FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED GRAVES and ISAAC V.
POPOCA,
Plaintiffs-Appellees,
v.
No. 08-17601
JOSEPH M. ARPAIO, Sheriff of
D.C. No.
Maricopa County,
Defendant-Appellant, 2:77-cv-00479-
NVW
and
OPINION
FULTON BROCK; DON STAPLEY;
ANDREW KUNASEK; MAX W.
WILSON; MARY ROSE WILCOX,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
March 8, 2010—San Francisco, California
Filed October 13, 2010
Before: Betty B. Fletcher, Richard R. Clifton, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion
17051
GRAVES v. ARPAIO 17055
COUNSEL
Michele M. Iafrate and Courtney Rachel Cloman, IAFRATE
& ASSOCIATES, Phoenix, Arizona, for the defendant-
appellant.
Larry A. Hammond, Sharad H. Desai, and Debra A. Hill,
Osborn Maledon, P.A., Phoenix, Arizona; Dan Pochoda,
ACLU of Arizona, Phoenix, Arizona; and Margaret Winter,
ACLU – AMERICAN CIVIL LIBERTIES UNION, Wash-
ington, D.C., for the plaintiff-appellee.
OPINION
PER CURIAM:
Defendant Joseph M. Arpaio, the Sheriff of Maricopa
County, appeals the district court’s Second Amended Judg-
ment. The judgment requires him to take affirmative measures
to address conditions in Maricopa County jails that violate the
Eighth and Fourteenth Amendments. Sheriff Arpaio chal-
lenges two provisions of the Second Amended Judgment: its
requirement that he provide pretrial detainees taking psy-
chotropic medications with housing in which the temperature
does not exceed 85° F, and its requirement that he provide
detainees with food that satisfies the United States Depart-
ment of Agriculture’s Dietary Guidelines for Americans
(“Dietary Guidelines”). He argues that these provisions are
procedurally flawed because the district court ordered pro-
spective relief without giving him an opportunity to propose
alternative remedies, and substantively flawed because the
relief ordered by the district court is not the least intrusive
means for correcting a current and ongoing violation of the
rights of pre-trial detainees. For the reasons that follow, we
disagree and affirm.
17056 GRAVES v. ARPAIO
FACTUAL AND PROCEDURAL BACKGROUND
In 1977, three indigent prisoners brought suit against the
Maricopa County Sheriff and Board of Supervisors on behalf
of all pretrial detainees held in Maricopa County jails. The
detainees claimed that the harsh conditions of confinement at
the jails violated their constitutional rights. They challenged,
inter alia, prison overcrowding, inadequate recreational time,
dangerously high temperatures, limited access to reading
material, and inadequate food. The parties negotiated a com-
prehensive agreement that addressed each of the detainees’
claims, and the district court entered a judgment adopting the
terms of that agreement in 1981. The judgment was amended
in 1995 to reflect changes in the prison population, new jail
construction, advances in medical treatment, and evolution of
the law.
The following year, Congress enacted the Prison Litigation
Reform Act of 1995 (“PLRA”), Pub. L. 104-134, § 801-810,
110 Stat. 1321 (1996) (codified as amended in scattered sec-
tions of 18, 28, and 42 U.S.C.). In 1998, the defendants filed
a Motion to Terminate the Amended Judgment. The district
court denied the motion, the defendants appealed, and the
Ninth Circuit vacated the district court’s denial and remanded
this case in 2001.
Defendants submitted a Renewed Motion to Terminate the
Amended Judgment. After some delay in the district court, the
case was transferred to a different judge in April 2008, and
that judge scheduled an evidentiary hearing for August 2008.
The district court noted that this schedule, which was more
rushed than either party desired, was necessary because the
PLRA required the court to “promptly rule on any motion to
modify or terminate prospective relief in a civil action with
respect to prison conditions.” 18 U.S.C. § 3626(e)(1). When
the defendants asked that the hearing be postponed, the dis-
trict court again emphasized the “grave urgency of this pro-
ceeding” and denied their Motion to Continue.
GRAVES v. ARPAIO 17057
The parties jointly submitted a report recommending a
schedule for discovery in anticipation of the August hearing.
The report contemplated that the hearing would focus on
whether there were ongoing and systemic violations of the
rights of pretrial detainees held in Maricopa County jails.
