he
died three months after his diagnosis. Plaintiffs–Appellants Elizabeth Macy

        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-30814   Document: 00511976800     Page: 2   Date Filed: 09/06/2012



                                 No. 11-30814

Bedingfield, Trey’s minor daughter (through her mother April Bedingfield), and
Mrs. Elizabeth Bedingfield and Mr. Jimmy Elton Bedingfield, Trey’s parents,
brought this civil action for monetary damages against Defendants–Appellees
Bossier Parish Sheriff Larry Deen, Warden Mark Toloso, Assistant Warden
Lieutenant Jerry Sims, and St. Paul Fire and Marine Insurance Company.
Plaintiffs asserted a variety of claims, including claims under both federal and
state law that Defendants failed to provide reasonable medical care to Trey. The
district court granted summary judgment in favor of Defendants and dismissed
all of Plaintiffs’ claims. Plaintiffs appeal the district court’s judgment and
several of the court’s evidentiary and discovery rulings. For the following
reasons, we AFFIRM the judgment of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A. Statement of Facts
      Jimmy “Trey” Bedingfield (“Trey”) was convicted of felony theft, and on
November 27, 2007, he was sentenced to serve five years in jail, with three years
suspended and with credit for time served. On January 18, 2008, Trey was
accepted into the Bossier Parish Sheriff’s Office Work Release Facility (“Work
Release Facility”). On January 21, 2008, Trey began working as a freight puller
for Hardware Resources. Trey’s last day of employment was May 23, 2008.
While he was employed, Trey only missed five days of work due to illness.
      On March 2, 2008, Trey complained of nausea, vomiting, diarrhea,
weakness, and jaundice, and he saw a paramedic at the Work Release Facility.
Trey was referred to LSU Hospital, where he was evaluated by physicians. On
March 4, Trey returned to the Work Release Facility with a discharge summary
report from LSU Hospital that stated that an esophagogastroduodenoscopy
(“EGD” or “endoscopy”) procedure was scheduled for March 13. The report also
stated that Trey should not take any “aspirin-type products including Pepto-
Bismol, nonsteroidal anti-inflammatory medications, as well as BC Powders”

                                       2
  Case: 11-30814     Document: 00511976800      Page: 3    Date Filed: 09/06/2012



                                  No. 11-30814

and that Trey would meet with a physician on March 20 to review the results of
the procedure. On March 5, Registered Nurse David Gorman (“Nurse Gorman”),
an employee of the Bossier Parish Sheriff’s Office, made arrangements for jail
personnel to take Trey to the endoscopy procedure on March 13.
      On March 9, Trey submitted a “kite communication form” to Assistant
Warden Lieutenant Jerry Sims (“Assistant Warden Sims”). The form indicated
that Trey was refusing the EGD procedure. Trey wrote on the form:
      Lt. Simms I’m suppose[d] to go back to the Hospital on the 13th and
      have a scope ran down in my stomach to check for ulcers. It[’]s not
      a life threatening deal or anything. I have medical insurance threw
      [sic] Willis Knighton and my own doctor I’ve had for years. I get out
      Aug 8th this year, I would rather him do this when I get out. I would
      like to turn down going back to the hospital if that[’]s ok. I feel fine
      since I’ve been back. Thank you.
On March 10, Trey also signed a “refusal of medical treatment form.” The form
indicated that Trey refused the “M.D. Appointment” and “Medical Treatments”
“scheduled or ordered for [him] by the medical staff.” Trey signed his name
underneath the following typed paragraph on the form:
      I am signing this on my own free will without any coercion. I was
      informed of the consequences of refusal, which may directly affect
      my medical condition. I accept those consequences and release
      Bossier Sheriff’s Department, Bossier Parish Police Jury, and/or
      medical staff of all legal ramifications concerning this matter.
In his affidavit, Nurse Gorman stated that he had talked to Trey about the EGD
procedure and that Trey told him that “he did not want to attend the procedure.”
      On March 19, Trey complained of stomach cramps and of vomiting “clear
water,” and he was seen by Nurse Gorman. Nurse Gorman, who stated that he
was unaware of LSU Hospital’s orders to the contrary, gave Trey several Pepto
Bismol tablets. Nurse Gorman advised Trey to report any further problems, and
Nurse Gorman told Assistant Warden Sims that, if Trey reported any additional




