Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010). · Go Syfert
Graves v. Arpaio, 623 F.3d 1043 (9th Cir. 2010). Cases Citing This Book View Copy Cite
159 citation events (159 in the last 25 years) across 14 distinct courts.
Strongest positive: Wendy Cunning v. Skye Bioscience, Inc. (ca9, 2024-10-22)
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Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) cacd 2025
C.D. Cal. · 2025 · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are waived.
discussed Cited as authority (verbatim quote) Wendy Cunning v. Skye Bioscience, Inc.
9th Cir. · 2024 · quote attribution · 1 verbatim quote · confidence high
district courts have broad discretion when it comes to trial management.
discussed Cited as authority (verbatim quote) Mollica v. County of Sacramento
E.D. Cal. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are waived.
discussed Cited as authority (verbatim quote) (PC) Suarez v. Clark
E.D. Cal. · 2023 · signal: see · quote attribution · 1 verbatim quote · confidence high
arguments raised for the first time in a reply 9 brief are waived
discussed Cited as authority (verbatim quote) Unigestion Holding, S.A. v. UPM Technology, Inc.
D. Or. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are waived.
discussed Cited as authority (verbatim quote) Equine Legal Solutions, PC v. This Old Horse, Inc.
D. Or. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
arguments raised for the first time in a reply brief are waived
discussed Cited as authority (verbatim quote) Comcast of Oregon II, Inc. v. City of Beaverton
D. Or. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
arguments raised for the first time in a reply brief are waived
discussed Cited as authority (verbatim quote) (PC)Calloway v. Youssee
E.D. Cal. · 2022 · quote attribution · 1 verbatim quote · confidence high
the 20 district court did not err . . . in concluding that dangerously high temperatures that pose a 21 significant risk to detainee health violate the eighth amendment.
discussed Cited as authority (verbatim quote) Alpine 4 Holdings Incorporated v. Finn Management GP LLC
D. Ariz. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are waived.
discussed Cited as authority (verbatim quote) Chaverri v. Platinum LED Lights LLC
D. Ariz. · 2022 · signal: see · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are 28 waived.
discussed Cited as authority (verbatim quote) Moe v. Commissioner Social Security Administration
D. Or. · 2021 · quote attribution · 1 verbatim quote · confidence high
arguments raised for the first time in a reply brief are waived
discussed Cited as authority (verbatim quote) Carreno v. 360 Painting, LLC.
S.D. Cal. · 2020 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
rguments raised for the first time in a reply brief are waived.
cited Cited as authority (rule) Gilligan
N.D. Cal. · 2026 · confidence medium
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010).
cited Cited as authority (rule) Estrada
E.D. Cal. · 2025 · confidence medium
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 28 | 2010) (noting arguments raised for the first time in a reply brief are waived). 11
discussed Cited as authority (rule) (PC) Armstrong v. County of Plumas
E.D. Cal. · 2025 · confidence medium
“One measure of an inadequate, as opposed to merely 18 uncomfortable, temperature is that it poses ‘a substantial risk of serious harm.’” Graves v. 19 Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (per curiam) (quoting Farmer, 511 U.S. at 834 ). 20 Plaintiff claims his cell is “freezing” and that he became sick as a result.
discussed Cited as authority (rule) Yellowcake, Inc. v. Morena Music, Inc.
E.D. Cal. · 2025 · confidence medium
(Id.) Accordingly, “any new arguments in their Reply brief based 7 upon improperly introduced, new declarations must be stricken, as those arguments have been 8 waived.” (Id.) Morena cites Ninth Circuit cases Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 9 2010) and Provenz v. Miller, 102 F.3d 1478 , 1483 (9th Cir. 1996). 10 Federal Civil Procedure Rule 26(a) requires a party, “without awaiting a discovery 11 request, provide . . . the name of each individual likely to have discoverable information that the 12 disclosing party may use to support” a pretrial motion.
discussed Cited as authority (rule) (PC) Lloyd v. Ochoa
E.D. Cal. · 2025 · confidence medium
(ECF Nos. 33 and 34.) In 12 his reply, Plaintiff asserts he should be allowed to rescind the agreement because the Court 13 presiding over the settlement conference “didn’t take into consideration Plaintiff’s request for 14 punitive and compensatory damages” (ECF No. 41 at 1:17-19), and Plaintiff was informed he 15 “hadn’t exhausted the retaliation claim.” (Id. at 1:20-22.) 16 “[A]rguments raised for the first time in a reply brief are waived.” Graves v. Arpaio, 17 623 F.3d 1043, 1048 (9th Cir. 2010). 18 Additionally, neither of the reasons stated for the first time in Plaint…
discussed Cited as authority (rule) Joel Soileau v. Space Exploration Technologies Corp.
C.D. Cal. · 2024 · confidence medium
