                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MIRIAM MENDIOLA-                     No. 14-15189
MARTINEZ,
          Plaintiff-Appellant,          D.C. No.
                                  2:11-cv-02512-DGC
              v.

JOSEPH M. ARPAIO, Maricopa             OPINION
County Sheriff; UNKNOWN
PARTIES, named as: Jane Doe
Officers 1–5, John Doe
Officers 1–5, Jane Doe Doctors
1–5, John Doe Doctors 1–5,
Jane Doe Nurses 1–5, and John
Doe Nurses 1–5 (in their
individual capacities); COUNTY
OF MARICOPA, as named in
amended complaint;
MARICOPA COUNTY SPECIAL
HEALTH CARE DISTRICT,
named Maricopa County
Special Health District on
amended complaint,
         Defendants-Appellees.


     Appeal from the United States District Court
              for the District of Arizona
     David G. Campbell, District Judge, Presiding
2               MENDIOLA-MARTINEZ V. ARPAIO

           Argued and Submitted February 11, 2016
                  San Francisco, California

                     Filed September 12, 2016

      Before: Barry G. Silverman, Raymond C. Fisher,
          and Richard C. Tallman, Circuit Judges.

                    Opinion by Judge Tallman


                            SUMMARY*


                       Prisoner Civil Rights

    The panel affirmed in part and vacated in part the district
court’s summary judgment and award of costs in favor of
defendants and remanded in an action brought under 42
U.S.C. §§ 1981 & 1983, by a former female prisoner who
alleged that her constitutional rights were violated when,
among other things, she was shackled and restrained during
her labor and postpartum recovery.

   The panel vacated summary judgment for the County
Defendants on the shackling claims as they related to
shackling while plaintiff was in labor and leaving the
Maricopa County Medical Center after the birth of her son, as
well as the separately pleaded claim under Monell v. New
York City Department of Social Services, 436 U.S. 658
(1978), insofar as it concerns these alleged shackling

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             MENDIOLA-MARTINEZ V. ARPAIO                     3

incidents. The panel held that plaintiff presented sufficient
evidence for a reasonable jury to conclude that by restraining
her when she was in labor and postpartum recovery, the
County Defendants exposed her to a substantial risk of
serious harm. The panel further determined that a jury could
conclude that the County Defendants were aware of the risk
caused by restraining an inmate in labor and deliberately
indifferent to that risk by restraining her during transport to
the Medical Center where she had her baby. The panel
remanded for a jury to determine whether the risk posed to
plaintiff by the County’s restraint policy was justified, or
whether the County Defendants went too far.

    The panel affirmed the district court’s summary judgment
for the County Defendants on plaintiff’s remaining claims
regarding a postpartum leg tether, medical supplies,
pregnancy diet and nutrition, and equal protection. Because
the County Defendants were no longer the prevailing party on
all of their claims, the panel vacated the cost award in favor
of the County Defendants and remanded to the district court
to determine those costs.

    The panel affirmed summary judgment in favor of the
Medical Center on all of plaintiffs’ claims and likewise
affirmed the cost award in its favor.
4            MENDIOLA-MARTINEZ V. ARPAIO

                        COUNSEL

Joy Bertrand (argued), Joy Bertrand Esq., L.L.C., Scottsdale,
Arizona, for Plaintiff-Appellant.

Eileen Dennis GilBride (argued) and William R. Jones, Jr.,
Jones, Skelton & Hochuli, P.L.C., Phoenix, Arizona, for
Defendant-Appellee Maricopa County Special Health Care
District.

Michele M. Iafrate (argued), Iafrate & Associates, Phoenix,
Arizona, for Defendants-Appellees Joseph Arpaio, Maricopa
County Sheriff, and Maricopa County.


                        OPINION

TALLMAN, Circuit Judge.

    We recently recognized that only rarely will prisoners’
medical needs “genuinely clash” with the security concerns
of prison personnel. Chess v. Dovey, 790 F.3d 961, 974 (9th
Cir. 2015). That discord may be present when the prisoner is
a woman in labor. Miriam Mendiola-Martinez was in the
custody of Maricopa County for a nonviolent offense when
she gave birth to her son. After her release, she filed suit
under 42 U.S.C. §§ 1981 & 1983, alleging that her
constitutional rights were violated when, among other things,
she was shackled and restrained during labor and postpartum
recovery. Mendiola-Martinez brought her claims against
Maricopa County and Sheriff Joe Arpaio (collectively “the
County Defendants”), the Maricopa County Special Health
                 MENDIOLA-MARTINEZ V. ARPAIO                          5

Care District (“the Medical Center”) where she had her baby,1
and individual John and Jane Doe defendants. The district
court granted summary judgment for the County Defendants
and the Medical Center on all of Mendiola-Martinez’s claims,
and taxed costs against her. She now appeals the summary
judgment orders and the cost awards, both of which we have
jurisdiction to review under 28 U.S.C. § 1291.

     We are presented with an important and complex issue of
first impression in our circuit: whether the U.S. Constitution
allows law enforcement officers to restrain a female inmate
while she is pregnant, in labor, or during postpartum
recovery. We hold today that in this case, the answer to that
question depends on factual disputes a properly instructed
jury must resolve. We therefore vacate and remand the
district court’s grant of summary judgment for the County
Defendants on most of Mendiola-Martinez’s shackling
claims. We affirm summary judgment in favor of the County
Defendants on the remaining claims. We also affirm
summary judgment on all claims against the Medical Center.
Regarding costs, we vacate the cost award to the County


   1
       According to the Maricopa Special Health Care District:

          The Maricopa County Special Health Care District
          Board of Directors is the governing body for Maricopa
          Integrated Health System (“MIHS”). MIHS is the
          health care safety net for citizens of Maricopa County,
          and provides access to high-quality services to
          everyone in Maricopa County who needs them,
          regardless of the availability of insurance coverage or
          economic status. MIHS runs many facilities in
          Maricopa County, including the Maricopa Medical
          Center, a full-service hospital where Plaintiff delivered
          her baby.
6               MENDIOLA-MARTINEZ V. ARPAIO

Defendants and remand, but affirm the cost award for the
Medical Center.

                                     I

    When Mendiola-Martinez was arrested in Arizona for
forgery and identity theft on October 19, 2009, she was 6-
months pregnant. Because she could not prove she was a
legal resident of the United States, she was detained under the
Arizona Bailable Offenses Act, Ariz. Rev. Stat. Ann. § 13-
3961(A)(5), before we later ruled it unconstitutional. See
Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 792 (9th Cir.
2014) (en banc), cert denied, 135 S. Ct. 2046 (2015). On
December 10, 2009, she pleaded guilty to solicitation to
commit forgery. Less than two weeks later, while still in the
custody of the Maricopa County Sheriff’s Office (“MCSO”),
Mendiola-Martinez gave birth to a healthy boy. Days later,
she was sentenced to time-served and released.

    Prior to her release, Mendiola-Martinez was detained at
Maricopa County’s Estrella Jail in Phoenix, Arizona. At the
Estrella Jail, Mendiola-Martinez was given a “modified diet”
specifically for pregnant women. This diet consisted of the
regular inmate diet, a prenatal vitamin, and an additional 32
ounces of milk.2 In the affidavit supporting her motion for
summary judgment, Mendiola-Martinez stated that she was
not given enough food while in custody and that the only
water in her cell came from the sink next to the toilet in her


    2
      MCSO’s “Modified Diets” policy states that for pregnant women,
the regular inmate diet “shall be supplemented with an additional four (4)
cartons of milk per day (one [1] at breakfast, one [1] at lunch, and two [2]
at dinner.” The County Defendants assert that the pregnancy diet also
included a prenatal vitamin.
              MENDIOLA-MARTINEZ V. ARPAIO                        7

cell. She asserted that due to those conditions, she was
worried that her unborn baby would not survive. Mendiola-
Martinez also contended that the MCSO failed to provide her
water and food during the “extended periods of time” she was
transported from the Estrella Jail to court.

    On December 20, 2009, two weeks before her expected
delivery date, Mendiola-Martinez began to have
contractions.3 The medical staff at Estrella Jail determined
that she was “not in early labor,” but ordered her transported
to the Medical Center for examination. During the
ambulance ride to the hospital, Mendiola-Martinez’s wrists
were handcuffed in front of her. MCSO officers also
shackled her ankles with plastic cuffs connected by a metal
chain. After Mendiola-Martinez arrived at the Medical
Center, an MCSO officer placed her in restraints while
hospital staff utilized a fetal monitor to check on her baby.
The Medical Center staff monitored her for two hours,
discharged her, and ordered her transported back to Estrella
Jail.

    The next day, December 21, 2009, the medical staff at
Estrella once again ordered her transported to the Medical
Center “to rule out active labor.” Mendiola-Martinez and the
County Defendants dispute whether she was shackled in the
ambulance this second time. Mendiola-Martinez testified at
her deposition that she was not restrained. But the MCSO
deputy who rode with her in the ambulance, Stacey Hertig,
testified that Mendiola-Martinez was placed on a gurney
before she was lifted into the ambulance and that her hands
were cuffed in front of her.