                                         3
   Case: 11-30814       Document: 00511976800         Page: 4     Date Filed: 09/06/2012



                                       No. 11-30814

problems, he should be sent to LSU Hospital. Trey did not report any additional
problems that night, but missed work the next day due to illness.
       Trey next reported a medical problem on May 6, 2008, and he saw Nurse
Gorman regarding chest pain. Nurse Gorman performed an EKG and drew
blood that was sent to LSU Hospital for evaluation.                  Nurse Gorman also
scheduled Trey to see Dr. Russell Roberts (“Dr. Roberts”) on May 9, which was
the date of Dr. Roberts’s next visit to the Work Release Facility. On May 9, Dr.
Roberts examined Trey and evaluated the May 6 blood work and EKG. Dr.
Roberts scheduled a follow-up appointment for Trey a month later, at which time
additional blood work would be compared with the May 6 blood work.
       On May 27, 2008, Trey complained of abdominal pain, and he saw Nurse
Gorman. According to Nurse Gorman, Trey “indicated for the first time . . . that
he had experienced weight loss.” Nurse Gorman immediately sent Trey to LSU
Hospital for evaluation. On May 27, Trey was diagnosed with colon cancer that
had metastasized to other organs, including his liver. According to Warden
Mark Toloso (“Warden Toloso”), on Saturday, May 31, LSU Hospital told him of
Trey’s terminal illness and requested permission for Trey to have visitors at LSU
Hospital.1 Warden Toloso stated that he granted permission for visitation that
same day. Trey’s family visited him daily at LSU Hospital starting on or about
June 1, 2008. Trey was discharged from LSU Hospital to hospice care on June
28, 2008. He passed away due to the cancer on September 3, 2008.
       In addition to the medical problems outlined above, Plaintiffs assert that
Trey experienced more medical issues but did not report them because of threats
made by Warden Toloso.            Plaintiffs state that the intimidation began on
February 11, 2008, when Warden Toloso chastised Trey for missing work due to
a back injury. According to Plaintiffs, Trey told his family and friends (over the

       1
         LSU Hospital is not a secure facility, so visitation is not permitted while an inmate
is receiving treatment, unless the inmate has a terminal illness.

                                              4
   Case: 11-30814       Document: 00511976800          Page: 5     Date Filed: 09/06/2012



                                       No. 11-30814

telephone and through letters) that he did not report his medical problems
because he did not want to be removed from the Work Release Facility and be
placed back in the general prison population.
B. Statement of Proceedings
       On March 9, 2009, Plaintiffs–Appellants Elizabeth Macy Bedingfield,
Trey’s minor daughter (through her mother and natural tutrix April
Bedingfield),2 and Mrs. Elizabeth Bedingfield and Mr. Jimmy Elton Bedingfield,
Trey’s parents,3 brought this civil action for monetary damages against
Defendants–Appellees Bossier Parish Sheriff Larry Deen (“Sheriff Deen”),
Warden Toloso, Assistant Warden Sims, and St. Paul Fire and Marine Insurance
Company. Plaintiffs filed their complaint in the United States District Court for
the Western District of Louisiana. Plaintiffs alleged that Defendants failed to
provide reasonable and timely medical care to Trey. In Trey’s wrongful death
and survival actions, Elizabeth Macy Bedingfield asserted claims under 42
U.S.C. § 1983 for (1) the denial of adequate medical care in violation of Trey’s
Eighth Amendment rights and (2) the denial of visitation in violation of his First
Amendment rights. She also asserted Louisiana state-law negligence claims
alleging a denial of reasonable medical care. Trey’s parents asserted a claim
under § 1983 for the denial of familial association with Trey in violation of their
First and Fourteenth Amendment rights. They also asserted loss of consortium
claims, bystander claims, and subrogation claims to recover funeral expenses.
       On October 19, 2010, the magistrate judge granted Sheriff Deen’s request
for a protective order prohibiting Plaintiffs from taking his deposition. The


       2
        Elizabeth Macy Bedingfield, Trey’s surviving child, possesses the sole right to pursue
Trey’s wrongful death and survival actions. April Bedingfield, Trey’s ex-wife, is only acting
on behalf of her minor daughter in this lawsuit.
       3
         Mr. Jimmy Elton Bedingfield, Trey’s father, passed away on February 8, 2011. On
April 27, 2011, the district court ordered that Mrs. Elizabeth Bedingfield, the surviving spouse
and named executrix of his estate, be substituted as plaintiff for the decedent.

                                               5
   Case: 11-30814    Document: 00511976800      Page: 6    Date Filed: 09/06/2012



                                  No. 11-30814

magistrate judge reasoned that “[t]here is no allegation in the Complaint that
the Sheriff knew Trey or personally participated in any decisions regarding
Trey’s incarceration or medical treatment.”        The magistrate judge stated,
however, that “[i]f Plaintiffs learn through other depositions or discovery that
the Sheriff has unique personal knowledge relevant to the issues in this case,
then Plaintiffs should re-urge the matter with the court.” On February 22, 2011,
Plaintiffs filed a motion to take the deposition of Sheriff Deen, arguing that
“Sheriff Deen, because of his position and authority, possesses knowledge and
information that is vital to their case.” The magistrate judge denied this motion,
reasoning that Plaintiffs did not demonstrate how Sheriff Deen’s position
provided him with “unique personal knowledge about the facts of this case.” The
district court affirmed the magistrate judge’s order.
      On February 11, 2011, Defendants filed a motion for summary judgment,
seeking the dismissal of all of Plaintiffs’ claims. Defendants’ summary judgment
evidence included the LSU Hospital discharge summary report, the kite
communication form, the refusal of medical treatment form, Trey’s medical
records, and the affidavits of Warden Toloso, Assistant Warden Sims, Dr.
Roberts, and Nurse Gorman. Warden Toloso stated in his affidavit that he was
aware that Trey had elected to delay the endoscopy procedure, but “was not
aware that [Trey] had any serious medical problem.” He further stated that
“[w]orkers are not penalized by the Sheriff’s Office for requesting or receiving
medical treatment.” Assistant Warden Sims similarly stated in his affidavit that
he was not aware that Trey had any serious medical needs. Defendants also
included the expert report of Dr. Alan B. Grosbach (“Dr. Grosbach”) regarding
causation. Dr. Grosbach opined that, based on “the well-established slow growth
rate of colon cancer,” it is “more likely than not [that Trey’s] cancer was not only
present but already widely metastatic at the time of his March hospitalization.”