A–D, ECF No. 22-1 to 22-4 26 (arguing for the first time that SpaceX’s principal place of business is in California).) “[A]rguments raised for the first time in a reply brief are waived.” Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 27 2010).
cited Cited as authority (rule) Joy Johnson v. Navient Corporation
C.D. Cal. · 2024 · confidence medium
Remand 6.) However, “arguments raised for the first time in a reply 24 brief are waived.” See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010).
discussed Cited as authority (rule) Johnson v. Garrett
D. Or. · 2024 · confidence medium
Prisoners must receive food that is adequate to maintain health, but the food “need not be tasty or aesthetically pleasing.” Lemaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993); Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010).
discussed Cited as authority (rule) Hanson v. State of Oregon, Legislative Assembly
D. Or. · 2024 · signal: cf. · confidence medium
See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007); cf. Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (noting that under the Federal Rules of Appellate Procedure, “arguments raised for the first time in a reply brief are waived”).
discussed Cited as authority (rule) Sfr Investments Pool 1, LLC v. Bank of America, N.A.
9th Cir. · 2023 · confidence medium
Nevada’s excused tender doctrine permits a deedholder to preserve its deed of trust in foreclosure without tendering on the HOA lien “when evidence shows that the party entitled to payment had a known policy of 1 In its reply brief, SFR argues for the first time that Thunder Properties applies only prospectively and therefore does not govern here. “[A]rguments raised for the first time in a reply brief are waived.” Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010).
discussed Cited as authority (rule) David Lew v. The City of Los Angeles
C.D. Cal. · 2023 · confidence medium
PREGERSON 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 || for the first time ina reply brief are waived.” Graves v. Arpaio, 623 F.3d 1043, 1048 (9th 26 Il Cir. 2010). 27 28 15
discussed Cited as authority (rule) Wallace v. Washington County Jail
D. Or. · 2023 · confidence medium
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (noting that “arguments raised for the first time in a reply brief are waived”); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).
discussed Cited as authority (rule) Coles v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Bryant Jr. v. Davis
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Walker v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Shabazz v. Broomfield
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Mills v. Broomfield
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) O'Neal v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 11 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 12 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 13 detainees housed in high temperature locations and taking psychotropic medications impacting the 14 body’s ability to regulate heat, even though defendant was not specifically aware of which 15 detainees were taking those medications). 16 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) (PC) Wilson v. Orr
E.D. Cal. · 2023 · confidence medium
However, arguments and evidence presented for the first time in a reply are generally waived, 11 see Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (per curiam) (“arguments raised for 12 the first time in a reply brief are waived”), and should not be considered unless the non-moving 13 party has been given an opportunity to respond, Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 14 1996).
discussed Cited as authority (rule) Smith v. State of California
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 10 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 11 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 12 detainees housed in high temperature locations and taking psychotropic medications impacting the 13 body’s ability to regulate heat, even though defendant was not specifically aware of which 14 detainees were taking those medications). 15 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Phillips v. Diaz
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 10 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 11 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 12 detainees housed in high temperature locations and taking psychotropic medications impacting the 13 body’s ability to regulate heat, even though defendant was not specifically aware of which 14 detainees were taking those medications). 15 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Ulep v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 10 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 11 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 12 detainees housed in high temperature locations and taking psychotropic medications impacting the 13 body’s ability to regulate heat, even though defendant was not specifically aware of which 14 detainees were taking those medications). 15 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Bolden v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 10 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 11 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 12 detainees housed in high temperature locations and taking psychotropic medications impacting the 13 body’s ability to regulate heat, even though defendant was not specifically aware of which 14 detainees were taking those medications). 15 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Watson v. Allison