Plaintiffs briefly suggested that, if the district court found that
there were ongoing violations, the court then hold a second
hearing where defendants could propose a plan for addressing
those violations. The district court largely adopted the parties’
scheduling recommendations, but made clear that there would
be only one hearing covering both liability and remedies.
Combining the hearings posed no hardship to either party, the
district court explained, and there was no reason for further
delay.
The district court heard twelve days of evidence and argu-
ment in August and September 2008. While the hearing was
ongoing, each party submitted a brief suggesting that the court
hold a second hearing on remedies if plaintiffs prevailed on
liability. The district court issued the Second Amended Judg-
ment and accompanying Findings of Fact and Law in October
2008.
Sheriff Arpaio timely appeals.
DISCUSSION
I. Separate Hearing on Remedies
Sheriff Arpaio contends that the district court did not give
him an adequate opportunity to propose a plan for correcting
the ongoing constitutional violations found by the district
court. In Lewis v. Casey, 518 U.S. 343 (1996), the Supreme
Court held that the district court erred when, after finding
ongoing constitutional violations in prisons operated by the
Arizona Department of Corrections, it delegated responsibil-
ity for devising a remedial plan to a special master. Id. at 363.
Although the Arizona Department of Corrections was given
17058 GRAVES v. ARPAIO
an opportunity to object to the special master’s proposed plan,
“[t]he State was entitled to far more than an opportunity for
rebuttal.” Id. “[C]onsiderations of comity . . . require giving
the States the first opportunity to correct the errors made in
the internal administration of their prisons.” Id. at 362.
[1] While Lewis is clear that prison officials must be given
an opportunity to propose remedies in the first instance, the
Supreme Court did not specify whether that opportunity must
come after the district court finds ongoing constitutional vio-
lations. The Court did suggest that, ideally, a district court
would first determine whether there are ongoing violations,
then assign the state “the task of devising a Constitutionally
sound program” to correct those constitutional violations, and
then finally approve the state’s plan subject to any amend-
ments necessary to address well-founded objections raised by
the prisoners. Id. at 362 (internal quotation marks omitted).
The Court recommended this procedure but did not require it.
[2] The district court did not err by requiring Sheriff
Arpaio to propose remedies at the twelve-day hearing on the
Renewed Motion to Terminate. District courts have broad dis-
cretion when it comes to trial management. See Navellier v.
Sletten, 262 F.3d 923, 941 (9th Cir. 2001) (“We review such
challenges to trial court management for abuse of discre-
tion.”); Hangarter v. Provident Life and Acc. Ins. Co., 373
F.3d 998, 1021 (9th Cir. 2004) (“A district court’s refusal to
bifurcate a trial is accordingly reviewed for an abuse of dis-
cretion.”). Federal-state comity requires a district court to give
prison officials an opportunity to propose remedies; the Con-
stitution does not also dictate the precise timing for that pro-
posal or how that proposal should be submitted for
consideration by the court. Such logistical issues are best left
to the district court’s discretion. In light of the PLRA’s clear
instruction that a district court “promptly rule on any motion
to modify or terminate prospective relief in a civil action with
respect to prison conditions,” 18 U.S.C. § 3626(e)(1), and the
lower court’s reasonable desire to act quickly to curb ongoing
GRAVES v. ARPAIO 17059
civil rights violations at Maricopa County jails, we cannot say
that it was an abuse of discretion for the district court to hear
evidence on both rights and remedies at one hearing.
II. Relief Necessary to Address Current and Ongoing
Violations of Prisoners’ Rights
The district court ordered Sheriff Arpaio to house pretrial
detainees taking psychotropic medications in cells where the
temperature does not exceed 85° F and to provide detainees
with food that satisfies the Dietary Guidelines. Sheriff Arpaio
argues that this prospective relief violates the PLRA because
the temperature and food in Maricopa County jails do not vio-
late the Eighth or Fourteenth Amendments and, even if it did,
the ordered relief is not the least intrusive means to correct
those violations.