   3
     The Medical Center records indicate that on December 20, 2009,
Mendiola-Martinez was 38 weeks and four days pregnant.
8            MENDIOLA-MARTINEZ V. ARPAIO

    Although Officer Hertig first testified in her deposition
that she did not recall whether the EMT in the ambulance
asked her to remove the cuffs, she later testified that she
removed them at the EMT’s request. Officer Hertig also
testified that Mendiola-Martinez was “crying and making a
lot of noise and movement while we were in the ride.”
Mendiola-Martinez “kept holding her belly” and appeared
uncomfortable. According to Officer Hertig, Mendiola-
Martinez “was in a lot of pain.” In her Incident Report
completed about the transport to the hospital, Officer Hertig
wrote that “Mendiola-Martinez was in active labor.”

    After Mendiola-Martinez arrived at the Medical Center,
Dr. Eve LaValley confirmed that she was in “active labor.”
Around 5:00 p.m. that day, at the Medical Center, Mendiola-
Martinez gave birth via cesarean section (“C-section”) to a
healthy boy she named “Angel.” Officer Hertig was in the
delivery room when the baby was born. Mendiola-Martinez
was not shackled or restrained during the procedure.

    After the C-section, Mendiola-Martinez was taken to a
post-anesthesia care unit. In her recovery room, an armed
MCSO officer placed a grey plastic cuff around Mendiola-
Martinez’s ankle that was connected to a metal chain. The
other end of the chain was then attached to her hospital bed.
The chain, which was six to eight feet long, allowed her to
walk around her hospital room and to the bathroom. But
when she walked, she had to drag the chain, which she
alleges aggravated her C-section incision and caused her
additional pain. An armed MCSO officer stayed with her in
the recovery room.

     On December 22, 2009, Mendiola-Martinez’s friend came
to the hospital to take Angel for the remainder of his mother’s
              MENDIOLA-MARTINEZ V. ARPAIO                     9

detention. While Angel was at the hospital, Mendiola-
Martinez saw him “at least three times,” for 15–25 minutes at
a time. She did not breast feed him during these visits
because, according to Mendiola-Martinez, the nurses had
already fed him. Mendiola-Martinez never requested a breast
pump to expel her breast milk, and no one at the hospital or
the jail clinic prescribed or gave her one.

    The next day, December 23, 2009, two MCSO officers
came to the hospital to take Mendiola-Martinez to court. The
officers removed the restraints from her ankle to allow her to
change into her jail uniform. When she finished changing, an
officer attached handcuffs to her wrists and metal cuffs to her
ankles. The handcuffs were three to four inches apart. In her
jail uniform, socks, and cuffs, Mendiola-Martinez was
escorted to the nurse’s office on a lower floor where other
MCSO detainees were waiting and lined up. Still in cuffs and
under escort, she had to return to her hospital room to take
her medication. She then returned downstairs, where officers
chained her to other detainees, and led her out of the building.
No one gave her a wheelchair. Mendiola-Martinez was
subsequently transported to a jail clinic to continue her
recovery. Within two days of leaving the Medical Center, she
was sentenced to time served, and released from MCSO
custody.

                               A

    While Mendiola-Martinez was in jail, the MCSO had in
effect a written policy regarding the “Transportation and
Restraint of Prisoners and Inmates” (“Restraint Policy”). The
Restraint Policy mandated that MCSO officers restrain all
inmates during transport, including those who are “sick or
injured.” While the type of restraint was discretionary based
10           MENDIOLA-MARTINEZ V. ARPAIO

on the prisoner’s condition, the use of a restraint was not.
The Restraint Policy provided an exception to the general rule
that all inmates must be restrained while outside of the jail,
however, when “[m]edical procedures require the absence of
restraints during treatment.”

    The MCSO Restraint Policy also applied to the halls and
rooms of the Medical Center, a full-service hospital
independent from the MCSO. Under the MCSO Restraint
Policy, inmates under guard at the Medical Center had to be
restrained “at all times,” except when “removal of restraints
is determined to be necessary during treatment or
examination by the attending physician.” Upon arrival at the
Medical Center, inmates would be transferred to the custody
of a “Ward-41” officer. The Medical Center apparently had
its own policy or practice of generally deferring to law
enforcement regarding when inmates were to be restrained at
the facility.

    Although Officer Hertig testified during her deposition
that the MCSO had a policy of not using “leg irons” on
pregnant women, the MCSO Restraint Policy did not contain
an exemption for pregnant women, women in labor, or
women in postpartum recovery. Four days before Mendiola-
Martinez had her baby, however, the MCSO issued a
clarifying “Restraints and Labor” directive dictating when
officers could use restraints on women in labor. This
memorandum (“active-labor memorandum”), issued by the
Sheriff’s Transportation Division to all staff, including those
working in Ward-41, stated:

       Regarding restraints and epidurals in labor
       and delivery it will be our practice to remove
       the restraints when an epidural is used or
               MENDIOLA-MARTINEZ V. ARPAIO                         11

        during the stage of active labor. We will also
        remove the restraints when the Doctor orders
        them removed during the active stages of
        labor. This is to protect the mother and baby.

        Please brief your staff on this immediately as
        we do not want the liability of a restrained
        inmate giving birth which resulted in any
        injury to the mother and child.

    The MCSO’s Restraint Policy and the treatment
Mendiola-Martinez received—as a pregnant inmate in her
third trimester, as an inmate in labor, and as an inmate in
postpartum recovery—form the bases of her lawsuit against
the County Defendants and the Medical Center.

                                  B

   Two years after she was released from MCSO custody,
Mendiola-Martinez brought a civil rights action against the
County Defendants, the Maricopa County Board of
Supervisors,4 the Medical Center, and, in their individual
capacities, John and Jane Doe Officers 1–5, Nurses 1–5, and
Doctors 1–5. Her amended complaint states that these Does
would “be identified in the course of discovery.” None ever
were.

    Mendiola-Martinez’s amended complaint alleged
42 U.S.C. §§ 1981 & 1983 violations for the treatment she
received while in MCSO custody. Specifically, her amended


    4
      On November 19, 2012, the district court granted the Maricopa
County Board of Supervisors’ motion to dismiss. Thus, the Board is not
a party to this appeal.
12               MENDIOLA-MARTINEZ V. ARPAIO

complaint alleged that all of the defendants were deliberately
indifferent to her serious medical needs in violation of the
Eighth5 and Fourteenth Amendments by using restraints and
shackles on her while she was in labor and postpartum
recovery or acquiescing to the use of those restraints. The
amended complaint further alleged that the restraints the
MCSO officers used on Mendiola-Martinez constituted cruel
and unusual punishment in violation of the Eighth and
Fourteenth Amendments. We refer to these two groups of
claims as the “shackling claims.”

    Mendiola-Martinez also alleged that all of the defendants
were deliberately indifferent to her serious medical needs in
violation of the Eighth Amendment by failing to provide her
with medically recommended and related supplies. These
claims are referred to herein as the “breast pump claims.”

   The amended complaint also included a single allegation,
which we will refer to as the “nutrition claim,” that the
County Defendants were deliberately indifferent to Mendiola-


     5
       Eighth Amendment protections apply only once a prisoner has been
convicted of a crime, while pretrial detainees are entitled to the potentially
more expansive protections of the Due Process Clause of the Fourteenth
Amendment. See Kingsley v. Henrickson, 135 S. Ct 2466, 2475 (2015)
(stating that “pretrial detainees (unlike convicted prisoners) cannot be
punished at all”); see also Castro v. County of Los Angeles, No. 12-56829,
2016 WL 4268955, at *4–7 (9th Cir. Aug. 15, 2016). According to her
complaint, Mendiola-Martinez pleaded guilty to solicitation to commit
forgery on December 10, 2009, but the record is unclear whether she was
convicted before she was first taken to the Medical Center on December
20, 2009. Because Mendiola-Martinez’s complaint alleges Eighth
Amendment violations, we assume her allegations pertain to events
transpiring after she was convicted. We therefore analyze her claims as
they are alleged—under the Eighth Amendment, rather than the Due
Process Clause.
               MENDIOLA-MARTINEZ V. ARPAIO                        13

Martinez’s serious medical needs in violation of the Eighth
Amendment by denying her proper pregnancy nutrition.

    An additional count in the amended complaint alleged
that the County Defendants and the Medical Center were
liable for any constitutional violations caused by their
respective policies and practices under Monell v. New York
City Department of Social Services, 436 U.S. 658 (1978).
Mendiola-Martinez alleged that the County Defendants’ and
the Medical Center’s policies caused physical, psychological,
and emotional injury. Our references to Mendiola-Martinez’s
“shackling claims,” “breast pump claims,” and “nutrition
claim” encompass her separately pleaded claim for Monell
liability for the policies and practices that she alleged directly
and proximately caused each of these alleged violations of
her constitutional rights.

    Mendiola-Martinez, who is Hispanic, also brought an
equal protection claim against the County Defendants,
alleging that the restraint policies regarding inmates in labor
and postpartum recovery violated her right to be free from
discrimination based on her national origin.