                                         6
   Case: 11-30814   Document: 00511976800      Page: 7   Date Filed: 09/06/2012



                                 No. 11-30814

Dr. Grosbach concluded that Trey’s “cancer would still have been incurable had
it been diagnosed in March.”
      On March 25, 2011, Plaintiffs filed a motion in opposition to Defendants’
motion for summary judgment. Plaintiffs argued that Defendants’ deliberate
indifference to Trey’s medical needs led to Trey’s cancer not being diagnosed in
a timely manner. Plaintiffs’ summary judgment evidence included the affidavit
and deposition testimony of Mrs. Elizabeth Bedingfield and the deposition
testimony of Brent Weir, a family friend. Plaintiffs also attached the affidavit
of Dr. Neilan Prather (“Dr. Prather”). Dr. Prather, who was board certified in
internal medicine, was Trey’s physician prior to his incarceration in 2007. Based
on his review of Trey’s 2008 medical records, Dr. Prather concluded that “the
delay in diagnosis and appropriate treatment of Trey Bedingfield’s cancer of
approximately two months was, more probable than not, a substantial
contributing factor in worsening [his] prognosis and subsequent failure to
respond to treatment (chemotherapy) thereby significantly worsening his
outcome as defined by survival time and quality of life.”
      On April 18, 2011, Defendants filed a motion to strike the affidavit of Dr.
Prather, arguing that his opinions should have been disclosed earlier pursuant
to Federal Rule of Civil Procedure 26. On May 6, Defendants filed a Daubert
motion to exclude Dr. Prather’s testimony.       On June 16, during a status
conference, the district court orally granted Defendants’ motion to strike the
affidavit of Dr. Prather. The district court reasoned that Dr. Prather was not
Trey’s treating physician, but rather he was an expert whose forensic opinions
should have been, and were not, disclosed months earlier pursuant to Rule 26.
The court then mooted Defendants’ Daubert motion. Plaintiffs filed a motion for
reconsideration of the court’s two rulings, arguing that “they believed in good
faith that Dr. Prather was [Trey’s] treating physician” and that the rulings were
“a significant penalty.” The district court denied Plaintiffs’ motion.

                                        7
   Case: 11-30814   Document: 00511976800      Page: 8   Date Filed: 09/06/2012



                                 No. 11-30814

      On May 9, 2011, Defendants filed a motion for a protective order
prohibiting Plaintiffs from issuing discovery subpoenas after the March 15
discovery deadline set by the scheduling order. Defendants stated that on May
5, after the discovery deadline, they received a copy of Plaintiffs’ subpoena to
City-Tel Coin, Inc. (“City-Tel”) that sought to obtain telephone records and
recordings of Trey’s conversations with his family and friends while he was
incarcerated at the Work Release Facility. On May 23, the magistrate judge
granted Defendants’ motion and quashed Plaintiffs’ subpoena to City-Tel. The
magistrate judge explained that “Plaintiffs may not make an end-run around the
discovery deadline by issuing subpoenas to a third party” and that “Plaintiffs’
justifications for the untimely subpoena are unavailing.”
      On June 2, 2011, Plaintiffs filed a motion in limine to strike the affidavit
and testimony of Dr. Grosbach, arguing that Dr. Grosbach’s expert medical
opinions had “no basis in fact or science.” The district court denied Plaintiffs’
motion. The court reasoned that the motion in limine was, “in actuality, a veiled
Daubert motion” and that Plaintiffs had filed the motion after the May 6
deadline for Daubert motions set by the scheduling order. The court noted that
Plaintiffs failed to offer a good faith explanation for missing the deadline and
concluded that it would “not entertain Plaintiffs’ untimely Daubert challenge.”
      On July 27, 2011, the district court issued a comprehensive, thirty-five
page Memorandum Ruling granting Defendants’ motion for summary judgment.
The court first addressed the admissibility of Plaintiffs’ evidence regarding
Warden Toloso’s alleged intimidation of Trey. Plaintiffs’ evidence consisted of
alleged statements made by Trey to his family and friends regarding this
intimidation, as set forth in the affidavit and deposition testimony of Mrs.
Elizabeth Bedingfield and Brent Weir. The defendants objected to this evidence
as inadmissible hearsay. The district court noted that “Plaintiffs make the
conclusory assertion that these statements . . . are admissible under Federal