[3] Under the PLRA, prospective relief regarding prison
conditions is terminable upon the motion of any party. 18
U.S.C. § 3626(b)(1)(A). The 1995 Amended Judgment, like
the original 1981 judgment, was “granted in the absence of a
finding by the court that the relief is narrowly drawn, extends
no further than necessary to correct the violation of the Fed-
eral right, and is the least intrusive means necessary to correct
the violation of the Federal right.” Id. § 3626(b)(2).1 The
PLRA provides that such a judgment must terminate immedi-
ately unless the district court makes written findings demon-
strating that prospective relief “remains necessary to correct
a current and ongoing violation” and satisfies the need-
narrowness-intrusiveness requirements. Id. at § 3626(b)(3).
Rather than terminate the prospective relief, the district court
opted to modify the Amended Judgment and make the
required written findings.
1
Courts have referred to this as the “ ‘need-narrowness-intrusiveness’ ”
inquiry. Pierce v. County of Orange, 526 F.3d 1190, 1205 (9th Cir. 2008)
(quoting Handberry v. Thompson, 436 F.3d 52, 64 (2d Cir. 2006)).
17060 GRAVES v. ARPAIO
[4] When a party moves to terminate prospective relief
under § 3626(b), the burden is on the movant to demonstrate
that there are no ongoing constitutional violations, that the
relief ordered exceeds what is necessary to correct an ongoing
constitutional violation, or both. See Gilmore v. California,
220 F.3d 987, 1007-1008 (9th Cir. 2000); see also Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367, 383 (1992)
(“[A] party seeking modification of a consent decree bears the
burden of establishing that a significant change in circum-
stances warrants revision of the decree.”). In his Reply Brief,
Sheriff Arpaio argues that the district court erred by placing
the burden on him to demonstrate that the § 3626(b) require-
ments were met. The district court did not err and, in any
event, arguments raised for the first time in a reply brief are
waived. See United States ex rel. Meyer v. Horizon Health
Corp., 565 F.3d 1195, 1199 n.1 (9th Cir. 2009).
The district court’s factual findings regarding conditions at
the Maricopa County jails are reviewed for clear error. See
Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002).
Whether those facts demonstrate an Eighth or Fourteenth
Amendment violation is a question of law that we review de
novo. Id. If we agree with the district court that there are
ongoing and systemic constitutional violations in Maricopa
County jails, then we must decide whether the prospective
relief ordered by the district court was appropriate. The stan-
dard of review is abuse of discretion. See Hoptowit v. Ray,
682 F.2d 1237, 1245-46 (9th Cir. 1982). The district court
abuses its discretion by fashioning relief that violates the
PLRA. See Molski v. Evergreen Dynasty Corp., 500 F.3d
1047, 1056-57 (9th Cir. 2007) (“A district court abuses its dis-
cretion when it bases its decision on an incorrect view of the
law . . . .”). See also United States v. Hinkson, 585 F.3d 1247,
1261-62 (9th Cir. 2009) (en banc) (“[T]he first step of our
abuse of discretion test is to determine de novo whether the
trial court identified the correct legal rule to apply to the relief
requested . . . . [T]he second step of our abuse of discretion
test is to determine whether the trial court’s application of the
GRAVES v. ARPAIO 17061
correct legal standard was (1) illogical, (2) implausible, or (3)
without support in inferences that may be drawn from the
facts in the record.” (internal quotation marks omitted)).
a. Prospective Relief to Address Dangerously High
Temperatures
i. Factual Findings
The district court found that air temperatures above 85° F
greatly increase the risk of heat-related illnesses for individu-
als who take psychotropic medications and found further that
pretrial detainees taking psychotropic medications have been
held in areas where the temperature has exceeded 85° F.
These two findings are not clearly erroneous.
[5] Plaintiffs’ psychiatric expert testified that many psy-
chotropic medications, including those most likely to be pre-
scribed to pretrial detainees, cause patients to suffer from a
significantly increased risk of heat-related illness when ambi-
ent air temperatures reach 85° F. The defendants’ own expert
confirmed that high temperatures can “affect someone’s state
when they are taking . . . psychotropic medications.” On the
basis of this testimony, the district court reasonably concluded
that temperatures in excess of 85° F are dangerous for pretrial
detainees taking psychotropic medications. Sheriff Arpaio
argues that this finding is wrong because the record shows
that some psychotropic medications affect the body’s ability
to regulate heat, not all such medications. Even if the district
court’s over-generalization was incorrect, that error was
harmless. Fed. R. Civ. P. 61. As we explain below, a more
narrow factual finding would not have caused the district
court to order more narrow prospective relief.