    The County Defendants and the Medical Center each filed
motions for summary judgment.6 Mendiola-Martinez filed
separate motions for partial summary judgment—one against
the County Defendants, and another against the Medical
Center. The district court granted summary judgment for the
County Defendants and the Medical Center, denied
Mendiola-Martinez’s motions, and directed the clerk to close



    6
      Theses motions did not include the individual John and Jane Doe
Officers, Doctors, and Nurses.
14             MENDIOLA-MARTINEZ V. ARPAIO

the case.7 The district court clerk later taxed costs against
Mendiola-Martinez, amounting to $1,971 for the Medical
Center and $936 for the County Defendants. Mendiola-
Martinez timely appealed the district court’s grant of
summary judgment on January 31, 2014, and on April 22,
2014, amended her Notice of Appeal to include the cost
awards.

                                  II

    We review grants of summary judgment de novo.
Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013). In
doing so, we must determine whether, viewing the facts in the
light most favorable to Mendiola-Martinez as the non-moving
party, any genuine issues of material fact exist, and whether
the district court correctly applied the substantive law. Id. If
a reasonable jury could return a verdict for Mendiola-
Martinez, summary judgment is improper. See Lemire v. Cal.
Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir.
2013). If Mendiola-Martinez fails to make a sufficient
showing to support an element of her claims, summary
judgment is appropriate. See Celotex Corp. v. Catrett,
477 U.S. 317, 322–23 (1986).

    We review the district court’s cost awards for an abuse of
discretion. See Ass’n of Mexican-American Educators v.
California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc).




     7
       The district court’s summary-judgment order does not mention any
of the individual Doe defendants. Mendiola-Martinez apparently does not
appeal the dismissal of these individual defendants.
               MENDIOLA-MARTINEZ V. ARPAIO                         15

                                 III

    Mendiola-Martinez asserts that the County Defendants’
policy of shackling women during labor and postpartum
recovery violated her rights under the Eighth and Fourteenth
Amendments. She further contends that because the Medical
Center had a policy of acquiescing to the shackling during her
postpartum recovery, it too violated her rights.

    Because Mendiola-Martinez seeks to hold the County
Defendants and the Medical Center liable for constitutional
violations as “persons” under § 1983, she must satisfy the
requirements for municipality liability established by Monell
and its progeny.8 In Monell, the Supreme Court held that
while a plaintiff could sue a municipality or local government
unit under § 1983, these entities were not liable for the
malfeasance of their employees. 436 U.S. at 690–91 (“[I]n
other words, a municipality cannot be held liable under
§ 1983 on a respondeat superior theory.”) Instead, to
establish municipal liability under § 1983, a plaintiff must
show “a direct causal link between a municipal policy or
custom and the alleged constitutional deprivation.” Castro v.
County of Los Angeles, No. 12-56829, 2016 WL 4268955, at
*10 (quoting City of Canton v. Harris, 489 U.S. 378, 385
(1989) (internal quotations omitted). “Where a plaintiff
claims that a municipal action itself violates federal law,” as
Mendiola-Martinez does here by directly challenging what
she contends are policies of the County Defendants and the
Medical Center, “the issues of fault and causation are
straightforward.” Bd. of Cty. Comm’rs of Bryan Cty., Okl. v.
Brown, 520 U.S. 397, 404 (1997). In such situations, “proof

     8
       Mendiola-Martinez does not appeal the apparent dismissal of the
individual Jane and John Doe defendants. See supra notes 6 & 7.
16              MENDIOLA-MARTINEZ V. ARPAIO

that the municipality’s decision was unconstitutional would
suffice to establish that the municipality itself was liable for
the plaintiff’s constitutional injury.” Id. at 405.9

                                     A

    Mendiola-Martinez’s alleged constitutional injuries stem
from the Eighth Amendment’s prohibition on cruel and
unusual punishment, which prevents government officials
from acting with deliberate indifference to a prisoner’s health
and safety, see Hope v. Pelzer, 536 U.S. 730, 737–38 (2002),
or serious medical needs, see Estelle v. Gamble, 429 U.S. 97,
104 (1976).10 To prove a violation of the Eighth Amendment,
a plaintiff must show that the defendant: (1) exposed her to a
substantial risk of serious harm; and (2) was deliberately
indifferent to her constitutional rights. See Farmer v.
Brennan, 511 U.S. 825, 837, 842 (1994).

     First, a plaintiff must prove that she suffered a
“sufficiently serious” deprivation, such as “incarcerat[ion]
under conditions posing a substantial risk of serious harm,”
id., or that she had a “serious medical need,” Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006). This inquiry “is a
question of fact, and as such must be decided by a jury if
there is any room for doubt.” Lemire, 726 F.3d at 1075–76.


     9
      Alternatively, “a plaintiff seeking to establish municipal liability on
the theory that a facially lawful municipal action has led an employee to
violate a plaintiff’s rights must demonstrate that the municipal action was
taken with ‘deliberate indifference’ as to its known or obvious
consequences.” Brown, 520 U.S. at. 407 (citing Canton, 489 U.S. at 388).
     10
        These duties under the Eighth Amendment are imposed on the
states via the Fourteenth Amendment. Wilson v. Seiter, 501 U.S. 294,
296–97 (1991).
                MENDIOLA-MARTINEZ V. ARPAIO                             17

When assessing whether a plaintiff was exposed to a
substantial risk of serious harm, we may look to whether the
risk “is not one that today’s society chooses to tolerate.”
Helling v. McKinney, 509 U.S. 25, 36 (1993). A medical
need is serious when the failure to treat it could result in
significant injury or the unnecessary and wanton infliction of
pain. Jett, 439 F.3d at 1096.

    The plaintiff then must prove that the defendant was
deliberately indifferent to her health and safety or serious
medical needs. See Farmer, 511 U.S. at 837. Because
Mendiola-Martinez brings her claims under § 1983, she must
establish “the state of mind required to prove the underlying
violations,” even though her claims are against entity
defendants. Brown, 520 U.S. at 405. While a claim of
deliberate indifference against a prison official employs a
subjective standard, Farmer, 511 U.S. at 837, we recently
held that an objective standard applies to municipalities “for
the practical reason that government entities, unlike
individuals, do not themselves have states of mind,” Castro,
2016 WL 4268955, at*11.11 This Castro objective standard



    11
        We previously avoided the question of whether to apply Farmer’s
subjective standard to a constitutional claim of deliberate indifference
against a municipality. See Gibson v. County of Washoe, 290 F.3d 1175,
1188 n.9 (9th Cir. 2002), overruled by Castro, 2016 WL 4268955, at *11.
And the Supreme Court has not yet resolved the question. See Doe By &
Through Doe v. Washington County, 150 F.3d 920, 923 (8th Cir. 1998)
(“[T]he [Supreme] Court has not directly addressed the question of how
Monell’s standard for municipal liability meshes with Farmer’s
requirement of subjective knowledge.”). The Supreme Court has
acknowledged, however, that “considerable conceptual difficulty would
attend any search for the subjective state of mind of a governmental entity,
as distinct from that of a governmental official.” Farmer, 511 U.S. at 841.
18               MENDIOLA-MARTINEZ V. ARPAIO



     In Castro, we noted that the “Supreme Court has strongly suggested
that the deliberate indifference standard for municipalities is always an
objective inquiry” and held that an objective standard should apply. 2016
WL 4268955, at *11. In doing so, we cited Canton, which analyzed
whether a municipality could be held liable for failing to adequately train
its police officers. Canton, 489 U.S. at 388–90 (“The issue in a case like
this one . . . is whether that training program is adequate; and if it is not,
the question becomes whether such inadequate training can justifiably be
said to represent ‘city policy.’”). The Supreme Court in Canton held that
a municipality could be liable under such a theory, but that liability would
only attach when “a failure to train reflects a ‘deliberate’ or ‘conscious’
choice by a municipality—a ‘policy’ as defined by our prior cases.” Id.
at 389. Under Canton, a plaintiff can demonstrate a deliberate or
conscience choice by showing that the municipality acted with “deliberate
indifference.” Id.

     We recognize that the reason Mendiola-Martinez must show
“deliberate indifference” here (to prove her Eighth Amendment claim
under § 1983) differs from the reason “deliberate indifference” was
required in Canton (to hold a municipality liable for its failure to train
police officers). As the Supreme Court explained:

         Although the term “deliberate indifference” has been
         used in other contexts to define the threshold for
         finding a violation of the Eighth Amendment, see
         Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 291,
         50 L.Ed.2d 251 (1976), as we have explained, that term
         was used in the Canton case for the quite different
         purpose of identifying the threshold for holding a city
         responsible for the constitutional torts committed by its
         inadequately trained agents.

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

     Although Castro relied on Canton’s discussion of municipal liability
under Monell, rather than an Eighth Amendment claim that requires
deliberate indifference, we see no reason why the objective standard of
deliberate indifference we adopted in Castro should not apply to
constitutional claims against a municipality like Mendiola-Martinez’s.
                MENDIOLA-MARTINEZ V. ARPAIO                           19

is satisfied when “a § 1983 plaintiff can establish that the
facts available to city policymakers put them on actual or
constructive notice that the particular omission [or act] is
substantially certain to result in the violation of the
constitutional rights of their citizens.” Id. (quoting Canton,
489 U.S. at 396 (O’Connor, J., concurring in part and
dissenting in part)) (emphasis omitted).

                                    1

   The district court never determined whether the County
Defendants’ policies led to a violation of Mendiola-
Martinez’s rights under Monell. Instead, it ruled that
Maricopa County and Sheriff Arpaio were entitled to
qualified immunity on the shackling claims and granted
summary judgment on that basis. The district court erred in
doing so.

