author: TALLMAN, Circuit Judge.

text:
    Miriam MENDIOLA-MARTINEZ, Plaintiff-Appellant, v. Joseph M. ARPAIO, Maricopa 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.
    No. 14-15189
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 11, 2016 San Francisco, California
    Filed September 12, 2016

      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.
    Before: BARRY G. SILVERMAN, RAYMOND C. FISHER, and RICHARD C. TALLMAN, Circuit Judges.
   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 Care District (“the Medical Center”) where she had her baby, 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 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, — U.S. -, 135 S.Ct. 2046, 192 L.Ed.2d 177 (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 Sheriffs 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 Estrel-la 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. 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 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. 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-Mar-tinez’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-Mar-tinez 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-Mar-tinez was placed on a gurney before she was lifted into the ambulance and that her hands were cuffed in front of her.

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 Her-tig 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-sectio‘n, 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-Mar-tinez’s friend came to the hospital to take Angel for the remainder of his mother’s 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-Mar-tinez 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 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 “[mjedical 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-Mar-tinez 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 Sheriffs 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 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, 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 complaint alleged that all of the defendants were deliberately indifferent to her serious medical needs in violation of the Eighth 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-Mar-tinez 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-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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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 in-' mates in labor and postpartum recovery violated her right to be free from discrimination based oh her national origin.

The County Defendants and the Medical Center each filed motions for summary judgment. 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-Mar-tinez’s motions, and directed the clerk to close the case. The district court clerk later taxed costs against Mendiola-Mar-tinez, 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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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).

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. 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, 98 S.Ct. 2018 (“[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, 833 F.3d at 1075, 2016 WL 4268955, at *10 (quoting City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (internal quotations omitted)). “Where a plaintiff claims that a municipal action itself violates federal law,” as Men-diola-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, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). In such situations, “proof that the municipality’s decision was unconstitutional would suffice to establish that the municipality itself was liable for the plaintiffs constitutional injury.” Id. at 405, 117 S.Ct. 1382.

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, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002), or serious medical needs, see Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

First, a plaintiff must prove that she suffered a “sufficiently serious” deprivation, such as “incarceration] 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. 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, 113 S.Ct. 2475, 125 L.Ed.2d 22 (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, 114 S.Ct. 1970. 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, 117 S.Ct. 1382. While a claim of deliberate indifference against a prison official employs a subjective standard, Farmer, 511 U.S. at 837, 114 S.Ct. 1970, 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, 833 F.3d at 1076, 2016 WL 4268955, at *ll. This Castro objective standard 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, 109 S.Ct. 1197 (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, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Government officials are entitled to qualified immunity unless: (1) a plaintiffs 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, 129 S.Ct. 808. As permitted under Pearson, id. at 236, 129 S.Ct. 808, 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.

But as a threshold matter, Mari-copa 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, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); see also Lowry v. City of San Diego, 818 F.3d 840, 855 (9th Cir. 2016) (“[Qualified immunity analysis is irrelevant to the issue of Monell liability.”) (citing Brandon v. Holt, 469 U.S. 464, 471, 105 S.Ct. 873, 83 L.Ed.2d 878 (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, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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 Ar-paio, like Maricopa County, is not eligible for qualified immunity and awarding summary judgment on that basis was improper.

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 Men-diola-Martinez’s constitutional rights. See Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. 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. 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 Her-tig to remove the cuffs. We cannot resolve this important factual issue when reviewing a summary-judgment 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.