N.D. Cal. · 2023 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 10 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 11 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 12 detainees housed in high temperature locations and taking psychotropic medications impacting the 13 body’s ability to regulate heat, even though defendant was not specifically aware of which 14 detainees were taking those medications). 15 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Szanto v. Szanto
D. Or. · 2022 · confidence medium
Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (noting that “arguments raised for the first time in a reply brief are waived”); Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need not consider arguments raised for the first time in a reply brief.”).
discussed Cited as authority (rule) Lee v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 13 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 14 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 15 detainees housed in high temperature locations and taking psychotropic medications impacting the 16 body’s ability to regulate heat, even though defendant was not specifically aware of which 17 detainees were taking those medications). 18 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs …
discussed Cited as authority (rule) Vines v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Lopez v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Johnson v. Broomfield
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Demings v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Vo v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Hollis v. Allison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Wilson v. Warden of San Quentin State Prison
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
discussed Cited as authority (rule) Jones v. Broomfield
N.D. Cal. · 2022 · confidence medium
See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (“courts . . . have 9 recognized that many inmates can simultaneously be endangered by a single policy”); Graves v. 10 Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (defendant violated constitutional rights of jail 11 detainees housed in high temperature locations and taking psychotropic medications impacting the 12 body’s ability to regulate heat, even though defendant was not specifically aware of which 13 detainees were taking those medications). 14 In their prior motions to dismiss, defendants argued that Pro Se Plaintiffs f…
cited Cited as authority (rule) (PC) Littleton v. Montiez
E.D. Cal. · 2022 · confidence medium
Graves v. Arpaio, 623 F.3d 1043, 1050 (9th Cir. 2010) (per curiam).
discussed Cited as authority (rule) Walter Balla v. State of Idaho (2×)
9th Cir. · 2022 · confidence medium
The court required defendants to file a motion to terminate and prove that “there are no ongoing constitutional violations, that the relief ordered exceeds what is necessary to correct an ongoing constitutional violation, or both,” quoting Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010).
discussed Cited as authority (rule) Smith v. Mendoza
N.D. Cal. · 2022 · confidence medium
“One measure of an inadequate, as opposed to merely 15 uncomfortable, temperature is that it poses ‘a substantial risk of serious harm.’” Graves v. Arpaio, 16 623 F.3d 1043, 1049 (9th Cir. 2010) (quoting Farmer, 511 U.S. at 834 ).
discussed Cited as authority (rule) CoreCivic of Tennessee v. International Union, Security, Police and Fire Professionals of America
D. Ariz. · 2022 · confidence medium
We will 15 not tolerate such sandbagging.” Nat’l Wrecking Co. v. Int’l Bhd. of Teamsters, Local 731, 16 990 F.2d 957 , 960 (7th Cir. 1993). 17 In a twist of irony, the Union fails to explain why this Court need address its 18 arguments at all as, typically, “arguments raised for the first time in a reply brief are 19 waived.” Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010).
Fred GRAVES and Isaac
v.
Popoca, Plaintiffs-Appellees, v. Joseph M. ARPAIO, Sheriff of Maricopa County, Defendant-Appellant, and Fulton Brock; Don Stapley; Andrew Kunasek; Max W. Wilson; Mary Rose Wilcox, Defendants
08-17601.
Court of Appeals for the Ninth Circuit.
Oct 13, 2010.
623 F.3d 1043
Michele M. Iafrate and Courtney Rachel Cloman, Iafrate & Associates, Phoenix, AZ, for the defendant-appellant., Larry A. Hammond, Sharad H. Desai, and Debra A. Hill, Osborn Maledon, P.A., Phoenix, AZ; Dan Pochoda, ACLU of Arizona, Phoenix, AZ; and Margaret Winter, ACLU — American Civil Liberties Union, Washington, D.C., for the plaintiff-appellee.
Betty'B, Fletcher, Clifton, Bea.
Cited by 126 opinions  |  Published
Pinpoint authority: bottom 56%