     Qualified immunity protects government officials from
liability for civil damages. Pearson v. Callahan, 555 U.S.
223, 231 (2009). Government officials are entitled to
qualified immunity unless: (1) a plaintiff’s allegations make
out a violation of a constitutional right; and (2) the right was
clearly established at the time of the officials’ alleged
misconduct. See id. at 231–32. As permitted under Pearson,
id. at 236, the district court began with the second part of this
inquiry and found that the constitutional right Mendiola-
Martinez was seeking to enforce—to be completely free of
restraints during labor and postpartum recovery—was not
clearly established when she was in MCSO custody.



The same “conceptual difficulty” of searching for the “subjective state of
mind of a government entity” applies. Farmer, 511 U.S. at 841.
20            MENDIOLA-MARTINEZ V. ARPAIO

    But as a threshold matter, Maricopa County is not eligible
for qualified immunity because counties “do not enjoy
immunity from suit—either absolute or qualified—under
§ 1983.” Leatherman v. Tarrant Cty. Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 166 (1993); see also
Lowry v. City of San Diego, 818 F.3d 840, 855 (9th Cir.
2016) (“[Q]ualified immunity analysis is irrelevant to the
issue of Monell liability.”) (citing Brandon v. Holt, 469 U.S.
464, 471 (1985)). Therefore, granting qualified immunity to
Maricopa County was “plainly wrong.” Henry A. v. Willden,
678 F.3d 991, 999 (9th Cir. 2012) (reversing district court’s
grant of qualified immunity to county defendant and
emphasizing that qualified immunity protects officials only).
“Qualified immunity simply does not apply to these claims.”
Id.

    Sheriff Arpaio is likewise not eligible for qualified
immunity. When a county official like Sheriff Arpaio is sued
in his official capacity, the claims against him are claims
against the county. See Kentucky v. Graham, 473 U.S. 159,
166 (1985) (“[A]n official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity.”);
Ctr. for Bio-Ethical Reform v. L.A. Cty. Sheriff Dep’t,
533 F.3d 780, 786 (9th Cir. 2008) (holding that sheriff was a
“redundant defendant” in lawsuit against county and county
sheriff in his official capacity). Mendiola-Martinez brought
this action against Sheriff Arpaio in his official capacity as
the person who “oversees the operations of the Maricopa
County jails and is responsible for and accountable for
ultimate decisions of the Office.” She does not contend that
Sheriff Arpaio is personally liable for the alleged
constitutional violations, nor does she allege that he is liable
as a supervisor under a vicarious liability theory. See
Crowley, 734 F.3d at 977. Accordingly, Sheriff Arpaio, like
                MENDIOLA-MARTINEZ V. ARPAIO                              21

Maricopa County, is not eligible for qualified immunity and
awarding summary judgment on that basis was improper.12

    The proper question regarding the County Defendants
was not whether they are entitled to qualified immunity, but
whether a reasonable jury could find that MCSO policies
caused a violation of Mendiola-Martinez’s constitutional
rights. See Monell, 436 U.S. at 690–91. When briefly
discussing the County Defendants’ liability under Monell, the
district court touched on this question by stating that
Mendiola-Martinez had not shown that any employee of the
County violated her constitutional rights. But the district
court never directly analyzed or answered the question, so we
will do so here.

                                     2

   MCSO’s Restraint Policy requires officers to restrain all
inmates during transport and while at the hospital. The
Restraint Policy does not exempt women who are pregnant
from being restrained when outside of an MCSO jail. And it
appears the active-labor memorandum, issued days before
Mendiola-Martinez gave birth, did not apply to her.13


    12
       Even a finding by the district court that the individual Jane and John
Doe defendants were entitled to qualified immunity would not absolve the
County Defendants from liability: “If a plaintiff established he suffered
constitutional injury by the [County], the fact that individual officers are
exonerated is immaterial to liability under § 1983.” Fairley v. Luman,
281 F.3d 913, 917 (9th Cir. 2002).
    13
       The County Defendants’ position at oral argument that the active-
labor memorandum applied to Mendiola-Martinez is contrary to its
position before the district court. In the County Defendants’ statement of
facts accompanying its motion for summary judgment, the County
22              MENDIOLA-MARTINEZ V. ARPAIO

Therefore, we must assess whether a jury could find that the
Restraint Policy exposed Mendiola-Martinez to a substantial
risk of serious harm.

    But even before assessing the severity of the risk
Mendiola-Martinez faced under the Restraint Policy, a factual
dispute emerges about whether she was restrained during the
second transport on December 21, 2009. Mendiola-Martinez
testified that she was not restrained, while Officer Hertig
testified that she was handcuffed before the EMT asked
Officer Hertig to remove the cuffs. We cannot resolve this
important factual issue when reviewing a summary-judgment



Defendants asserted that the “only distinction between the policy at the
time of Plaintiff’s incarceration and now is that the current policy
prohibits pregnant inmates from being restrained during active labor.”
Relying on this purported fact, the County Defendants argued the
following to the district court in their motion for summary judgment:

         The prevailing policy at the time of Plaintiff’s
         incarceration required restraint of the pregnant inmates
         during transport and during recovery from delivery.
         (SOF ¶ 50). This policy remains in effect. The only
         distinction between the policy at the time of Plaintiff’s
         incarceration and now is that the current policy
         prohibits pregnant inmates from being restrained during
         active labor. (SOF ¶ 51). Plaintiff, however, was never
         restrained during labor. (SOF ¶ 52).

We do not allow parties to switch their positions on appeal. See Reynoso
v. Giurbino, 462 F.3d 1099, 1110 (9th Cir. 2006) (holding that a party is
bound by a concession to the district court notwithstanding a contrary
position on appeal). The County Defendants are thus bound to their
previous position that the Restraint Policy in place at the time of
Mendiola-Martinez’s incarceration required restraining inmates in labor,
unless or until a medical professional asked an officer to remove the
restraints.
              MENDIOLA-MARTINEZ V. ARPAIO                     23

ruling. Viewing the evidence in the light most favorable to
Mendiola-Martinez, however, we think a jury could believe
Officer Hertig’s version of events and find that Mendiola-
Martinez was restrained, pursuant to the Restraint Policy in
effect at the time, while in labor in the ambulance. This
dispute is material to her claim and precludes summary
judgment only if a jury could find that handcuffing Mendiola-
Martinez in the second ambulance ride was a violation of the
Eighth Amendment. Because such a finding is possible,
summary judgment for the County Defendants was improper.

                               3

     As evidence that the County Defendants’ policy subjected
Mendiola-Martinez to a substantial risk of harm, Mendiola-
Martinez offered the expert report of Dr. Carolyn Sufrin, an
Assistant Professor and Physician of the Department of
Obstetrics, Gynecology and Reproductive Sciences at the
University of California, San Francisco. The expert report
states that shackling at “any point in pregnancy” and “during
postpartum recovery” poses a threat to the mother. The
expert opines that shackling is problematic because of the
increased risk of tripping and a “potentially life-threatening”
fall. Shackling during labor is “dangerous,” according to the
expert, because restraints limit the ability of health care
providers to evaluate the woman. Further, restraints could
cause injury to a pregnant woman while she moves her body
to mollify painful contractions. According to the expert, the
risk of falling is also present after a C-section, and restraints
on women in postpartum recovery increase that risk as well.
The expert further opines that postpartum restraints are
problematic because walking after a C-section is necessary to
decrease the risk of blood clots, and restraints restrict a
woman’s ability to walk freely and carefully.
24            MENDIOLA-MARTINEZ V. ARPAIO

    The doctor who treated Mendiola-Martinez, Dr. LaValley,
similarly testified that it was “unsafe” for a woman to be
shackled during pregnancy. Dr. LaValley also stated that she
would object to restraints being placed on a woman after a C-
section. She did clarify, however, that a restraint allowing the
patient to walk around after a C-section would be acceptable.

    Mendiola-Martinez also cites to our sister circuits and two
district courts that have found, under the facts of their
respective cases, that shackling female prisoners while they
are in labor creates a substantial risk of serious harm and
violates contemporary standards of decency. In Villegas v.
Metropolitan Government of Nashville, 709 F.3d 563, 574
(6th Cir. 2013), the Sixth Circuit held:

       [S]hackling of pregnant detainees while in
       labor offends contemporary standard of
       human decency such that the practice violates
       the Eighth Amendment’s prohibition against
       the “unnecessary and wanton infliction of
       pain”—i.e., it poses a substantial risk of
       serious harm.

Finding disputed issues of fact as to whether the plaintiff was
a flight risk and whether the defendant subjectively knew of
the risk of shackling an inmate in labor, the Sixth Circuit
vacated summary judgment for the plaintiff. Id. at 578.