The doctor who treated Mendiola-Mar-tinez, 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:

[Sjhackling 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 plaintiffs 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 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 plaintiffs 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, “[cjommon 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 “[wjhile 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. It is true that the plaintiffs in Nelson, Villegas, and Women Prisoners may have endured greater injury or risk of injury than Men-diola-Martinez due to the type of restraints used and the duration and timing of those restraints. In Nelson, for example, the plaintiffs 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 plaintiffs 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, 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, 113 S.Ct. 2475. 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 extraordinary circumstance.” Ariz. Rev. Stat. Ann. § 31-601(A). 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 labor 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 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, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[Mjaintaining 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, 99 S.Ct. 1861. For this reason, in excessive force and conditions of confinement cases, we instruct juries to defer to prison officials’ judgments in adopting arid 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, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); see also Chess, 790 F.3d at 973 (“[Sjecurity 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-Mar-tinez brings against them: do her shackling claims 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. 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, — U.S. -, 132 S.Ct. 1510, 1518, 182 L.Ed.2d 566 (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 penological circumstances in light of the severity of the risk to which the inmates are exposed.”). A jury could find in this case that the restraints used on Men-diola-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-Mar-tinez 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-oper-ative 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.”).

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 Men-diola-Martinez demonstrates that they were deliberately indifferent to her constitutional rights. See Farmer, 511 U.S. at 837, 842, 114 S.Ct. 1970; see also supra pp. 1247-50. 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, 833 F.3d at 1077, 2016 WL 4268955, at *12 (quoting Gibson v. County of Washoe, 290 F.3d 1175, 1188 n.10 (9th Cir. 2002), overruled by Castro, 833 F.3d at 1075-76, 2016 WL 4268955, at *11). Therefore, 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 Men-diola-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, 122 S.Ct. 2508 (“The obvious cruelty inherent in this practice should have provided respondents with some notice that their alleged conduct violated [the plaintiffs] 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, 114 S.Ct. 1970 (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 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. A jury could find that 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 Men-diola-Martinez’s shackling claims as they relate to shackling while Mendiola-Mar-tinez was in labor and leaving the Medical Center. We affirm summary judgment for the County Defendants on Mendiola-Mar-tinez’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. At trial, the district court 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-Mar-tinez 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 Men-diola-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, Mendio-la-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, 114 S.Ct. 1970.

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. La-Valley, 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.

IV

We next address whether summary judgment for the County Defendants and the Medical Center was proper on Mendi-ola-Martinez’s breast pump claims. Mendi-ola-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, 98 S.Ct. 2018; see also Canton, 489 U.S. at 394, 109 S.Ct. 1197 (“[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 plaintiffs 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, 109 S.Ct. 1197. 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, 98 S.Ct. 2018. Because Mendiola-Martinez lacks a basis for municipal liability, we affirm summary judgment for Defendants on her breast pump claims.

y

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. 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 deprivation” in violation of the Eighth Amendment. Foster, 554 F.3d at 814. In. Foster, denying an inmate sixteen meals over twenty-three days was sufficiently serious to violate the Eighth Amendment. Id. at 812-13. The denial of those m,eals, 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-Mar-tinez 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), 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. Furthermore, without knowing what a pregnancy diet should include, no jury could gauge whether the extra milk and prenatal 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) (“[TJhis 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 im-' pacts 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.

The district court construed this equal protection claim as a challenge to the Arizona Bailable Offenses Act, rather than the MCSO Restraint- Policy. But Mendio-la-Martinez’s amended complaint and supplemental appellate briefing clearly show that she is challenging the Restraint Policy, not the Arizona Bailable Offenses Act. Because we may affirm summary judgment on any ground supported by the record, Lee v. Kemna, 534 U.S. 362, 391, 122 S.Ct. 877, 151 L.Ed.2d 820 (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 Mendi-ola-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, 105 S.Ct. 3249, 87 L.Ed.2d 313 (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 Cmty. Hope Found., 538 U.S. 188, 194, 123 S.Ct. 1389, 155 L.Ed.2d 349 (2003) (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed.2d 450 (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 Ar-paio 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 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 disparity],” 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, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (recognizing that prison officials “are to take all necessary steps to ensure 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, 106 S.Ct. 2548.

VII

Our final task is to determine whether the district court abused its discretion by taring 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-Mar-tinez 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 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 “dispos-itive.” Id. Additionally, Mendiola-Mar-tinez’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, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (quoting Wolff v. McDonnell, 418 U.S. 539, 566, 94 S.Ct. 2963, 41 L.Ed.2d 935 (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-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.

      . 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.

      . 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.