[6] Furthermore, plaintiffs’ expert testified that he had
found many seriously mentally ill detainees in segregation
cells where temperatures are known to exceed 85° F, includ-
ing some detainees on anti-psychotic medications. Although
17062 GRAVES v. ARPAIO
he had the burden of proof, Sheriff Arpaio did not introduce
rebuttal evidence in support of his claim that pretrial detainees
taking psychotropic medications are not housed in cells where
the temperature is dangerously high. Considering the evidence
in the record, we cannot say that the district court’s findings
of fact were clearly erroneous.
ii. Legal Conclusions
[7] The district court concluded that the “Eighth Amend-
ment requires that the temperature of the areas in which pre-
trial detainees are held or housed does not threaten their
health or safety.” We agree. We have held that the “Eighth
Amendment guarantees adequate heating” but not necessarily
a “comfortable” temperature. Keenan v. Hall, 83 F.3d 1083,
1091 (9th Cir. 1996). One measure of an inadequate, as
opposed to merely uncomfortable, temperature is that it poses
“a substantial risk of serious harm.” Farmer v. Brennan, 511
U.S. 825, 834 (1994). The district court did not err, therefore,
in concluding that dangerously high temperatures that pose a
significant risk to detainee health violate the Eighth Amend-
ment. Accepting the district court’s factual finding that tem-
peratures in excess of 85° F greatly increase the risk of heat-
related illness for pretrial detainees taking psychotropic medi-
cations, it follows that the Eighth Amendment prohibits hous-
ing such pretrial detainees in areas where the temperature
exceeds 85° F.
iii. Prospective Relief
Sheriff Arpaio argues that the prospective relief ordered by
the district court violates the PLRA because it is not narrowly
tailored to meet the requirements of the Eighth Amendment.
The district court ordered Sheriff Arpaio to house all detain-
ees taking psychotropic medications in temperatures that do
not exceed 85° F, not just those pretrial detainees taking psy-
chotropic medications that affect the body’s ability to regulate
heat. The Eighth Amendment protects against dangerously
GRAVES v. ARPAIO 17063
high temperatures, and temperatures in excess of 85° F are
dangerous only for the latter, more narrow category of pretrial
detainees.
[8] The PLRA does not require that prospective relief
exactly map onto the requirements of the Eighth Amendment.
Rather, the statute authorizes relief that is “necessary to cor-
rect” the ongoing constitutional violation found by the district
court. 18 U.S.C. § 3626(a)(1)(A), (b)(3). The district court
could have ordered Sheriff Arpaio to house pretrial detainees
in areas where the temperature does not exceed 85° F if those
detainees take psychotropic medications that affect the body’s
ability to regulate heat, but that relief would have been insuf-
ficient to correct the ongoing Eighth Amendment violations at
Maricopa County jails. The district court found that mental
health screening and recording-keeping in Maricopa County
jails is inadequate, and as a result Sheriff Arpaio does not
know which pretrial detainees are taking which medications.
Sheriff Arpaio does not contest these findings. Given that
Sheriff Arpaio does not know which pretrial detainees are tak-
ing medications that affect the body’s ability to regulate heat,
limiting relief to that category of pretrial detainees would
have been impracticable and thus inadequate to correct the
Eighth Amendment violation found by the district court. It
was not an abuse of discretion for the district court to order
prospective relief that covered all pretrial detainees who take
psychotropic medications.2
b. Prospective Relief to Address Inadequate Food
[9] The district court concluded that the Eighth Amend-
ment requires that “prisoners receive food that is adequate to
2
Of course, if record-keeping were to be improved so as to allow Sheriff
Arpaio to determine which detainees take phychotropic medicine that does
not interfere with the ability to regulate body heat, Sheriff Arpaio might
wish to seek modification of the district court’s order. But that situation
was not before the district court, nor now before us.