    Similarly, in Nelson v. Correctional Medical Services,
583 F.3d 522, 529 (8th Cir. 2009) (en banc), the plaintiff’s
expert testified by affidavit that shackling “‘is inherently
dangerous to both the mother and the unborn fetus’ and that
it may interfere with the response required ‘to avoid
potentially life-threatening emergencies for both the mother
              MENDIOLA-MARTINEZ V. ARPAIO                      25

and the unborn fetus.’” Id. at 529. Based on this undisputed
report, the lack of evidence that the plaintiff was a flight risk,
and the possibility the defendant officer knew of the risks of
shackling, the Eighth Circuit held that a rational jury could
find that the individual officer applying the restraints violated
the Eighth Amendment. See id. at 531

     In Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D.
Wash. 2010), the plaintiff’s expert testified that the shackles
used on the plaintiff while she was in labor exposed her to a
serious risk of harm and injury. Id. at 1219. The district
court found that in addition to the expert testimony,
“[c]ommon sense” and the defendant’s own policy, which
prohibited restraints during labor and delivery, “tells us that
it is not good practice to shackle women to a hospital bed
while they are in labor.” Id. Denying summary judgment for
the defendants, the district court ruled that the plaintiff had
shown she had a serious medical need and was exposed to an
unnecessary risk of harm when she was shackled while in
labor and immediately postpartum. Id. at 1219–20.

    All of the above cases cite to Women Prisoners of D.C.
Department of Corrections v. District of Columbia, 877 F.
Supp. 634 (D.D.C. 1994) vacated in part, modified in part,
899 F. Supp. 659 (D.D.C. 1995), which appears to be the first
federal case to address this issue. In that class action, the
district court held that “[w]hile a woman is in labor and
shortly thereafter, . . . shackling is inhumane.” Id. at 668.
The district court also acknowledged that restraints may be
necessary for a female prisoner with “a history of assaultive
behavior or escapes.” Id.

    The defendants seek to evade the persuasive force of
these cases by arguing that the facts here are less egregious.
26            MENDIOLA-MARTINEZ V. ARPAIO

It is true that the plaintiffs in Nelson, Villegas, and Women
Prisoners may have endured greater injury or risk of injury
than Mendiola-Martinez due to the type of restraints used and
the duration and timing of those restraints. In Nelson, for
example, the plaintiff’s legs were both shackled to the
opposite sides of her hospital bed “well into the final stage of
labor” and prevented her from “moving her legs, stretching,
or changing positions.” 583 F.3d at 525–26. In Villegas, the
plaintiff’s wrists and ankles were cuffed together while she
was on a stretcher for transportation to the ambulance.
709 F.3d at 566. When she arrived at the hospital, officers
restrained one of her legs to the hospital bed while she was in
labor and removed the restraint two hours before she gave
birth. Id. at 567. And in Women Prisoners, when
transporting pregnant women for medical visits, the
defendants “customarily place[d] women in leg shackles,
handcuffs and a belly chain with a box that connect[ed] the
handcuffs and belly chain.” 877 F. Supp. at 646.

    Despite the factual distinctions, these cases support
Mendiola-Martinez’s position. First, the cases show that the
four courts that have dealt with this issue have found that
objectively, shackling women in labor exposes them to a risk
so serious that it amounts to a constitutional violation. Cf.
Fain v. Rappahannock Reg’l Jail, No. 3:12CV293-JAG, 2013
WL 3148145, at *5–6 (E.D. Va. 2013) (declining to
determine whether shackling female inmate in labor was a
constitutional violation after holding that individual
defendants were entitled to qualified immunity because the
right to be free of restraints while in labor was not clearly
established). Although the pregnant inmates in Nelson and
Women Prisoners were restrained further into the birthing
process and forced to labor under more restrictive restraints,
              MENDIOLA-MARTINEZ V. ARPAIO                    27

the County Defendants may still have exposed Mendiola-
Martinez to an unjustified risk of serious harm.

    Additionally, the injuries caused by the restraints in these
cases—such as permanent hip injury, torn stomach muscles,
an umbilical hernia, and injured and deformed hips, see
Nelson, 583 F.3d at 526—show the severity of the risks posed
by shackling women in labor. Even if the actual harm
Mendiola-Martinez suffered is less severe than the physical
injuries claimed by the Villegas and Nelson plaintiffs, a
reasonable juror could find that she faced an excessive risk of
harm.

    These cases are also aligned with the chorus of
organizations that have warned of the danger of restraining
women in labor and decried the practice, which is relevant to
our inquiry—whether “today’s society chooses to tolerate”
the risk posed by restraining women in labor. Helling,
509 \U.S. at 36. The organizations include: the American
Medical Association, American College of Obstetricians and
Gynecologists, the United Nations, and Amnesty
International. See Villegas, 709 F.3d at 572–73. These same
organizations acknowledge, however, that shackles may be
necessary, despite the risks, when an inmate poses a flight or
safety risk. See id. at 572–74 (citing reports).

    The State of Arizona also has recognized the risk of
shackling pregnant women. In 2012, three years after
Mendiola-Martinez gave birth to Angel in Maricopa County,
Arizona, the state legislature banned the use of certain
restraints on a prisoner “who is being transported for delivery
or during labor, delivery and postpartum recovery” unless
restraints are requested by the attending medical staff or a
corrections officer determines that the prisoner “presents an
28              MENDIOLA-MARTINEZ V. ARPAIO

extraordinary circumstance.” Ariz. Rev. Stat. Ann. § 31-
601(A).14 Additionally, MCSO itself recognized the risk of
restraining a woman in “active labor” when it announced its
new practice of not restraining women in active labor “to
protect the mother and the baby” days before Mendiola-
Martinez gave birth.

    Unlike the defendants in Villegas, 709 F.3d at 576–77, the
County Defendants provide no evidence disputing the
severity of the risk caused by restraining an inmate during
labor or postpartum recovery. Therefore, we find that
Mendiola-Martinez has presented sufficient evidence for a
reasonable jury to conclude that by restraining Mendiola-
Martinez when she was in labor15 and postpartum recovery,
the County Defendants exposed her to a substantial risk of
serious harm.

    Instead of disputing the risk posed by the Restraint Policy,
the County Defendants seek to justify the policy by arguing
that it “serves a legitimate government purpose, specifically
the safety and security of the inmate, detention officers,
hospital personnel, as well as the general public.” Of course,
ensuring the safety of inmates, staff and the public is a worthy
objective, and in some circumstances, justifies the use of


     14
        This statute appears to apply to Maricopa County. See Ariz. Rev.
Stat. Ann. § 31-601(F)(1) (defining “correctional institution” as “any
entity under the authority of any state or county law enforcement
agency”). The statute permits the use of a “security tether chain” attached
to an inmate’s ankle and a hospital bed during postpartum recovery. Id.
§ 31-601(D).
     15
     To make such a finding, the jury also would have to find that
Mendiola-Martinez was restrained in the ambulance while in labor on
December 21, 2009.
              MENDIOLA-MARTINEZ V. ARPAIO                    29

restraints on certain inmates. See, e.g., Keenan v. Hall,
83 F.3d 1083, 1092 (9th Cir. 1996) opinion amended on
denial of reh’g, 135 F.3d 1318 (9th Cir. 1998) (“[F]or the
protection of staff and other inmates, prison authorities may
place a dangerous inmate in shackles and handcuffs when
they move him from his cell.”); LeMaire v. Maass, 12 F.3d
1444, 1457 (9th Cir. 1993) (restraining a “dangerous” inmate
while he showered did not violate the Eighth Amendment
despite a risk of slipping because it was a “security
imperative”); see also Bell v. Wolfish, 441 U.S. 520, 546
(1979) (“[M]aintaining institutional security and preserving
internal order and discipline are essential goals that may
require limitation or retraction of the retained constitutional
rights of both convicted prisoners and pretrial detainees.”).
It is a relevant consideration here as well. We recognize that
prison officials have a “better grasp” of the policies required
to operate a correctional facility than either judges or juries.
See id. at 548. For this reason, in excessive force and
conditions of confinement cases, we instruct juries to defer to
prison officials’ judgments in adopting and executing policies
needed to preserve discipline and maintain security. See
Chess, 790 F.3d at 972–73 (citing Norwood v. Vance,
591 F.3d 1062, 1067 (9th Cir. 2010)).

    Such deference is generally absent from serious medical
needs cases, however, where deliberate indifference “can
typically be established or disproved without the necessity of
balancing competing institutional concerns for the safety of
prison staff or other inmates.” Whitley v. Albers, 475 U.S.
312, 320 (1986); see also Chess, 790 F.3d at 973 (“[S]ecurity
considerations are usually not present in medical care
cases.”). Therefore, whether the County Defendants are
entitled to deference depends on the type of claim Mendiola-
Martinez brings against them: do her shackling claims
30              MENDIOLA-MARTINEZ V. ARPAIO

challenge the conditions her confinement? Or are they of the
medical-needs variety?

