IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30814

APRIL NICOLE BEDINGFIELD, as mother & nature tutrix, on behalf of

Elizabeth Macy Bedingfield; ELIZABETH BEDINGFIELD, as executrix, on

behalf of Jimmy Elton Bedingfield, II, Succession, 

Plaintiff–Appellants

v.

LARRY C. DEEN, in his capacity as Sheriff of Bossier Parish; MARK

TOLOSO, in his capacity as Warden, Deputy Sheriff or Officer of the Bossier

Parish Correctional Facility; JERRY SIMMS, in his capacity as Deputy

Sheriff, Assistant Warden or an Officer of the Bossier Parish Correctional

Facility; SAINT PAUL FIRE AND MARINE INSURANCE COMPANY,

Defendants–Appellees

Appeals from the United States District Court

for the Western District of Louisiana

USDC No. 5:09-CV-369

Before KING, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Jimmy “Trey” Bedingfield was diagnosed with terminal colon cancer while

incarcerated at the Bossier Parish Sheriff’s Office Work Release Facility, and he

died three months after his diagnosis. Plaintiffs–Appellants Elizabeth Macy

United States Court of Appeals

Fifth Circuit

F I L E D

September 6, 2012

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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Bedingfield, Trey’s minor daughter (through her mother April Bedingfield), and

Mrs. Elizabeth Bedingfield and Mr. Jimmy Elton Bedingfield, Trey’s parents,

brought this civil action for monetary damages against Defendants–Appellees

Bossier Parish Sheriff Larry Deen, Warden Mark Toloso, Assistant Warden

Lieutenant Jerry Sims, and St. Paul Fire and Marine Insurance Company.

Plaintiffs asserted a variety of claims, including claims under both federal and

state law that Defendants failed to provide reasonable medical care to Trey. The

district court granted summary judgment in favor of Defendants and dismissed

all of Plaintiffs’ claims. Plaintiffs appeal the district court’s judgment and

several of the court’s evidentiary and discovery rulings. For the following

reasons, we AFFIRM the judgment of the district court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Statement of Facts

Jimmy “Trey” Bedingfield (“Trey”) was convicted of felony theft, and on

November 27, 2007, he was sentenced to serve five years in jail, with three years

suspended and with credit for time served. On January 18, 2008, Trey was

accepted into the Bossier Parish Sheriff’s Office Work Release Facility (“Work

Release Facility”). On January 21, 2008, Trey began working as a freight puller

for Hardware Resources. Trey’s last day of employment was May 23, 2008. 

While he was employed, Trey only missed five days of work due to illness. 

On March 2, 2008, Trey complained of nausea, vomiting, diarrhea,

weakness, and jaundice, and he saw a paramedic at the Work Release Facility. 

Trey was referred to LSU Hospital, where he was evaluated by physicians. On

March 4, Trey returned to the Work Release Facility with a discharge summary

report from LSU Hospital that stated that an esophagogastroduodenoscopy

(“EGD” or “endoscopy”) procedure was scheduled for March 13. The report also

stated that Trey should not take any “aspirin-type products including PeptoBismol, nonsteroidal anti-inflammatory medications, as well as BC Powders”

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and that Trey would meet with a physician on March 20 to review the results of

the procedure. On March 5, Registered Nurse David Gorman (“Nurse Gorman”),

an employee of the Bossier Parish Sheriff’s Office, made arrangements for jail

personnel to take Trey to the endoscopy procedure on March 13.

On March 9, Trey submitted a “kite communication form” to Assistant

Warden Lieutenant Jerry Sims (“Assistant Warden Sims”). The form indicated

that Trey was refusing the EGD procedure. Trey wrote on the form:

Lt. Simms I’m suppose[d] to go back to the Hospital on the 13 and th

have a scope ran down in my stomach to check for ulcers. It[’]s not

a life threatening deal or anything. I have medical insurance threw

[sic] Willis Knighton and my own doctor I’ve had for years. I get out

Aug 8 this year, I would rather him do this when I get out. I would th

like to turn down going back to the hospital if that[’]s ok. I feel fine

since I’ve been back. Thank you.

On March 10, Trey also signed a “refusal of medical treatment form.” The form

indicated that Trey refused the “M.D. Appointment” and “Medical Treatments”

“scheduled or ordered for [him] by the medical staff.” Trey signed his name

underneath the following typed paragraph on the form:

I am signing this on my own free will without any coercion. I was

informed of the consequences of refusal, which may directly affect

my medical condition. I accept those consequences and release

Bossier Sheriff’s Department, Bossier Parish Police Jury, and/or

medical staff of all legal ramifications concerning this matter.

In his affidavit, Nurse Gorman stated that he had talked to Trey about the EGD

procedure and that Trey told him that “he did not want to attend the procedure.” 