                                        8
   Case: 11-30814   Document: 00511976800      Page: 9   Date Filed: 09/06/2012



                                  No. 11-30814

Rules of Evidence 803, 804, and 807,” but “supply little or no analysis.” In a
thorough analysis, the court determined that the challenged evidence was not
admissible under (1) Rule 803(3), the state of mind exception, (2) Rule 804(b)(2),
the dying declaration exception, and (3) Rule 807, the residual exception. The
court excluded Plaintiffs’ evidence as inadmissible hearsay.
      The district court next addressed Plaintiffs’ § 1983 claims that Defendants
were deliberately indifferent to Trey’s serious medical needs in violation of the
Eighth Amendment. Plaintiffs made two arguments in support of their claims:
(1) that Warden Toloso intentionally threatened Trey, causing him to forgo
medical treatment; and (2) that Warden Toloso and Assistant Warden Sims
knew that Trey’s medical condition was serious but allowed him to forgo the
scheduled EGD procedure. The court rejected Plaintiffs’ first argument because
the court had determined that Plaintiffs’ sole evidence in support of this
argument was inadmissible hearsay. With regard to the second argument, the
court addressed Plaintiffs’ contention that Trey posed a medical question in his
kite communication form that was ignored by Assistant Warden Sims. Plaintiffs
pointed to Trey’s statement that he “would like to turn down going back to the
hospital if that[’]s ok” and argued that the “if that[’]s ok” language asked
Assistant Warden Sims if it was safe for him to decline the EGD procedure. The
court determined that, even if the language could be interpreted as posing a
medical question, “there is no summary judgment evidence to support that
Assistant Warden Sims was deliberately indifferent in not interpreting the
document as a request for his medical opinion.” The court concluded that the
summary judgment evidence indicated that Trey saw medical personnel each
time he reported a problem and that Warden Toloso and Assistant Warden Sims
were not aware that Trey had any serious medical condition. The court held that




                                        9
  Case: 11-30814       Document: 00511976800         Page: 10     Date Filed: 09/06/2012



                                       No. 11-30814

there was no deliberate indifference and granted summary judgment to
Defendants on Plaintiffs’ § 1983 Eighth Amendment claims.4
       The district court then granted summary judgment in favor of Defendants
on Plaintiffs’ Louisiana state-law claims for the denial of reasonable medical
care. The court reasoned that the summary judgment evidence indicated that
Trey saw medical personnel each time he requested treatment and thus that the
care provided was reasonable. Furthermore, the court held that Plaintiffs’
§ 1983 and state-law claims relating to the denial of medical care failed for lack
of evidence on causation. The court explained that Dr. Grosbach’s expert opinion
that Trey’s cancer was terminal in March 2008 was “not challenged by any
competent summary judgment evidence” by Plaintiffs, because the court had
granted Defendants’ motion to strike the affidavit of Dr. Prather.
       The court then granted summary judgment to Defendants on Plaintiffs’
§ 1983 claims that Trey was denied his right to visitation with family for several
days in violation of his First Amendment rights. The court concluded that “there
is simply no evidence of a constitutional violation.” The court next granted
summary judgment to Defendants on Trey’s parents’ § 1983 claims that
Defendants violated “their constitutionally protected rights of familial
association.” The district court reasoned that “Warden Toloso and Assistant
Warden Sims are entitled to qualified immunity on the grounds that there was
no clearly established constitutional right of a parent to recover for intrusion on
a relationship with an adult child.”
       The court next granted summary judgment to Defendants on Plaintiffs’
Louisiana state-law loss of consortium claims, reasoning that this cause of action
only applies “where death does not occur.” Furthermore, the court held that
Plaintiffs’ bystander claims “fail[] as a matter of law because Mr. and Mrs.

       4
         Because the court held that there was no deliberate indifference, the court concluded
that “it need not reach the Monell claim” against Sheriff Deen.

                                             10
  Case: 11-30814    Document: 00511976800      Page: 11     Date Filed: 09/06/2012



                                  No. 11-30814

Bedingfield acquired knowledge of their son’s injury after the fact [of the alleged
denial of medical care to Trey].” The court explained that the bystander cause
of action applies only to persons “who view an event causing injury to another
person, or who come upon the scene of the event soon thereafter.” Finally, the
court granted summary judgment to Defendants on Plaintiffs’ subrogation
claims because Plaintiffs premised their claim “on a finding that there was
wrongdoing on the part of” Defendants, and the court found no such wrongdoing.
On July 27, 2011, the district court entered its judgment dismissing all of
Plaintiffs’ claims. Plaintiffs timely appealed the district court’s judgment and
several of the court’s evidentiary and discovery rulings.
                               II. DISCUSSION
A. Standard of Review
      We review a district court’s grant of summary judgment de novo, applying
the same standard as the district court. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A
“genuine” dispute exists if, based on the evidence, a reasonable jury could return
a verdict for the nonmoving party. Hamilton v. Segue Software Inc., 232 F.3d
473, 477 (5th Cir. 2000). When reviewing a grant of summary judgment, “we
consider all of the evidence in the record but refrain from making credibility
determinations or weighing the evidence.” Turner, 476 F.3d at 343 (citation
omitted). “[W]e draw all reasonable inferences in favor of the nonmoving party.”
Id. (citations and internal quotation marks omitted). “However, a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.” Id. (citation and internal quotation
marks omitted). We may affirm a grant of summary judgment “on any basis