     Mendiola-Martinez contends that her shackling claims are
a hybrid of both. We agree that her shackling claims do not
fit neatly into either category. See Villegas, 709 F.3d at 571
(discussing the “crossover nature of a pregnant shackling
claim” recognized in Nelson, which combines language from
cases involving medical needs and conditions of
confinement). Her challenge to the Restraint Policy is more
akin to the “outlier cases” we recognized in Chess, “in which
medical care and security concerns genuinely clash and
prison personnel must make their medical care decisions in
light of those concerns.” 790 F.3d at 974. In such unusual
situations, the district court must instruct the jury to defer to
the prison officials who adopted and executed a practice or
policy needed to preserve discipline and maintain internal
security. See id.; see also Ninth Circuit Model Civil Jury
Instruction § 9.25.16 That deference, however, comes with an
important caveat: “The [Supreme] Court has held that
deference must be given to the officials in charge of the jail
unless there is ‘substantial evidence’ demonstrating their
response to the situation is exaggerated.” Chess, 790 F.3d at
974 (quoting Florence v. Bd. of Chosen Freeholders of Cty.
of Burlington, 132 S. Ct. 1510, 1518 (2012)); see also
Lemire, 726 F.3d at 1079 (“A prison official’s justification
for exposing inmates to a substantial risk of harm is
reasonable only if it represents a proportionate response to the


     16
       After Chess, Ninth Circuit Model Civil Jury Instruction § 9.25 was
modified to apply deference language to all conditions of confinement
cases, and to medical needs cases only when a policy addresses security
concerns and the challenged decision was made pursuant to a security-
based policy.
                MENDIOLA-MARTINEZ V. ARPAIO                              31

penological circumstances in light of the severity of the risk
to which the inmates are exposed.”).17 A jury could find in
this case that the restraints used on Mendiola-Martinez were
an “exaggerated” response to the County Defendants’ safety
concerns. Mendiola-Martinez was arrested for a nonviolent
crime, and the County Defendants have failed to show she
was a danger to others. Nor is there any evidence that
Mendiola-Martinez was a flight risk. In fact, Officer Hertig,
who escorted Mendiola-Martinez to the hospital and was with
her during the C-section and shortly afterward, testified that
Mendiola-Martinez was not a specific security threat and did
not give any indication that she would try to escape.

    Mendiola-Martinez’s physical condition when she was
transported to the Medical Center and after her C-section also
make it highly unlikely that she would flee or fight. Her
expert states that “labor contractions are extremely painful
and would preclude a woman from absconding in the few
minutes in between contractions.” The expert additionally
notes that “[p]ost-operative pain after abdominal surgery [like
a C-section] makes it nearly impossible for someone to run.”
See also Women Prisoners, 877 F. Supp. at 668 (“[T]he
physical limitations of a woman in the third trimester of
pregnancy and the pain involved in delivery make complete
shackling redundant and unacceptable in light of the risk of
injury to a woman and baby.”).



    17
       This is consistent with the holdings of Villegas, 709 F.3d at 574,
and Nelson, 583 F.3d at 534, as well as the reports of the medical and
human-rights organizations we referenced, which all recognize that prison
staff may be justified in restraining a woman in labor and postpartum
recovery if she is a threat to herself or others, or poses a flight risk that
they cannot otherwise manage. See Villegas, 709 F.3d at 573–74.
32              MENDIOLA-MARTINEZ V. ARPAIO

    Furthermore, pursuant to the Restraint Policy, an armed
officer remained with Mendiola-Martinez at all times while
she was at the hospital, even when she was undergoing a C-
section and under anesthesia. Even if Mendiola-Martinez
was contemplating an escape, the armed officer outside of her
hospital door may have negated the need for any restraint.
Without more than a broad assertion about the penological
interest in restraining all inmates—even one who is in
labor—a reasonable jury could find that the Restraint Policy
exposed Mendiola-Martinez to a substantial and unjustified
risk of harm.

                                     4

    Our inquiry does not end there, for the County Defendants
are liable only if Mendiola-Martinez demonstrates that they
were deliberately indifferent to her constitutional rights. See
Farmer, 511 U.S. at 837, 842; see also supra pp. 15–19. In
this case, MCSO’s active-labor memorandum, which states
that women in active labor would not be restrained to avoid
harm to the woman and the baby, seems to “explicitly
acknowledge that substantial risks of serious harm exist”
when restraining a woman in labor. Castro, 2016 WL
4268955, at *12 (quoting Gibson v. County of Washoe,
290 F.3d 1175, 1188 n.10 (9th Cir. 2002), overruled by
Castro, 2016 WL 4268955, at *11)).18 Therefore, a jury


     18
       Castro overruled Gibson only to the extent that Gibson suggested
a subjective test for showing that a municipality was deliberately
indifferent. See Castro, 2016 WL 4268955, at *11. Therefore, Gibson’s
holding that certain evidence was sufficient to show subjective intent, a
more stringent standard than the objective test we apply here, is still
relevant. See id. at *12 (citing Gibson, 290 F.3d at 1188 n.10, as authority
for its holding that “‘a municipality’s policies [that] explicitly
                MENDIOLA-MARTINEZ V. ARPAIO                          33

could conclude that the County Defendants were aware of the
risk caused by restraining an inmate in labor and deliberately
indifferent to that risk by restraining Mendiola-Martinez
during transport.

    A jury could also infer the County Defendants’ awareness
of the risk of restraining Mendiola-Martinez while she was in
labor because the risk is obvious. See Hope, 536 U.S. at 745
(“The obvious cruelty inherent in this practice should have
provided respondents with some notice that their alleged
conduct violated [the plaintiff’s] constitutional protection
against cruel and unusual punishment.”); Nelson, 583 F.3d at
534 (“Existing constitutional protections . . . would have
made it sufficiently clear to a reasonable officer in September
2003 that an inmate in the final stages of labor cannot be
shackled absent clear evidence that she is a security or flight
risk.”); Women Prisoners, 877 F. Supp. at 669 (finding that
the risk caused by complete shackling of an inmate in her
third trimester of pregnancy was “obvious”); see also
Farmer, 511 U.S. at 841 (describing Canton’s objective
understanding of deliberate indifference as permitting
liability premised on “obviousness or constructive notice”).

    Whether the County Defendants were deliberately
indifferent to any risk created by restraining women in
postpartum recovery is a closer question. Such a risk is not
as obvious as restraining an inmate in labor. Mendiola-
Martinez’s expert states that walking “without restraint” after
a C-section is necessary to prevent blood clots. But
Mendiola-Martinez testified that she could walk around the
room with the six-to-eight foot “leg tether,” which was longer


acknowledge that substantial risks of serious harm exist’ may demonstrate
municipal knowledge of that risk”).
34             MENDIOLA-MARTINEZ V. ARPAIO

than the other chains used to restrain her, and that nurses
came into the room to help her walk around. The use of a leg
tether long enough to permit Mendiola-Martinez to walk
around indicates that the County Defendants were aware of
the risk of restraining woman in postpartum recovery and
sought to neutralize the risk, not disregard it. Therefore, we
conclude that a reasonable jury could not find that the use of
the leg tether constituted deliberate indifference to Mendiola-
Martinez’s health and safety in violation of her constitutional
rights. Summary judgment on this aspect of Mendiola-
Martinez’s shackling claims was proper.

    The length of the tether works against the County
Defendants, however, when we look at the restraints applied
to Mendiola-Martinez as she left the Medical Center. In
Gibson, the defendant county had employed a mental health
professional at its jail to screen detainees for mental health
issues. 290 F.3d at 1191. The county then dropped the
mental health professional position, leaving it vacant for four
years. Id. Based on those facts, we held that a jury could
find that the county was deliberately indifferent to the mental
health needs of its detainees because the existence of the
screening program showed that the county subjectively knew
screenings were necessary to provide adequate health care
and avoid serious harm to detainees. Id.

    Similarly, the long leg tether placed on Mendiola-
Martinez tends to show that the County Defendants knew that
a woman in postpartum recovery needed to walk relatively
freely to mitigate the risk of falling.19 A jury could find that


     19
      It is possible that a longer tether is used on all inmates staying
overnight at the Medical Center, and not just on inmates in postpartum
recovery. But from this record, we know only that the longer tether was
                MENDIOLA-MARTINEZ V. ARPAIO                            35

the County Defendants then ignored the need for a longer
tether or chain to permit safe walking when, pursuant to the
Restraint Policy, MCSO officers cuffed Mendiola-Martinez’s
wrists and ankles, chained her to other inmates, and escorted
her out of the Medical Center days after her C-section.
Viewing the sparse evidence here in the light most favorable
to Mendiola-Martinez, we hold that a jury could find the
County Defendants were deliberately indifferent to any risk
created by the restraints used on Mendiola-Martinez when she
left the Medical Center.

    We therefore vacate summary judgment in favor of the
County Defendants on Mendiola-Martinez’s shackling claims
as they relate to shackling while Mendiola-Martinez was in
labor and leaving the Medical Center. We affirm summary
judgment for the County Defendants on Mendiola-Martinez’s
remaining shackling claim regarding the postpartum leg
tether. We remand for a jury to resolve the factual dispute
about whether Mendiola-Martinez was restrained in the
second transport on December 21, 2009. The jury will also
have to determine whether Mendiola-Martinez has proved her
deliberate-indifference claim against the County Defendants
regarding restraints during labor and in postpartum recovery
when she left the Medical Center.20 At trial, the district court



used on Mendiola-Martinez. Viewing the evidence in Mendiola-
Martinez’s favor, the longer tether supports an inference that the County
Defendants knew that an inmate in postpartum recovery needs a longer
chain.
    20
       Ninth Circuit Model Civil Jury Instruction § 9.25 lists “harm to the
plaintiff” as another element of a deliberate-indifference claim. We also
leave to the jury the issue whether the Restraint Policy caused Mendiola-
Martinez the harm she alleges, but note that psychological harm is
36             MENDIOLA-MARTINEZ V. ARPAIO

should give the jury the deference instruction in Ninth Circuit
Model Civil Jury Instruction § 9.25, but emphasize that the
County Defendants are not entitled to deference if the jury
finds that their response to any security or escape threat
Mendiola-Martinez posed was “exaggerated.” Chess,
790 F.3d at 974 (quoting Florence, 132 S. Ct at 1518)).