17064 GRAVES v. ARPAIO
maintain health.” LeMaire v. Maass, 12 F.3d 1444, 1456 (9th
Cir 1993). The Amended Judgment required that detainees be
provided food that meets or exceeds the Department of Agri-
culture’s Dietary Guidelines. The Dietary Guidelines recom-
mend 2400 calories daily for males aged 19-30 with a
sedentary activity level, and 2600-2800 calories daily for
males aged 19-30 with a moderately active lifestyle. The dis-
trict court found that, if Sheriff Arpaio afforded pretrial
detainees the amount of recreation time they were entitled to
under the Eighth and Fourteenth Amendments, most pre-
detainees would fall into the “moderately active” category.
The Maricopa County dietician testified that he designs
menus to provide each prisoner with approximately 2400 to
2500 calories a day. The district court did not credit this testi-
mony because the menus submitted to the court were exceed-
ingly vague, it was clear that the dietician did not actually
know what prisoners were fed, and substantial testimony from
pretrial detainees established that they are often given food
that is overripe, moldy, and generally inedible. The district
court ultimately found that pretrial detainees are not given
food that satisfies the Dietary Guidelines and that Sheriff
Arpaio had produced no evidence showing that the Dietary
Guidelines exceed what was necessary for adequate nutrition.
Sheriff Arpaio does not contest the district court’s conclu-
sion that the Eighth Amendment requires “adequate nutrition”
or the court’s factual findings.3 He argues only that the relief
ordered by the Amended Judgment and now the Second
Amended Judgment — that Sheriff Arpaio “provide food to
pretrial detainees that meets or exceeds the United States
Department of Agriculture’s Dietary Guidelines for Ameri-
3
Sheriff Arpaio contends in his Reply Brief that the district court’s find-
ing that the food served to pretrial detainees does not satisfy the Dietary
Guidelines was clearly erroneous because plaintiffs did not introduce
expert witness testimony in support of that finding. This argument was not
raised in his opening brief and thus waived. See Meyer, 565 F.3d at 1199
n.1. Furthermore, the burden was on Sheriff Arpaio, not the plaintiffs, to
prove current jail conditions. See Gilmore, 220 F.3d at 1007.
GRAVES v. ARPAIO 17065
cans” — is not narrowly tailored to the requirements of the
Eighth Amendment. We disagree.
As the movant, the burden was on Sheriff Arpaio to dem-
onstrate that the relief ordered by the Amended Judgment
went beyond what is necessary to remedy the ongoing consti-
tutional violations at the Maricopa County jails. See Gilmore,
220 F.3d at 1008 (holding that the district court erred by not
“plac[ing] the burden on the state to show that the 1972 Order
exceeded the constitutional minimum”). Sheriff Arpaio does
not point to any evidence in the record supporting his asser-
tion that 2600 to 2800 calories is more than what is required
for adequate nutrition. Instead, he relies on this court’s deci-
sion in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir. 1982), which
states that a court “may consider opinions of experts and per-
tinent organizations” when determining whether prison condi-
tions violate the Eighth Amendment, “[b]ut these opinions
will not ordinarily establish constitutional minima.” Id. at
1246. While instructive, Hoptowit is not dispositive; Hoptowit
discussed what a district court may consider when determin-
ing the minimum required by the Eighth Amendment, while
we are concerned with whether the PLRA’s narrow tailoring
requirement is violated because the Dietary Guidelines are too
far from the Eighth Amendment minimum.
[10] The abuse of discretion standard does not require us
to measure the distance between the Eighth Amendment’s
adequate nutrition standard and the nutrition standards estab-
lished by the United States Dietary Guidelines. It requires that
we are satisfied that the two are not so far apart that adopting
the Dietary Guidelines is “illogical, implausible, or without
support in inferences that may be drawn from facts in the
record,” Hinkson, 585 F.3d at 1264, and therefore violative of
the PLRA’s narrow tailoring requirement. In light of the evi-
dence in the record — which includes nothing from Sheriff
Arpaio to suggest that the Dietary Guidelines exceed what is
necessary for adequate nutrition — we cannot say that it was
17066 GRAVES v. ARPAIO
an abuse of discretion for the district court to order Arpaio to
provide food that satisfies the Dietary Guidelines.
CONCLUSION
The district court gave Sheriff Arpaio an adequate opportu-
nity to propose a plan for correcting the ongoing Eighth
Amendment violations in Maricopa County jails. The pro-
spective relief ordered by the district court did not go beyond
what was necessary to correct those violations. Accordingly,
the Second Amended Judgment is AFFIRMED.