      . The Medical Center records indicate that on December 20, 2009, Mendiola-Martinez was 38 weeks and four days pregnant.

      . 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.

      . 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. Hendrickson, - U.S. -, 135 S.Ct. 2466, 2475, 192 L.Ed.2d 416 (2015) (stating that "pretrial detainees (unlike convicted prisoners) cannot be punished at all”); see also Castro v. County of Los Angeles, No. 12-56829, 833 F.3d 1060, 1067-1072,2016 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.

      . Theses motions did not include the individual John and Jane Doe Officers, Doctors, and Nurses. '

      . 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 does not appeal the apparent dismissal of the individual Jane and John Doe defendants. See supra notes 6 & 7.

      . 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, 117 S.Ct. 1382 (citing Canton, 489 U.S. at 388, 109 S.Ct. 1197).

      . These duties under the Eighth Amendment are imposed on the states via the Fourteenth Amendment. Wilson v. Seiter, 501 U.S. 294, 296-97, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).

      .We previously avoided the question of whether to apply Farmers 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, 833 F.3d at 1075-76, 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, 114 S.Ct. 1970.
      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. 833 F.3d at 1076, 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, 109 S.Ct. 1197 ("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, 109 S.Ct. 1197. 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, 112 S.Ct. 1061, 117 L.Ed.2d 261 (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. The same "conceptual difficulty” of searching for the "subjective state of mind of a government entity” applies. Farmer, 511 U.S. at 841, 114 S.Ct. 1970.

      . 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).

      . 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 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 Mendi-ola-Martinez’s incarceration required restraining inmates in labor, unless or until a medical professional asked an officer to remove the restraints.

      . 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).

      . 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.

      . 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.

      . 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.

      . Castro overruled Gibson only to the extent that Gibson suggested a subjective test for showing that a municipality was deliberately indifferent. See Castro, 833 F.3d at 1075-76, 2016 WL 4268955, at *11. Therefore, Gibsons 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 acknowledge that substantial risks of serious harm exist’ may demonstrate municipal knowledge of that risk”).

      . 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 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.

      . 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 sufficient. See, e.g., Jordan v. Gardner, 986 F.2d 1521, 1530 (9th Cir. 1993).

      . 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, 106 S.Ct. 1078. 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, 122 S.Ct. 2508; Whitley, 475 U.S. 312 at 319, 106 S.Ct. 1078, 89 L.Ed.2d 251 ("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, 97 S.Ct. 285. 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.

      . 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.

      . 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).


source: Caselaw Access Project

author: McKEOWN, Circuit Judge:

license: Public Domain

text:
    Douglas L. KIMZEY, pro se, Plaintiff-Appellant/Cross-Appellee, v. YELP! INC., Defendant-Appellee/Cross-Appellant.
    Nos. 14-35487
    14-35494
    United States Court of Appeals, Ninth Circuit.
    Submitted September 2, 2016  Seattle, Washington
    Filed September 12, 2016

      Douglas L. Kimzey, Bellevue, Washington, pro se Plaintiff-Appellant/Cross-Ap-pellee.
    Venkat Balasubramani, Focal PLLC, Seattle, Washington; Aaron Schur, Yelp Inc., San Francisco, California; for Defendant-Appellee/Cross-Appellant.
    Before: MICHAEL DALY HAWKINS, M. MARGARET McKEOWN, and ANDRE M. DAVIS, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

       ■j'kg Honorable Andre M. Davis, Senior Circuit Judge for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.

   OPINION

McKEOWN, Circuit Judge:

Section 230 of the Communications Decency Act (“CDA”) “immunizes providers of interactive computer services against liability arising from content created by third parties.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1162 (9th Cir. 2008) (en banc) (footnote omitted) (citing 47 U.S.C. § 230(c)). This case pushes the envelope of creative pleading in an effort to work around § 230.