                                        11
  Case: 11-30814    Document: 00511976800     Page: 12    Date Filed: 09/06/2012



                                  No. 11-30814

supported by the record.” See Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir.
2011) (citation and internal quotation marks omitted).
      We review a district court’s evidentiary and discovery rulings for abuse of
discretion. Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 927 (5th Cir.
2006) (citations omitted). “A trial court abuses its discretion when its ruling is
based on an erroneous view of the law or a clearly erroneous assessment of the
evidence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)
(citation omitted). “If we find an abuse of discretion in admitting or excluding
evidence, we next review the error under the harmless error doctrine, affirming
the judgment, unless the ruling affected substantial rights of the complaining
party.” Id. (citation omitted).
B. Deliberate Indifference Claims
      1. Applicable Law
      The Eighth Amendment to the United States Constitution prohibits the
infliction of “cruel and unusual punishment.” The Supreme Court has stated
that the Eighth Amendment requires that prison officials provide inmates with
adequate medical care. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994);
Estelle v. Gamble, 429 U.S. 97, 103 (1976). In Estelle v. Gamble, the Supreme
Court held that “deliberate indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the
Eighth Amendment.” 429 U.S. at 104 (internal citation omitted). In Farmer v.
Brennan, the Supreme Court elaborated on the standard of “deliberate
indifference,” explaining that “a prison official cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions of confinement
unless the official knows of and disregards an excessive risk to inmate health or
safety.” 511 U.S. at 837; see also Stewart v. Murphy, 174 F.3d 530, 533-34 (5th
Cir. 1999).   Mere negligence or medical malpractice does not constitute a
constitutional violation. See Stewart, 174 F.3d at 534. In order to make a

                                       12
  Case: 11-30814    Document: 00511976800     Page: 13   Date Filed: 09/06/2012



                                 No. 11-30814

showing of deliberate indifference, plaintiffs must provide evidence that “prison
officials refused to treat [the inmate], ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (footnote, citation, and internal quotation
marks omitted).
      2. The District Court’s Exclusion of Plaintiffs’ Hearsay Evidence
      On appeal, Plaintiffs argue that the district court erred in excluding as
inadmissible hearsay their evidence regarding Trey’s alleged statements about
Warden Toloso’s threats and intimidation. Plaintiffs assert that, to the extent
that Trey’s statements are considered hearsay, the statements “are admissible
under the well-established exceptions to the hearsay rule set forth” in Federal
Rules of Evidence 803, 804, and 807.
      We conclude that Plaintiffs’ arguments on appeal are unavailing.
Plaintiffs have failed to provide any analysis demonstrating how Trey’s
statements fall under any of the cited hearsay exceptions. Also, we agree with
the district court’s thorough analysis and conclusion that Trey’s statements do
not fall under any of the hearsay exceptions. First, Trey’s statements are not
admissible under the Rule 803(3) state of mind exception. We have explained
that Rule 803(3) “does not permit the witness to relate any of the declarant’s
statements as to why he held the particular state of mind, or what he might have
believed that would have induced the state of mind.” United States v. Cohen,
631 F.2d 1223, 1225 (5th Cir. 1980) (emphasis added). In Cohen, this court
explained that Rule 803(3) “limit[s] those admissible statements to declarations
of condition—‘I’m scared’—and not belief—‘I’m scared because Galkin threatened
me.’” Id. Here, Plaintiffs seek to introduce Trey’s statements that Warden
Toloso’s intimidation prevented him from reporting medical problems and
seeking medical treatment. Thus, these statements do not fall under the Rule

                                       13
  Case: 11-30814       Document: 00511976800          Page: 14     Date Filed: 09/06/2012



                                       No. 11-30814

803(3) exception because the statements do not simply demonstrate Trey’s state
of mind, but indicate why Trey held his particular state of mind. Id.
       Second, Trey’s alleged statements do not fall within the dying declaration
exception set forth in Rule 804(b)(2). In order to be admissible under this
exception, “the declarant must have spoken without hope of recovery and in the
shadow of impending death.” Shepard v. United States, 290 U.S. 96, 99 (1933);
see also Pippin v. Dretke, 434 F.3d 782, 793 n.10 (5th Cir. 2005). Plaintiffs failed
to provide any summary judgment evidence indicating that Trey made these
statements “in the shadow of impending death.”
       Third, Plaintiffs failed to show that Trey’s statements are admissible
under Rule 807. Rule 807, the residual exception to the hearsay rule, “is to be
‘used only rarely, in truly exceptional cases.’” United States v. Phillips, 219 F.3d
404, 419 n.23 (5th Cir. 2000) (citation omitted). “The proponent of the statement
bears a heavy burden to come forward with indicia of both trustworthiness and
probative force.” Id. (citation and internal quotation marks omitted). “In order
to find a statement trustworthy, a court must find that the declarant of
the . . . statement ‘was particularly likely to be telling the truth when the
statement was made.’” Id. (alteration in original) (citations and internal
quotation marks omitted). Plaintiffs argued to the district court and on appeal
that Trey had no motive to fabricate the statements and that the
“contemporaneous nature and consistency” of Trey’s statements demonstrate
their trustworthiness.        However, Plaintiffs’ unsubstantiated assertions are
insufficient to provide the court with the indicia of reliability and
trustworthiness necessary to invoke Rule 807. We conclude that the district
court did not abuse its discretion in excluding Plaintiffs’ hearsay evidence.5


       5
        On appeal, Plaintiffs argue that the magistrate judge reversibly erred in granting
Defendants’ motion for a protective order that quashed Plaintiffs’ subpoena to City-Tel for the
telephone records and recordings of Trey’s telephone conversations during his incarceration.