On March 19, Trey complained of stomach cramps and of vomiting “clear

water,” and he was seen by Nurse Gorman. Nurse Gorman, who stated that he

was unaware of LSU Hospital’s orders to the contrary, gave Trey several Pepto

Bismol tablets. Nurse Gorman advised Trey to report any further problems, and

Nurse Gorman told Assistant Warden Sims that, if Trey reported any additional

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problems, he should be sent to LSU Hospital. Trey did not report any additional

problems that night, but missed work the next day due to illness. 

Trey next reported a medical problem on May 6, 2008, and he saw Nurse

Gorman regarding chest pain. Nurse Gorman performed an EKG and drew

blood that was sent to LSU Hospital for evaluation. Nurse Gorman also

scheduled Trey to see Dr. Russell Roberts (“Dr. Roberts”) on May 9, which was

the date of Dr. Roberts’s next visit to the Work Release Facility. On May 9, Dr.

Roberts examined Trey and evaluated the May 6 blood work and EKG. Dr.

Roberts scheduled a follow-up appointment for Trey a month later, at which time

additional blood work would be compared with the May 6 blood work.

On May 27, 2008, Trey complained of abdominal pain, and he saw Nurse

Gorman. According to Nurse Gorman, Trey “indicated for the first time . . . that

he had experienced weight loss.” Nurse Gorman immediately sent Trey to LSU

Hospital for evaluation. On May 27, Trey was diagnosed with colon cancer that

had metastasized to other organs, including his liver. According to Warden

Mark Toloso (“Warden Toloso”), on Saturday, May 31, LSU Hospital told him of

Trey’s terminal illness and requested permission forTrey to have visitors at LSU

Hospital. Warden Toloso stated that he granted permission for visitation that 1

same day. Trey’s family visited him daily at LSU Hospital starting on or about

June 1, 2008. Trey was discharged from LSU Hospital to hospice care on June

28, 2008. He passed away due to the cancer on September 3, 2008.

In addition to the medical problems outlined above, Plaintiffs assert that

Trey experienced more medical issues but did not report them because of threats

made by Warden Toloso. Plaintiffs state that the intimidation began on

February 11, 2008, when Warden Toloso chastised Trey for missing work due to

a back injury. According to Plaintiffs, Trey told his family and friends (over the

 LSU Hospital is not a secure facility, so visitation is not permitted while an inmate 1

is receiving treatment, unless the inmate has a terminal illness. 

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telephone and through letters) that he did not report his medical problems

because he did not want to be removed from the Work Release Facility and be

placed back in the general prison population. 

B. Statement of Proceedings

On March 9, 2009, Plaintiffs–Appellants Elizabeth Macy Bedingfield,

Trey’s minor daughter (through her mother and natural tutrix April

Bedingfield), and Mrs. Elizabeth Bedingfield and Mr. Jimmy Elton Bedingfield, 2

Trey’s parents, brought this civil action for monetary damages against 3

Defendants–Appellees Bossier Parish Sheriff Larry Deen (“Sheriff Deen”),

Warden Toloso, Assistant Warden Sims, and St. Paul Fire and Marine Insurance

Company. Plaintiffs filed their complaint in the United States District Court for

the Western District of Louisiana. Plaintiffs alleged that Defendants failed to

provide reasonable and timely medical care to Trey. In Trey’s wrongful death

and survival actions, Elizabeth Macy Bedingfield asserted claims under 42

U.S.C. § 1983 for (1) the denial of adequate medical care in violation of Trey’s

Eighth Amendment rights and (2) the denial of visitation in violation of his First

Amendment rights. She also asserted Louisiana state-law negligence claims

alleging a denial of reasonable medical care. Trey’s parents asserted a claim

under § 1983 for the denial of familial association with Trey in violation of their

First and Fourteenth Amendment rights. They also asserted loss of consortium

claims, bystander claims, and subrogation claims to recover funeral expenses.

On October 19, 2010, the magistrate judge granted Sheriff Deen’s request

for a protective order prohibiting Plaintiffs from taking his deposition. The

Elizabeth Macy Bedingfield, Trey’s surviving child, possesses the sole right to pursue 2

Trey’s wrongful death and survival actions. April Bedingfield, Trey’s ex-wife, is only acting

on behalf of her minor daughter in this lawsuit. 

Mr. Jimmy Elton Bedingfield, Trey’s father, passed away on February 8, 2011. On

3

April 27, 2011,the district court ordered that Mrs. Elizabeth Bedingfield,the surviving spouse

and named executrix of his estate, be substituted as plaintiff for the decedent.