The complaint centers on two negative business reviews posted on Yelp’s website about Douglas Kimzey’s locksmith business. Instead of asserting that Yelp was liable in its well-known capacity as the passive host of a forum for user reviews — a claim without any hope under our precedents, such as Roommates. Com — Kimzey cryptically alleged that Yelp in effect created and developed content. Kimzey claims that Yelp is responsible for causing a review from another site to appear on its page, providing a star-rating function that transforms user reviews into Yelp’s own content, and “causing] [the statements] to appear” as a promotion on Google’s search engine. This phrasing seeks to take advantage of the fact that the CDA’s “grant of immunity applies only if the interactive computer service provider is not also an ‘information content provider,’ which is defined as someone who is ‘responsible, in whole or in part, for the creation or development of the offending content.” Id. at 1162 (quoting 47 U.S.C. § 230(f)(3)); see also FTC v. Accusearch Inc., 570 F.3d 1187, 1195 (10th Cir. 2009) (“The prototypical service qualifying for [CDA] immunity is an online messaging board (or bulletin board) on which Internet subscribers post comments and respond to comments posted by others.”).

Kimzey apparently hoped to plead around the CDA to advance the same basic argument that the statute plainly bars: that Yelp published user-generated speech that was harmful to Kimzey. See Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1105 (9th Cir. 2009) (holding that Yahoo! was immune from liability for negligently declining to remove indecent third-party content). We decline to open the door to such artful skirting of the CDA’s safe harbor provision. This case is in some sense a simple matter of a complaint that failed to allege facts sufficient to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). But it is also more consequential than that, given congressional recognition that the Internet serves as a “forum for a true diversity of ... myriad avenues for intellectual activity” and “ha[s] flourished ... with a minimum of government regulation.” 47 U.S.C. § 230(a)(3)-(4). Kimzey’s effort to circumvent the CDA’s protections through ■ “creative” pleading fails, and the district court did not err in granting Yelp’s motion to dismiss.

BACKGROUND

Yelp describes its websites and mobile applications as “providing] a forum for members of the public — free of charge — to read and write reviews about local businesses, government services, and other entities.” Kimzey owns -a locksmith business, Redmond Locksmith (aka “Redmond Mobile Locksmith”), that operates in the greater Seattle metropolitan area.

In September 2011, a Yelp user identified as “Sarah K” posted a review of Kim-zey’s business on the Yelp page for Redmond Mobile Locksmith:

THIS WAS BY FAR THE WORST EXPERIENCE I HAVE EVER ENCOUNTERED WITH A LOCKSMITH. DO NOT GO THROUGH THIS COMPANY. I had just flew [sic] back from a long business trip with absolutely no sleep, had to drive into work right after getting off the plane. I was so tired that I locked my keys in the car. So when I realized what happened I called Redmond Mobile. The gentlemen [sic] on the phone told me that a technician would be out ASAP and quoted me $50 for the service, which seemed reasonable. $35 for the service call and $15 for the lock. The technician called and said he’d be at my office in 30 min, an hour goes by and nothing. Call the company back to ask about the ETA and was greeted rudely by the person I had spoken to earlier. He took no responsibility. After the technician finally showed up, he was trying to charge me $35 for the service call and $175 for the lock. I got 20% off after trying to argue with him about being late and the incorrect quote. Supposedly, the lock is $15 and up. Bullshit. CALL THIS BUSINESS AT YOUR OWN RISK. I didn’t even need new keys. I just needed my car unlocked.

Sarah K gave Redmond Mobile Locksmith a rating of one out of five stars. Approximately one year later, in early September 2012, a person identified as “D K. Of Redmond Mobile Locksmith” posted a comment under Sarah K’s review, stating, “Yelp has Posted a Fraudulent review on our Business.” The comment included a hyperlink to essentially the same “review posted about a fraud operation known as ‘Redmond Mobile’ (425) 318-4257,” which was not Kimzey’s business name. Then Sarah K returned. She posted an update to her review:

I was just informed recently by a friend that this business has been trying to contact others on my friends list asking about my original review. A year ago, I had also received similar msgs from this business and also yelp requesting authentication of the review and the business directly asking me to take down the review because I must have gotten the company incorrect. So let me clarify, I do not work for a competitor of this business nor do I appreciate this type of harassment. I’ve already confirmed to Yelp that indeed this review was meant for Redmond Mobile Locksmith and I have the receipt to prove it. I will be issuing an official complaint to Yelp about this now.