                                              14
  Case: 11-30814       Document: 00511976800          Page: 15      Date Filed: 09/06/2012



                                       No. 11-30814

        3. Claims Against Warden Toloso and Assistant Warden Sims
        On appeal, Plaintiffs present two arguments to demonstrate that Warden
Toloso and Assistant Warden Sims were deliberately indifferent to Trey’s
medical needs in violation of the Eighth Amendment. First, Plaintiffs argue that
Warden Toloso intimidated Trey, preventing him from reporting his medical
problems and receiving medical treatment.                 Second, Plaintiffs argue that
Warden Toloso and Assistant Warden Sims “knew that Trey had a serious
medical problem that was scheduled to be addressed [by the endoscopy
procedure], yet they were knowingly, willingly, and deliberately indifferent to it.”
        First, we conclude that Plaintiffs’ argument regarding Warden Toloso’s
intimidation of Trey fails because Plaintiffs’ sole evidence supporting this
contention was properly excluded by the district court as inadmissible hearsay.
Second, we conclude that Plaintiffs’ argument relating to Warden Toloso and
Assistant Warden Sims allowing Trey to forgo his endoscopy also fails. Through
the March 9 kite communication form and the March 10 refusal of medical
treatment form, Trey explicitly and voluntarily chose to forgo the endoscopy
procedure. Plaintiffs assert that the prison officials had an obligation to ensure
that Trey underwent the endoscopy even if Trey did not want to submit to the
procedure. However, Plaintiffs fail to cite any authority for the proposition that
Warden Toloso and Assistant Warden Sims were deliberately indifferent to
Trey’s health by not forcing Trey to undergo a medical procedure against his
will.
        The district court correctly concluded that the summary judgment
evidence indicates that Trey saw a medical provider each time he reported a



Plaintiffs contend that this evidence was “crucial to establish [their] claims,” yet Plaintiffs’
own correspondence with City-Tel indicates that records of these calls were no longer active.
We conclude that any error in the magistrate judge’s order was harmless. See Bocanegra, 320
F.3d at 584 (stating that evidentiary rulings are reviewed under the harmless error standard).

                                              15
  Case: 11-30814        Document: 00511976800          Page: 16     Date Filed: 09/06/2012



                                        No. 11-30814

medical problem. Plaintiffs have not put forward any summary judgment
evidence that Warden Toloso or Assistant Warden Sims knew that Trey had a
serious medical need that was not being addressed, let alone that they prevented
Trey from receiving medical care. Thus, the district court properly concluded
that Warden Toloso and Assistant Warden Sims were not deliberately
indifferent to Trey’s medical needs.
       4. Claim Against Sheriff Deen
       Plaintiffs also asserted a Monell municipal liability claim against Sheriff
Deen, alleging that Sheriff Deen’s “policy of deliberate indifference” was the
moving force behind the harm to Trey. See Monell v. Dep’t of Soc. Servs. of
N.Y.C., 436 U.S. 658, 690-91 (1978). “A claim of municipal liability under
Section 1983 requires proof of three elements: a policymaker; an official policy;
and a violation of constitutional rights whose moving force is the policy or
custom.” Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849, 866 (5th Cir. 2012) (en
banc) (citation and internal quotation marks omitted).                    The district court
correctly concluded that this claim fails because Plaintiffs did not create a
genuine issue of material fact regarding whether Trey suffered a constitutional
violation. “[T]here can be no § 1983 [municipal] liability unless [the plaintiff]
suffered a constitutional violation.” Id. at 867.6
C. Louisiana State-Law Negligence Claims
       1. Applicable Law




       6
         Plaintiffs argue on appeal that the district court erred in prohibiting the deposition
of Sheriff Deen. Plaintiffs assert that Sheriff Deen, as “chief policy maker,” had knowledge
relevant to Plaintiffs’ case. We conclude that Plaintiffs cannot show that the district court’s
evidentiary ruling affected their substantial rights. See Bocanegra, 320 F.3d at 584. In their
appellate brief, Plaintiffs state that the “evidence [they] sought to obtain from the Sheriff was
necessary to demonstrate [Monell] liability.” However, as explained above, Plaintiffs’ Monell
claim against Sheriff Deen already fails because Plaintiffs failed to create a genuine issue of
material fact regarding whether Trey suffered a constitutional violation.

