Miriam Mendiola-Martinez v. Joseph Arpaio

Related Cases

                       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.