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magistrate judge reasoned that “[t]here is no allegation in the Complaint that

the Sheriff knew Trey or personally participated in any decisions regarding

Trey’s incarceration or medical treatment.” The magistrate judge stated,

however, that “[i]f Plaintiffs learn through other depositions or discovery that

the Sheriff has unique personal knowledge relevant to the issues in this case,

then Plaintiffs should re-urge the matter with the court.” On February 22, 2011,

Plaintiffs filed a motion to take the deposition of Sheriff Deen, arguing that

“Sheriff Deen, because of his position and authority, possesses knowledge and

information that is vital to their case.” The magistrate judge denied this motion,

reasoning that Plaintiffs did not demonstrate how Sheriff Deen’s position

provided him with “unique personal knowledge about the facts of this case.” The

district court affirmed the magistrate judge’s order. 

On February 11, 2011, Defendants filed a motion for summary judgment,

seeking the dismissal of all of Plaintiffs’ claims. Defendants’ summary judgment

evidence included the LSU Hospital discharge summary report, the kite

communication form, the refusal of medical treatment form, Trey’s medical

records, and the affidavits of Warden Toloso, Assistant Warden Sims, Dr.

Roberts, and Nurse Gorman. Warden Toloso stated in his affidavit that he was

aware that Trey had elected to delay the endoscopy procedure, but “was not

aware that [Trey] had any serious medical problem.” He further stated that

“[w]orkers are not penalized by the Sheriff’s Office for requesting or receiving

medical treatment.” Assistant Warden Sims similarly stated in his affidavit that

he was not aware that Trey had any serious medical needs. Defendants also

included the expert report of Dr. Alan B. Grosbach (“Dr. Grosbach”) regarding

causation. Dr. Grosbach opined that, based on “the well-established slow growth

rate of colon cancer,” it is “more likely than not [that Trey’s] cancer was not only

present but already widely metastatic at the time of his March hospitalization.” 

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Dr. Grosbach concluded that Trey’s “cancer would still have been incurable had

it been diagnosed in March.”

On March 25, 2011, Plaintiffs filed a motion in opposition to Defendants’

motion for summary judgment. Plaintiffs argued that Defendants’ deliberate

indifference to Trey’s medical needs led to Trey’s cancer not being diagnosed in

a timely manner. Plaintiffs’ summary judgment evidence included the affidavit

and deposition testimony of Mrs. Elizabeth Bedingfield and the deposition

testimony of Brent Weir, a family friend. Plaintiffs also attached the affidavit

of Dr. Neilan Prather (“Dr. Prather”). Dr. Prather, who was board certified in

internal medicine, was Trey’s physician prior to his incarceration in 2007. Based

on his review of Trey’s 2008 medical records, Dr. Prather concluded that “the

delay in diagnosis and appropriate treatment of Trey Bedingfield’s cancer of

approximately two months was, more probable than not, a substantial

contributing factor in worsening [his] prognosis and subsequent failure to

respond to treatment (chemotherapy) thereby significantly worsening his

outcome as defined by survival time and quality of life.”

On April 18, 2011, Defendants filed a motion to strike the affidavit of Dr.

Prather, arguing that his opinions should have been disclosed earlier pursuant

to Federal Rule of Civil Procedure 26. On May 6, Defendants filed a Daubert

motion to exclude Dr. Prather’s testimony. On June 16, during a status

conference, the district court orally granted Defendants’ motion to strike the

affidavit of Dr. Prather. The district court reasoned that Dr. Prather was not

Trey’s treating physician, but rather he was an expert whose forensic opinions

should have been, and were not, disclosed months earlier pursuant to Rule 26. 

The court then mooted Defendants’ Daubert motion. Plaintiffs filed a motion for

reconsideration of the court’s two rulings, arguing that “they believed in good

faith that Dr. Prather was [Trey’s] treating physician” and that the rulings were

“a significant penalty.” The district court denied Plaintiffs’ motion.

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On May 9, 2011, Defendants filed a motion for a protective order

prohibiting Plaintiffs from issuing discovery subpoenas after the March 15

discovery deadline set by the scheduling order. Defendants stated that on May

5, after the discovery deadline, they received a copy of Plaintiffs’ subpoena to

City-Tel Coin, Inc. (“City-Tel”) that sought to obtain telephone records and

recordings of Trey’s conversations with his family and friends while he was

incarcerated at the Work Release Facility. On May 23, the magistrate judge

granted Defendants’ motion and quashed Plaintiffs’ subpoena to City-Tel. The

magistrate judge explained that “Plaintiffs may not make an end-run around the

discovery deadline by issuing subpoenas to a third party” and that “Plaintiffs’

justifications for the untimely subpoena are unavailing.”

On June 2, 2011, Plaintiffs filed a motion in limine to strike the affidavit

and testimony of Dr. Grosbach, arguing that Dr. Grosbach’s expert medical

opinions had “no basis in fact or science.” The district court denied Plaintiffs’

motion. The court reasoned that the motion in limine was, “in actuality, a veiled

Daubert motion” and that Plaintiffs had filed the motion after the May 6

deadline for Daubert motions set by the scheduling order. The court noted that

Plaintiffs failed to offer a good faith explanation for missing the deadline and

concluded that it would “not entertain Plaintiffs’ untimely Daubert challenge.”