                                               16
  Case: 11-30814      Document: 00511976800         Page: 17     Date Filed: 09/06/2012



                                      No. 11-30814

       Under Louisiana law, the “standard of care imposed upon the Department
of Public Safety and Corrections in providing for the medical needs of inmates
is that those services be reasonable.” Robinson v. Stalder, 734 So. 2d 810, 812
(La. Ct. App. 1999) (footnote and citations omitted). In order to establish a
negligence claim, Plaintiffs must show that Defendants failed to provide Trey
with reasonable medical care and that Defendants’ substandard conduct was the
cause of Trey’s untimely death. See Mathieu v. Imperial Toy Corp., 646 So. 2d
318, 322 (La. 1994).
       2. Analysis
       In granting summary judgment in favor of Defendants on Plaintiffs’
negligence claims, the district court determined that (1) Plaintiffs did not
present any evidence that Defendants failed to provide reasonable medical care
to Trey and (2) Plaintiffs did not present any evidence that Defendants caused
Trey’s death. On appeal, Plaintiffs assert that Defendants were negligent
because Trey was not seen by a physician every time he reported a medical
problem. Plaintiffs also argue that Warden Toloso intimidated Trey, causing
him not to seek medical treatment. Plaintiffs further contend that the district
court erred in striking their expert evidence on causation.
       We first consider whether Plaintiffs created a genuine issue of material
fact as to causation. In order to do so, we must address whether the district
court abused its discretion in striking the affidavit of Dr. Prather, Plaintiffs’
expert on causation. The district court granted Defendants’ motion to strike Dr.
Prather’s affidavit because Plaintiffs disclosed his affidavit five months after the
Rule 26 disclosure deadline in the court’s scheduling order.7                 On appeal,
Plaintiffs concede that they erroneously designated Dr. Prather as a treating
physician and that they should have disclosed Dr. Prather’s report by the

       7
        Rule 26 requires disclosures for a witness who is “retained or specially employed to
provide expert testimony in the case.” FED. R. CIV. P. 26(a)(2)(B).

                                            17
  Case: 11-30814      Document: 00511976800         Page: 18     Date Filed: 09/06/2012



                                      No. 11-30814

deadline in the scheduling order. However, Plaintiffs assert that we should
reverse the district court’s order because: (1) Plaintiffs believed in good faith that
Dr. Prather was a treating physician and thus exempt from the disclosure
deadline; (2) Dr. Prather’s testimony is crucial to the success of their claims; and
(3) no harm or prejudice resulted to Defendants from the lack of disclosure.
       We have stated that a district court has broad discretion to enforce the
deadlines in its scheduling order. See Turnage v. Gen. Elec. Co., 953 F.2d 206,
208 (5th Cir. 1992) (noting that “a trial court’s decision to exclude evidence as a
means of enforcing a [scheduling] order must not be disturbed absent a clear
abuse of discretion”) (citation and internal quotation marks omitted). In striking
Dr. Prather’s affidavit, the district court fairly enforced a scheduling order
deadline. Furthermore, the district court was in the best position to assess
Plaintiffs’ arguments regarding their good faith, the significance of the evidence
to their case, and the potential prejudice to Defendants, and the district court
rejected these arguments. We therefore conclude that the district court did not
abuse its discretion in striking Dr. Prather’s affidavit.
       Dr. Prather’s excluded affidavit was Plaintiffs’ sole evidence on causation,
and therefore Plaintiffs provided no summary judgment evidence on this issue.
Because Plaintiffs failed to create a genuine issue of material fact as to
causation, which is an element of their Louisiana state-law negligence claim,
Plaintiffs’ negligence claims fail. See Celotex Corp. v. Catrett, 477 U.S. 317,
322-23 (1986) (stating that summary judgment is proper “against a party who
fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of
proof at trial”). We conclude that the district court did not err in granting
summary judgment to Defendants on Plaintiffs’ negligence claims.8

       8
         Plaintiffs argue on appeal that the district court erred in denying their motion to
strike the testimony of Dr. Grosbach, Defendants’ expert on causation. Dr. Grosbach opined

                                            18
  Case: 11-30814       Document: 00511976800         Page: 19     Date Filed: 09/06/2012



                                       No. 11-30814

D. Denial of Visitation and Denial of Familial Association Claims
       1. Qualified Immunity
       “The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two
important interests—the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment,
distraction, and liability when they perform their duties reasonably.” Id. A
public official is entitled to qualified immunity unless the plaintiff demonstrates
“(1) that the official violated a statutory or constitutional right, and (2) that the
right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft
v. al–Kidd, 131 S. Ct. 2074, 2080 (2011). The Supreme Court has stated that the
courts may “exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Pearson, 555 U.S. at 236.
       “A Government official’s conduct violates clearly established law when, at
the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently
clear’ that every ‘reasonable official would have understood that what he is doing
violates that right.’” Ashcroft, 131 S. Ct. at 2083 (alterations in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[T]he term clearly
established does not necessarily refer to commanding precedent that is factually
on all-fours with the case at bar, or that holds the very action in question


that, based on the “doubling times” of colon cancer, Trey’s cancer was already terminal in
March 2008. Plaintiffs assert that Dr. Grosbach failed to demonstrate the reliability of his
methodology, particularly with respect to the “doubling times.” We need not decide this issue.
As explained above, because Plaintiffs failed to create a genuine issue of material fact as to
causation, Plaintiffs’ negligence claims fail.