                                  B

    We now turn to the shackling claims against the Medical
Center. In granting summary judgment for the Medical
Center on those claims, the district court did not apply
qualified immunity. Instead, the district court found that
Mendiola-Martinez had not proffered sufficient evidence to
support her claims and survive summary judgment. We
agree.

    While at the Medical Center, Mendiola-Martinez was
shackled only after her C-section. She asserts that the
Medical Center’s policy and practice of deferring to law
enforcement about when patients should be shackled or
restrained violates the Eighth Amendment. Once again,
Mendiola-Martinez is taking the “direct path” to liability
under Monell by challenging what she contends is an
unconstitutional policy. See Gibson, 290 F.3d at 1185. And
under § 1983 and the Eighth Amendment, she must
demonstrate that the Medical Center had policies that
(1) exposed her to a substantial risk of serious harm; and
(2) were deliberately indifferent to her constitutional rights.
Farmer, 511 U.S. at 837, 842.



sufficient. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir.
1993).
             MENDIOLA-MARTINEZ V. ARPAIO                    37

    First, Mendiola-Martinez presents no evidence that the
Medical Center’s practice of deference exposed her to any
substantial risks. On the contrary, the alleged practice
apparently applied only when no substantial risk of harm
existed. Dr. LaValley, who treated Mendiola-Martinez at the
Medical Center, testified that on prior occasions she has
asked guards to remove an inmate’s restraints, for instance
when they interfere with a mother’s ability to walk or to
breastfeed, and MCSO officers have always complied with
these requests. Additionally, Mendiola-Martinez testified
that when she told a nurse her ankle cuff was hurting her, the
nurse asked an MCSO officer to loosen the restraint and the
officer complied. Accordingly, there is no absolute deference
to law enforcement decisions by the Medical Center on this
record. Medical personnel are permitted to (and do) ask
officers to remove or adjust restraints for patients’ safety or
comfort. This mitigates—rather than creates—any risk of
harm caused by the restraints.

    Further, even assuming the Medical Center’s general
policy of deference exposed Mendiola-Martinez to a
substantial risk of serious harm, Dr. LaValley’s testimony
that a restraint that allowed an inmate to walk about during
postpartum recovery would be acceptable and that medical
personnel could ask to have restraints loosened or removed as
necessary leaves no reason to believe the Medical Center was
deliberately indifferent to Mendiola-Martinez’s health and
safety.

    Because Mendiola-Martinez has not presented a material
factual dispute to preclude summary judgment on this issue,
the district court properly granted summary judgment for the
Medical Center on the shackling claims.
38            MENDIOLA-MARTINEZ V. ARPAIO

                               IV

   We next address whether summary judgment for the
County Defendants and the Medical Center was proper on
Mendiola-Martinez’s breast pump claims.          Mendiola-
Martinez contends that the County Defendants and the
Medical Center were deliberately indifferent to her serious
medical needs by prohibiting her from using, or failing to
provide her with, a breast pump.

    Mendiola-Martinez lacks a plausible theory of liability
supported by facts on the breast pump claims as to both the
County Defendants and the Medical Center. She does not
attempt to link any policy or practice of the County
Defendants or of the Medical Center to the alleged failure to
provide her with a breast pump. See Monell, 436 U.S. at 691;
see also Canton, 489 U.S. at 394 (“[A] § 1983 plaintiff
seeking to attach liability to the city for the acts of one of its
employees may not rest on the employment relationship
alone; both fault and causation as to the acts or omissions of
the city itself must be proved.”); cf. Villegas, 709 F.3d at
578–79 (noting plaintiff’s allegation that defendant prohibited
her from using a breast pump pursuant to its policy).

    Nor does Mendiola-Martinez demonstrate that some
omission, such as a failure to train, caused the alleged failure
to provide her with a breast pump. See Canton, 489 U.S. at
387–90. Therefore, even if individual employees of the
County Defendants or the Medical Center were deliberately
indifferent to Mendiola-Martinez’s need for a breast
pump—which Mendiola-Martinez has not shown—the
County Defendants and the Medical Center could not be
liable under § 1983. See Monell, 436 U.S. at 691. Because
Mendiola-Martinez lacks a basis for municipal liability, we
                MENDIOLA-MARTINEZ V. ARPAIO                             39

affirm summary judgment for Defendants on her breast pump
claims.

                                    V

    We now review the remaining claims asserted solely
against the County Defendants. Mendiola-Martinez argues
that the County Defendants’ nutrition policy constituted
deliberate indifference to her serious medical needs.21 The
Eighth Amendment “requires only that prisoners receive food
that is adequate to maintain health.” Foster v. Runnels,
554 F.3d 807, 813 n.2 (9th Cir. 2009) (quoting LeMaire,
12 F.3d at 1456). We have previously found that the
“repeated and unjustified failure” to provide inmates adequate
sustenance “amounts to a serious depr[i]vation” in violation
of the Eighth Amendment. Foster, 554 F.3d at 814. In
Foster, denying an inmate sixteen meals over twenty-three


    21
       Mendiola-Martinez styles her nutrition claim as a serious medical
needs claim. Previous § 1983 claims regarding prison nutrition have been
brought as conditions of confinement claims. See, e.g., Foster v. Runnels,
554 F.3d 807, 812 (9th Cir. 2009); LeMaire, 12 F.3d at 1447, 1449–50.
We recognize that we should give “due regard for differences in the kind
of conduct against which an Eighth Amendment objection is lodged.”
Whitley, 475 U.S. at 320. Here, however, whether Mendiola-Martinez
asserts her nutrition claim as a serious medical needs claim or a conditions
of confinement claim is of no consequence. Either way, the Eighth
Amendment’s deliberate indifference standard applies. See, e.g., Hope,
536 U.S. at 737–38; Whitley, 475 U.S. 312 at 319 (“It is obduracy and
wantonness, not inadvertence or error in good faith, that characterize the
conduct prohibited by the Cruel and Unusual Punishments Clause,
whether that conduct occurs in connection with establishing conditions of
confinement, [or] supplying medical needs . . . .”); Estelle, 429 U.S. at
104. And either way, as we discuss infra, Mendiola-Martinez has not
shown that any alleged deprivation of food or water was sufficiently
serious to trigger Eighth Amendment protection.
40              MENDIOLA-MARTINEZ V. ARPAIO

days was sufficiently serious to violate the Eighth
Amendment. Id. at 812–13. The denial of those meals, as
well as the inmate’s allegations of dizziness, weight loss, and
headaches, all led to the permissible inference that the
inmate’s nutrition was inadequate and could not sustain him.
Id. at 813 n.2.

    Mendiola-Martinez lacks sufficient evidence to support
her nutrition claim and survive summary judgment. She has
not provided any evidence that the supplemental pregnancy
diet she received was insufficient or that the water from her
cell’s sink was unsanitary. She likewise has not supported
her allegation that she was deprived of sufficient food and
water when going to court. Nor has Mendiola-Martinez
shown that the County Defendants were deliberately
indifferent to the nutritional needs of pregnant women.
Instead, she merely points to an amended judgment from
District Judge Neil Wake in Graves v. Arpaio, No. 77-0479,
2008 WL 4699770 (D. Ariz. Oct. 22, 2008),22 in which he
found that the food provided to MCSO inmates in that case
violated their right to adequate food.

    No evidence has been offered in the present case to make
Judge Wake’s findings applicable here. There is no evidence
that the food Mendiola-Martinez received was moldy,
inedible, or inadequate under the United States Department
of Agriculture’s recommended caloric intake. See Graves,
2008 WL 4699770, at *42. Nor has Mendiola-Martinez
shown or even alleged that the food she received left her or
her baby in poor health. See Foster, 554 F.3d at 813 n.2.


     22
        We believe that this order is the one on which Mendiola-Martinez
relies. Due to the citation errors in Mendiola-Martinez’s brief, we cannot
be certain.
             MENDIOLA-MARTINEZ V. ARPAIO                    41

Furthermore, without knowing what a pregnancy diet should
include, no jury could gauge whether the extra milk and pre-
natal vitamin prescribed by MCSO’s modified diet for
pregnant women was inadequate. And unlike in Graves,
there is no evidence demonstrating that Mendiola-Martinez
did not actually receive those supplemental provisions. See
Graves, 2008 WL 4699770, at *44.

    Finally, any inference a jury could draw from Mendiola-
Martinez’s claim that she was hungry would not establish a
serious deprivation within the meaning of the Eighth
Amendment. Cf. Foster, 554 F.3d at 813 (concluding that
even though the record contained no evidence about the
nutritional value of meals, the jury could infer meals were
inadequate due to inmate’s testimony that he was denied
meals completely and suffered dizziness and headaches);
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th
Cir. 2002) (“[T]his court has refused to find a ‘genuine issue’
where the only evidence presented is ‘uncorroborated and
self-serving’ testimony.” (quoting Kennedy v. Applause, Inc.,
90 F.3d 1477, 1481 (9th Cir.1996)). The district court
properly granted summary judgment for the County
Defendants on the nutrition claim.