Yelp’s administrative records showed that Sarah K was not associated with any internet protocol address associated with Yelp, nor was she ever employed by Yelp.

Kimzey filed a pro se complaint in the district court alleging that Yelp is liable for the reviews by Sarah K under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1964(c); the Washington Consumer Protection Act, Wash. Rev. Code § 19.86.020; and Washington’s libel law. Specifically, the complaint alleged that Yelp ‘‘caused to appear a Libelous Per Se statement ... on ... Google.” By “caused to appear,” Kimzey seems to assert that Yelp found the review on another website and posted it as a comment on its own website. Kimzey asserted that Yelp went on to publish the statements by Sarah K as “advertisements” or as a “promotion” on Google as part of a “Traffic Acquisition” program. After clicking on the “promotion,” a Google user would be “directed to Yelp.com and then shown Yelp sponsored [sic] advertising.” At the center of this allegedly creative process was a star rating, which Kimzey alleged “Yelp has developed and created” by “designing] the star image and creating] the color.”

Kimzey also alleged that the content of at least the first review posted by Sarah K bore the indicia of an “illegal scheme ... operated by the EL-AD Group, which uses thousands of fictitious locksmith business names on the Internet in every major US city, to promote themselves.” The connection between Yelp and this claimed scheme was not clearly articulated in the complaint: Kimzey alleged that EL-AD’s purported statement “transitioned to Yelp, com and was linked to the Plaintiffs [sic] business name” where it then “transitioned to Google.com as a Yelp promotion.”

Yelp moved to strike the complaint under Washington’s anti-SLAPP statute, Wash. Rev. Code § 4.24.525, and to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted the motion to dismiss, finding that § 230 of the CDA “immunizes [Yelp] from the entirety of [Kimzey]’s lawsuit” and that Kimzey “has not alleged non-conclusory factual content that is plausibly suggestive of a claim entitling him to relief.” The district court declined to rule on the anti-SLAPP motion.

Analysis

Section 230(c)(1) of the CDA “only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.” Barnes, 570 F.3d at 1100-01 (footnotes omitted). Yelp is plainly a provider of an “interactive computer service,” see 47 U.S.C. § 230(f)(2), a term that we interpret “expansively]” under the CDA, Carafano v. Metrosplash.com,, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003). As we observed in Roommates.Com, “[t]oday, the most common interactive computer services are websites.” 521 F.3d at 1162 n.6. There is likewise no question that Kimzey’s claims are premised on Yelp’s publication of Sarah K’s statements and star rating. In other words, the claim is directed against Yelp in its capacity as a publisher or speaker. See Barnes, 570 F.3d at 1102. The remaining question is therefore whether the information was “provided by another information content provider.” Id. at 1101.

Although the complaint is far from lucid and the opening brief cryptic to the point of opacity, we discern two discrete theories of Yelp’s alleged authorship. The first, and the simplest, theory is that Yelp created the review, possibly by copying a review previously posted on another website. This echoes the complaint in our re-cent opinion in Levitt, 765 F.3d 1123. There, a group of business owners alleged that ‘Yelp created negative reviews of their businesses and manipulated review and ratings content to induce them to purchase advertising through Yelp.” Id. at 1127.

We did not reach the CDA issue in Levitt, but we explained that for a plaintiff to “make a plausible .claim that Yelp authored [a review], it must plead facts tending to demonstrate that the ... review was not, as is usual, authored by a user.” Id. at 1135. A careful reading of the complaint reveals that Kimzey never specifically alleged that Yelp authored or created the content of the statements posted under the aegis of Sarah K, but rather that Yelp adopted them from another website and transformed them into its own stylized promotions on Yelp and Google. We have no trouble in this case concluding that threadbare allegations of fabrication of statements are implausible on their face and are insufficient to avoid immunity under the CDA. See Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (holding that a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ ” (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007))). Were it otherwise, CDA immunity could be avoided simply by reciting a common line that user-generated statements are not what they say they are.