OPINION

PER CURIAM:

Defendant Joseph M. Arpaio, the Sheriff of Maricopa County, appeals the district court’s Second Amended Judgment. The judgment requires him to take affirmative measures to address conditions in Maricopa County jails that violate the Eighth and Fourteenth Amendments. Sheriff Arpaio challenges two provisions of the Second Amended Judgment: its requirement that he provide pretrial detainees taking psychotropic 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 Department of Agriculture’s Dietary Guidelines for Americans (“Dietary Guidelines ”). He argues that these provisions are procedurally flawed because the district court ordered prospective 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.

[*1046] 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 comprehensive 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 (“PLEA”), Pub.L. 104-134, § 801-810, 110 Stat. 1321 (1996) (codified as amended in scattered sections 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 district court again emphasized the “grave urgency of this proceeding” and denied their Motion to Continue.

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 argument 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 Judgment 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, 116 S.Ct. 2174, 135[*1047] L.Ed.2d 606 (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 responsibility for devising a remedial plan to a special master. Id. at 363, 116 S.Ct. 2174. Although the Arizona Department of Corrections was given 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. “[Cjonsiderations of comity ... require giving the States the first opportunity to correct the errors made in the internal administration of their prisons.” Id. at 362, 116 S.Ct. 2174.

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 violations. 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 amendments necessary to address well-founded objections raised by the prisoners. Id. at 362, 116 S.Ct. 2174 (internal quotation marks omitted). The Court recommended this procedure but did not require it.

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 discretion 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 discretion.”); 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 discretion.”). Federal-state comity requires a district court to give prison officials an opportunity to propose remedies; the Constitution does not also dictate the precise timing for that proposal 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 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 Giddelines. Sheriff Arpaio argues that this prospective relief violates the PLRA because the temperature and food in Maricopa County jails do not violate the Eighth or Fourteenth Amendments and, even if it did, the ordered relief is not the least intrusive means to correct those violations.

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[*1048] court that the relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal 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 immediately unless the district court makes written findings demonstrating 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.

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, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (“[A] party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances 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) requirements 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 standard 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 discretion 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 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 individuals who take psychotropic medications[*1049] 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.

Plaintiffs’ psychiatric expert testified that many psychotropic medications, including those most likely to be prescribed to pretrial detainees, cause patients to suffer from a significantly increased risk of heat-related illness when ambient 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.

Furthermore, plaintiffs’ expert testified that he had found many seriously mentally ill detainees in segregation cells where temperatures are known to exceed 85° F, including some detainees on anti-psychotic medications. Although 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

The district court concluded that the “Eighth Amendment 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (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 Amendment. Accepting the district court’s factual finding that temperatures in excess of 85° F greatly increase the risk of heat-related illness for pretrial detainees taking psychotropic medications, it follows that the Eighth Amendment prohibits housing such pretrial detainees in areas where the temperature exceeds 85° F.

in. 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 detainees taking psychotropic medications in temperatures that do not exceed 85° F, not just those pretrial detainees taking psychotropic medications that affect the body’s ability to regulate heat. The Eighth Amendment protects against dangerously high temperatures, and temperatures in excess of 85° F are dangerous only for the latter, more narrow category of pretrial detainees.

[*1050] 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 correct” 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 insufficient 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 taking 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

The district court concluded that the Eighth Amendment requires that “prisoners receive food that is adequate to 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 Agriculture’s Dietary Guidelines. The Dietary Guidelines recommend 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 district 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 predetainees 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 testimony because the menus submitted to the court were exceedingly 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 conclusion that the Eighth Amendment requires “adequate nutrition” or the court’s factual findings. [3] He argues[*1051] 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 Americans ” — is not narrowly tailored to the requirements of the Eighth Amendment. We disagree.

As the movant, the burden was on Sheriff Arpaio to demonstrate that the relief ordered by the Amended Judgment went beyond what is necessary to remedy the ongoing constitutional 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 assertion that 2600 to 2800 calories is more than what is required for adequate nutrition. Instead, he relies on this court’s decision in Hoptowit v. Ray, 682 F.2d 1237 (9th Cir.1982), which states that a court “may consider opinions of experts and pertinent organizations” when determining whether prison conditions violate the Eighth Amendment, “[b]ut these opinions will not ordinarily establish constitutional minima.” Id. at 1246. While instructive, Hoptovnt is not dispositive; Hoptovnt discussed what a district court may consider when determining 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.

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 established 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 evidence 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 an abuse of discretion for the district court to order Arpaio to provide food that satisfies the Dietary Gtddelines.

CONCLUSION

The district court gave Sheriff Arpaio an adequate opportunity to propose a plan for correcting the ongoing Eighth Amendment violations in Maricopa County jails. The prospective relief ordered by the district court did not go beyond what was necessary to correct those violations. Accordingly, the Second Amended Judgment is AFFIRMED.

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)).

2

. Of course, if record-keeping were to be improved so as to allow Sheriff Arpaio to determine which detainees take psychotropic 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.

3

. Sheriff Arpaio contends in his Reply Brief that the district court’s finding that the food served to pretrial detainees does not satisfy the Dietcuy Guidelines was clearly erroneous[*1051] 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.