                              VI

    Mendiola-Martinez alleges that the MCSO Restraint
Policy disparately impacts pregnant women born outside of
the United States because they are more likely to be detained
under the Arizona Bailable Offenses Act, Ariz. Rev. Stat.
Ann. § 13-3961, than similarly-situated United States
citizens.
42              MENDIOLA-MARTINEZ V. ARPAIO

    The district court construed this equal protection claim as
a challenge to the Arizona Bailable Offenses Act, rather than
the MCSO Restraint Policy. But Mendiola-Martinez’s
amended complaint and supplemental appellate briefing
clearly show that she is challenging the Restraint Policy, not
the Arizona Bailable Offenses Act.23 Because we may affirm
summary judgment on any ground supported by the record,
Lee v. Kemna, 534 U.S. 362, 391 (2002), we now turn to
whether a reasonable jury on the record before us could find
that the Restraint Policy was unconstitutionally
discriminatory toward inmates like Mendiola-Martinez. We
hold it could not.

    The Equal Protection Clause of the Fourteenth
Amendment “is essentially a direction that all persons
similarly situated should be treated alike.” Lee v. City of Los
Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).
To survive summary judgment, Mendiola-Martinez must
show that the MCSO Restraint Policy not only had a
discriminatory impact, but that it was enacted with an intent
or purpose to discriminate against members of a protected
class. See Comm. Concerning Cmty. Improvement (“CCCI”)
v. City of Modesto, 583 F.3d 690, 702–03 (9th Cir. 2009).
Mendiola-Martinez’s contention that she need not show
discriminatory intent is incorrect. The Supreme Court has
clearly stated that “‘[p]roof of racially discriminatory intent
or purpose is required’ to show a violation of the Equal
Protection Clause.” City of Cuyahoga Falls, Ohio v. Buckeye


     23
      In fact, the Arizona Bailable Offenses Act was already successfully
challenged. See Lopez-Valenzuela, 770 F.3d at 792 (holding that Arizona
Bailable Offenses Act categorically forbidding bail for certain
undocumented immigrants violated substantive due process).
              MENDIOLA-MARTINEZ V. ARPAIO                    43

Cmty. Hope Found., 538 U.S. 188, 194 (2003) (quoting
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
265 (1977)).

    In determining whether a discriminatory intent or purpose
exists, we may consider direct evidence of discrimination,
statistical evidence showing a discriminatory impact, or other
factors that could reveal a discriminatory purpose, like the
historical background of the policy. See CCCI, 583 F.3d at
703. Mendiola-Martinez, however, has not presented
sufficient evidence of discriminatory intent or purpose—
direct, statistical, or otherwise.

    As direct evidence of intent, Mendiola-Martinez relies on
offensive quotes about Mexican nationals attributed to Sheriff
Arpaio and published in newspapers. Even if those hearsay
statements were admissible, however, they do not mention the
Restraint Policy and do not otherwise lead to any inference
that Sheriff Arpaio’s 2006 Restraint Policy was promulgated
to discriminate against Mexican nationals.

    Without direct evidence of discrimination, Mendiola-
Martinez seeks to demonstrate the discriminatory purpose
behind the Restraint Policy with statistical evidence. When
challenging a facially neutral policy like the Restraint Policy,
“proof of disproportionate impact on an identifiable group,
such as evidence of ‘gross statistical disparities,’ can satisfy
the intent requirement.” Id. at 703. But the statistical
evidence Mendiola-Martinez presents here is woefully
inadequate to achieve her goal. Mendiola-Martinez provides
only general population statistics about Maricopa County:
“31.8% of Maricopa County’s residents are Hispanic or
Latino,” and “[n]inety percent of the undocumented
immigrants in Maricopa County are from Mexico.” She also
44            MENDIOLA-MARTINEZ V. ARPAIO

cites to a district court order summarizing census data on
Hispanics and Latinos in Maricopa County. See Melendres
v. Arpaio, 989 F. Supp. 2d 822, 828–29 & n.2 (D. Ariz.
2013).

    But these general population statistics do not establish
that Mexican nationals are disproportionately impacted by the
Restraint Policy, and Mendiola-Martinez simply fails to
present any comparative figures to attempt to show disparate
impact. See Darensburg v. Metro. Transp. Comm’n, 636 F.3d
511, 519–20 (9th Cir. 2011) (“The basis for a successful
disparate impact claim involves a comparison between two
groups—those affected and those unaffected by the facially
neutral policy.” (quoting Tsombanidis v. W. Haven Fire
Dep’t, 352 F.3d 565, 575 (2d Cir. 2003)). Her numbers
reveal no “statistical disparit[y],” let alone a “gross”
statistical disparity necessary to show discriminatory intent.
CCCI, 583 F.3d at 703.

    Mendiola-Martinez has not identified any other proof of
discriminatory intent. See id. (noting that other factors may
show discriminatory intent, such as a policy’s historical
background, the sequence of events leading to the decision,
and the administrative history of the challenged statute). We
therefore assume that the Restraint Policy was not born of
discrimination and ask whether it was “rationally related to a
legitimate government interest.” Id. As Mendiola-Martinez’s
counsel recognized at oral argument, the Restraint Policy,
even if potentially problematic when applied to women in
labor or postpartum recovery, is rationally related to the
legitimate government interest of ensuring the safety and
security of law enforcement, the public, and the inmates. See
Hudson v. Palmer, 468 U.S. 517, 526–27 (1984) (recognizing
that prison officials “are to take all necessary steps to ensure
              MENDIOLA-MARTINEZ V. ARPAIO                     45

the safety of not only the prison staffs and administrative
personnel, but also visitors” and “are under an obligation to
take reasonable measures to guarantee the safety of the
inmates themselves”). We affirm the district court’s entry of
summary judgment on the equal protection claim because
Mendiola-Martinez failed to present sufficient evidence that
the Restraint Policy violated the Equal Protection Clause of
the Fourteenth Amendment. See Celotex, 477 U.S. at
322–23.

                              VII

    Our final task is to determine whether the district court
abused its discretion by taxing costs against Mendiola-
Martinez in favor of the County Defendants and the Medical
Center. See Ass’n of Mexican-American Educators v.
California, 231 F.3d 572, 591–92 (9th Cir. 2000) (en banc).
Federal Rule of Civil Procedure 54(d)(1) provides that the
court clerk should tax costs, other than attorney’s fees, for the
prevailing party, unless the Rules, federal law, or a court
order directs otherwise. A district court may review the
clerk’s judgment on taxation of costs only upon the filing of
a timely motion. See Fed. R. Civ. P. 54(d)(1).

    The judgment against Mendiola-Martinez taxes $1,971
for the Medical Center and $936.37 for the County
Defendants. Because we vacate summary judgment for the
County Defendants on most of the shackling claims, we must
also vacate the cost award for the County Defendants and
remand to the district court to reassess costs in light of our
decision. See id.

  We affirm the cost award in favor of the Medical Center.
Mendiola-Martinez waived her right to appellate review of
46            MENDIOLA-MARTINEZ V. ARPAIO

the cost award by neglecting to move for district court review
under Rule 54(d)(1). See Walker v. California, 200 F.3d 624,
626 (9th Cir. 1999) (“[A] party may demand judicial review
of a cost award only if such party has filed a proper motion
within the . . . period specified in Rule 54(d)(1).”). Failing to
file the proper motion is “dispositive.” Id. Additionally,
Mendiola-Martinez’s objection to the bill of costs was
untimely under the local rule of the District of Arizona,
LRCiv. 54.1(b), and the cost award for the Medical Center
was one-third less than the amount the Medical Center sought
in the bill of costs. There was no abuse of discretion, and we
affirm the cost award to the Medical Center.

                              VIII

    We are mindful that the administration of a penal
institution is “at best an extraordinarily difficult undertaking.”
Hudson, 468 U.S. 517, 527 (1984) (quoting Wolff v.
McDonnell, 418 U.S. 539, 566 (1974)). Crafting a restraint
policy that balances safety concerns with the inmates’
medical needs is equally challenging. But it is not
impossible. And we leave it to a jury to decide whether the
risk the Maricopa County Restraint Policy posed to
Mendiola-Martinez was justified, or whether the County
Defendants went a step too far.

    In conclusion, we vacate summary judgment for the
County Defendants on the shackling claims as they relate to
shackling while Mendiola-Martinez was in labor and leaving
the Medical Center, as well as the separately pleaded Monell
claim insofar as it concerns these alleged shackling incidents.
We remand for a jury to determine whether liability and
compensation is appropriate on these claims. We affirm
summary judgment for the County Defendants on Mendiola-
             MENDIOLA-MARTINEZ V. ARPAIO                  47

Martinez’s remaining claims regarding the postpartum leg
tether, medical supplies, pregnancy diet and nutrition, and
equal protection. Because the County Defendants are no
longer the prevailing party on all of their claims, we vacate
the cost award in favor of the County Defendants and remand
to the district court to determine those costs.

    We affirm summary judgment in favor of the Medical
Center on all of Mendiola-Martinez’s claims and likewise
affirm the cost award in its favor.

   Each party shall bear its own costs on appeal.

  AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