It cannot be the case that the CDA and its purpose of promoting the “free exchange of information and ideas over the Internet” could be so casually eviscerated. See Carafano, 339 F.3d at 1122. This is not to say that CDA immunity extends to content created or developed by an interactive computer service; it does not. See Roommates.Com, 521 F.3d at 1162-63. But the immunity in the CDA is broad enough to require plaintiffs alleging such a theory to state the facts plausibly suggesting the defendant fabricated content under a third party’s identity. See Carafano, 339 F.3d at 1123. Here there are no such facts.

The second, and more convoluted, theory is that Yelp transformed the review by Sarah K into its own “advertisement” or “promotion” on Google and featured a unique star-rating system as the mantlepiece of its creation. As this case illustrates, it is not difficult to allege in a complaint that a publisher of information engaged in creation by transformation. Here, for instance, Kimzey alleged that Yelp designed and created its signature star-rating system, and thereby served as “author” of the one-star rating given by Sarah K. Kimzey also alleged that Yelp “republishe[d]” the statements on Google as “newly developed advertisements,” and in that fashion became the actual author of that iteration of the content. These characterizations have superficial appeal, but they extend the concept of an “information content provider” too far and would render the CDA’s immunity provisions meaningless.

The CDA defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3). The meanings of the words “creation” and “development” are hardly self evident in the online world, and our cases have struggled with determining their scope. See, e.g., Roommates.Com, 521 F.3d at 1171 (clarifying the language used in Carafano because it was “unduly broad” and recognizing that a website could be a developer of content where it encouraged users to provide illegal content); Carafano, 339 F.3d at 1124 (holding that a dating site could not “be considered an ‘information content provider’ under the [CDA] because no profile has any content until a user actively creates it”); Batzel v. Smith, 333 F.3d 1018, 1031 (9th Cir. 2003) (concluding that “development of information” requires “something more substantial than merely editing portions of an e-mail and selecting material for publication”). These cases establish that a website may lose immunity under the CDA by making a material contribution to the creation or development of content.

It is clear here, however, that neither of the allegedly creative actions taken by Yelp falls within our interpretation of the terms “creation” or “development” of information. Even were we convinced that a one-star rating could be understood as defamatory — a premise we do not embrace, see Aviation Charter, Inc. v. Aviation Research Grp./US, 416 F.3d 864, 870-72 (8th Cir. 2005) (finding ratings inactionable opinion statements), abrogated on other grounds by Syngenta Seeds, Inc. v. Bunge N. Am., Inc., 773 F.3d 58 (8th Cir. 2014)—the rating system does “absolutely nothing to enhance the defamatory sting of the message” beyond the words offered by the user. Roommates.Com, 521 F.3d at 1172.

Our foundation is Carafano, where we held that the mere fact that an interactive computer service “classifies user characteristics ... and collects responses to ... questions ... does not transform [it] into'a developer of the underlying misinformation.” 339 F.3d at 1124 (internal quotation marks omitted). Carafano cited Gentry v. eBay, Inc., a case from the California Court of Appeal, in which the court examined the eBay rating system that displayed user feedback through both a star symbol and a color code. See 339 F.3d at 1124 (citing 99 Cal.App.4th 816, 121 Cal.Rptr.2d 703 (2002)). Apropos of Yelp’s star rating, the eBay rating system was “simply a representation of the amount of such positive information received by other users of eBay’s web site” and was thus protected by § 230. Gentry, 121 Cal.Rptr. at 717, 535 P.2d 1171; see also Levitt v. Yelp! Inc., Nos. C-10-1321 EMC, C-10-2351 EMC, — F.3d -, -, 2011 WL 5079526, *7 (N.D. Cal. Oct. 26, 2011) (applying Gentry’s, logic to Yelp and concluding that “[s]ince the aggregate rating ... is likewise based on user-generated data, the Court finds that aspect of Gentry persuasive”), affirmed on other grounds by Levitt, 765 F.3d 1123.