                                             19
  Case: 11-30814       Document: 00511976800    Page: 20    Date Filed: 09/06/2012



                                   No. 11-30814

unlawful.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256-57 (5th Cir. 2005)
(citations and internal quotation marks omitted). A right is clearly established
“if in light of pre-existing law the unlawfulness [is] apparent.” Id. at 257
(alteration in original, citations and internal quotation marks omitted); see id.
(“[T]he unlawfulness of their alleged conduct is readily apparent from relevant
precedent in sufficiently similar situations.”) (citations omitted). The Supreme
Court has recently stated that, for a right to be “clearly established,” “[w]e do not
require a case directly on point, but existing precedent must have placed the
statutory or constitutional question beyond debate.” Ashcroft, 131 S. Ct. at 2083
(citations omitted).
      2. Analysis
      Trey was diagnosed with terminal colon cancer at LSU Hospital on May
27, 2008.    Plaintiffs assert that Defendants, particularly Warden Toloso,
unlawfully precluded Trey’s family from visiting Trey in LSU Hospital for
approximately five days after Trey’s diagnosis. Plaintiffs contend that they had
to seek the assistance of a retired judge, who obtained an order permitting
visitation on June 1, 2008. Plaintiffs assert that they began visiting Trey daily
at LSU Hospital on June 2. Based on these allegations, Plaintiffs assert two
separate constitutional claims. First, in Trey’s survival action, Trey’s daughter
asserts a claim under § 1983 for the denial of visitation in violation of Trey’s
First Amendment rights. Second, Trey’s parents assert a claim under § 1983 for
the violation of their rights to familial association and parenthood in violation
of their First and Fourteenth Amendment rights. The district court granted
summary judgment in favor of the Defendants on these constitutional claims.
We will address each claim in turn.
      With respect to the denial of visitation claim, Plaintiffs argue that the
district court erred in failing to recognize Trey’s First Amendment right to
visitation with family and friends.       In support of their First Amendment

                                         20
  Case: 11-30814        Document: 00511976800          Page: 21     Date Filed: 09/06/2012



                                        No. 11-30814

argument, Plaintiffs only cite to one case, Washington v. Reno, 35 F.3d 1093 (6th
Cir. 1994), which stands for the general proposition that prisoners “retain their
First Amendment rights to communicate with family and friends.” Id. at 1100
(citation omitted). However, the Reno court’s broad proposition of law does not
support Plaintiffs’ argument that an inmate has a clearly established right to
visitation. In order to show that a right is “clearly established,” Plaintiffs must
show that “existing precedent [has] placed the statutory or constitutional
question beyond debate.” Ashcroft, 131 S. Ct. at 2083 (citations omitted).
Because Plaintiffs have failed to point to any caselaw that indicates that a
prisoner has a right to visitation, Plaintiffs have not demonstrated that
Defendants violated Trey’s clearly established rights. Therefore, we determine
that Defendants are entitled to qualified immunity on this claim. See id. at 2080
(noting that an official is entitled qualified immunity unless plaintiff
demonstrates “that the right was ‘clearly established’ at the time of the
challenged conduct”) (citation omitted). We conclude that the district court
properly granted summary judgment in favor of Defendants on the denial of
visitation claim.9
       With respect to the denial of familial association claim, Trey’s parents
argue that Defendants deprived them of “their constitutional right to familial
association with their son . . . by depriving them of their right to be with him
during that time of great need.” On appeal, Plaintiffs argue that the district
court erred in failing to recognize this viable constitutional claim under the First
and Fourteenth Amendments. However, Plaintiffs have failed to point to any


       9
         In this case, we do not reach the issue of whether a prisoner has a constitutional right
to visitation. However, we note that, in a case where a prisoner was denied visitation with his
mother, we stated that a prisoner has “no constitutional right to visitation privileges.” Berry
v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (citation omitted); see also McCray v. Sullivan, 509
F.2d 1332, 1334 (5th Cir. 1975) (stating that, in the context of the denial of conjugal visits, a
prisoner does not have a constitutional right to visitation).

                                               21
  Case: 11-30814        Document: 00511976800          Page: 22     Date Filed: 09/06/2012



                                        No. 11-30814

caselaw that indicates that a parent of an adult child has a right to visitation
with that child.10 Therefore, Plaintiffs have not demonstrated that Defendants
violated a clearly established right to familial association. Ashcroft, 131 S. Ct.
at 2083. Thus, we conclude that Defendants are entitled to qualified immunity
and that the district court properly granted summary judgment to Defendants
on this familial association claim.
E. Subrogation and Bystander Claims
       We conclude that Plaintiffs have not adequately briefed their arguments
relating to their subrogation and bystander claims. With respect to the district
court’s dismissal of their subrogation claims, Plaintiffs merely mentioned this
issue in the “Statement of Issues” section of their appellate brief. Because
Plaintiffs failed to present any argument relating to this issue in the argument
section of their appellate brief, this issue is waived. See Gen. Universal Sys. v.
HAL, Inc., 500 F.3d 444, 454 (5th Cir. 2007); Justiss Oil Co. v. Kerr-McGee Ref.
Corp., 75 F.3d 1057, 1067 (5th Cir. 1996). Next, with regard to the district
court’s dismissal of their bystander claims, Plaintiffs raised this issue for the
first time in their reply brief. We do not consider arguments first raised in a
reply brief. See United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).
                                   III. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       10
          For instance, Plaintiffs cite Kipps v. Caillier, 205 F.3d 203, 206 (5th Cir. 2000) (on
denial of rehearing en banc), where we recognized “[a father’s] constitutional right to familial
association with his son (i.e, his right to preserve the integrity of that family relationship).”
However, Kipps does not relate to the facts of the instant case. In Kipps, a father was fired
from his job because of his son’s decision to play football for LSU. Id.

                                               22