We fail to see how Yelp’s rating system, which is based on rating inputs from third parties and which reduces this information into a single, aggregate metric is anything other than user-generated data. Indeed, the star-rating system is best characterized as the kind of “neutral tool[ ]” operating on “voluntary inputs” that we determined did not amount to content development or creation in Roommates. Com. 521 F.3d at 1172; see also Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014) (holding that a “website does not create or develop content when it merely provides a- neutral means by which third parties can post information of their own independent choosing online”).

Nor do Kimzey’s arguments that Yelp can be held liable for “republishing” the same content as advertisements or promotions on Google survive close scrutiny. To the extent Kimzey’s complaint aims at alleged downstream distribution of the starred review, § 230’s immunity defeats the claim. Nothing in the text of the CDA indicates that immunity turns on how many times an interactive computer service publishes “information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Just as Yelp is immune from liability under the CDA for posting user-generated content on its own website, Yelp is not liable for disseminating the same content in essentially the same format to a search engine, as this action does not change the origin of the third-party content. See Ascentive, LLC v. Op. Corp., 842 F.Supp.2d 450, 476 (E.D.N.Y. 2011) (“[Search engine optimization and] use of plaintiffs’ marks to make [defendant’s] pages appear higher in search engine results list ... do not render [defendant] an information content provider.”). Simply put, proliferation and dissemination of content does not equal creation or development of content.

AFFIRMED.

      . We have previously noted that Yelp “provides an online directory that allows registered users to post reviews and rank businesses on a scale of one to five stars” and, “[biased on these user rankings, ..: assigns businesses an overall ‘star’ rating.” Levitt v. Yelp! Inc., 765 F.3d 1123, 1126 (9th Cir. 2014).

      . In the cross-appeal, Yelp argued that the district court erred by failing to rule on Yelp’s motion to strike under the Washington anti-SLAPP statute. Yelp argued that "[tjreating an anti-SLAPP motion as moot based on a Rule 12(b)(6) dismissal frustrates [the] purpose [of the anti-SLAPP statute], and treats the anti-SLAPP statute as a procedural rule, rather than one creating substantive rights and defenses.” The issue on cross-appeal is moot in light of the Washington Supreme Court’s invalidation of the Washington anti-SLAPP statute, which occurred after the district court's dismissal and after the briefs on appeal were filed. See Davis v. Cox, 183 Wash.2d 269, 351 P.3d 862 (2015) (en banc).

      . Kimzey's claims under RICO and the Washington Consumer Protection Act, which mirror his defamation/publication claim, fall because he failed to allege key elements, such as “racketeering activity” and a “pattern of racketeering activity” under RICO, see 18 U.S.C. §§ 1961, 1962(a)-(c), or the capacity to “deceive a substantial portion of the public” . under the Consumer Protection Act, see Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 719 P.2d 531, 535 (1986) (en banc).

      . Our sister circuits have generally adopted Roommates.Com's "material contribution” to activity test and have consistently drawn the line at the “crucial distinction between, on the one hand, taking actions (traditional to publishers) that are necessary to the display of unwelcome and actionable content and, on the other hand, responsibility for what makes the displayed content illegal or actionable.” Jones v. Dirty World. Bntm’t Recordings LLC, 755 F.3d 398, 413-14 (6th Cir. 2014); see also Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 257-58 (4th Cir. 2009) (distinguishing Roommates.Com on the basis that the content that the website solicited from users was not itself unlawful); Accusearch, 570 F.3d at 1197-201 (denying immunity where a website intentionally made illegal purchases of confidential consumer information).

      . It is unclear whether the republication on Google that Kimzey alleges amounts to anything more than the passive indexing of Yelp reviews by Google for the purpose of populating its search engine results. If this is what Kimzey means, then the claims fail because he pled no plausible theory of liability for Yelp stemming from Google’s actions. Tipping to Kimzey’s favor in construing his claim, we assume that Kimzey alleges Yelp proactively posted advertisements or promotional links on Google.