On July 27, 2011, the district court issued a comprehensive, thirty-five

page Memorandum Ruling granting Defendants’ motion for summary judgment. 

The court first addressed the admissibility of Plaintiffs’ evidence regarding

Warden Toloso’s alleged intimidation of Trey. Plaintiffs’ evidence consisted of

alleged statements made by Trey to his family and friends regarding this

intimidation, as set forth in the affidavit and deposition testimony of Mrs.

Elizabeth Bedingfield and Brent Weir. The defendants objected to this evidence

as inadmissible hearsay. The district court noted that “Plaintiffs make the

conclusory assertion that these statements . . . are admissible under Federal

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Rules of Evidence 803, 804, and 807,” but “supply little or no analysis.” In a

thorough analysis, the court determined that the challenged evidence was not

admissible under (1) Rule 803(3), the state of mind exception, (2) Rule 804(b)(2),

the dying declaration exception, and (3) Rule 807, the residual exception. The

court excluded Plaintiffs’ evidence as inadmissible hearsay. 

The district court next addressed Plaintiffs’ § 1983 claims that Defendants

were deliberately indifferent to Trey’s serious medical needs in violation of the

Eighth Amendment. Plaintiffs made two arguments in support of their claims:

(1) that Warden Toloso intentionally threatened Trey, causing him to forgo

medical treatment; and (2) that Warden Toloso and Assistant Warden Sims

knew that Trey’s medical condition was serious but allowed him to forgo the

scheduled EGD procedure. The court rejected Plaintiffs’ first argument because

the court had determined that Plaintiffs’ sole evidence in support of this

argument was inadmissible hearsay. With regard to the second argument, the

court addressed Plaintiffs’ contention that Trey posed a medical question in his

kite communication form that was ignored by Assistant Warden Sims. Plaintiffs

pointed to Trey’s statement that he “would like to turn down going back to the

hospital if that[’]s ok” and argued that the “if that[’]s ok” language asked

Assistant Warden Sims if it was safe for him to decline the EGD procedure. The

court determined that, even if the language could be interpreted as posing a

medical question, “there is no summary judgment evidence to support that

Assistant Warden Sims was deliberately indifferent in not interpreting the

document as a request for his medical opinion.” The court concluded that the

summary judgment evidence indicated that Trey saw medical personnel each

time he reported a problem and that Warden Toloso and Assistant Warden Sims

were not aware that Trey had any serious medical condition. The court held that

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there was no deliberate indifference and granted summary judgment to

Defendants on Plaintiffs’ § 1983 Eighth Amendment claims.4

The district court then granted summary judgment in favor of Defendants

on Plaintiffs’ Louisiana state-law claims for the denial of reasonable medical

care. The court reasoned that the summary judgment evidence indicated that

Trey saw medical personnel each time he requested treatment and thus that the

care provided was reasonable. Furthermore, the court held that Plaintiffs’

§ 1983 and state-law claims relating to the denial of medical care failed for lack

of evidence on causation. The court explained that Dr. Grosbach’s expert opinion

that Trey’s cancer was terminal in March 2008 was “not challenged by any

competent summary judgment evidence” by Plaintiffs, because the court had

granted Defendants’ motion to strike the affidavit of Dr. Prather.

The court then granted summary judgment to Defendants on Plaintiffs’

§ 1983 claims that Trey was denied his right to visitation with family for several

days in violation of his First Amendment rights. The court concluded that “there

is simply no evidence of a constitutional violation.” The court next granted

summary judgment to Defendants on Trey’s parents’ § 1983 claims that

Defendants violated “their constitutionally protected rights of familial

association.” The district court reasoned that “Warden Toloso and Assistant

Warden Sims are entitled to qualified immunity on the grounds that there was

no clearly established constitutional right of a parent to recover for intrusion on

a relationship with an adult child.”

The court next granted summary judgment to Defendants on Plaintiffs’

Louisiana state-law loss of consortiumclaims, reasoning that this cause of action

only applies “where death does not occur.” Furthermore, the court held that

Plaintiffs’ bystander claims “fail[] as a matter of law because Mr. and Mrs.

Because the court held that there was no deliberate indifference, the court concluded

4

that “it need not reach the Monell claim” against Sheriff Deen.

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Bedingfield acquired knowledge of their son’s injury after the fact [of the alleged

denial of medical care to Trey].” The court explained that the bystander cause

of action applies only to persons “who view an event causing injury to another

person, or who come upon the scene of the event soon thereafter.” Finally, the

court granted summary judgment to Defendants on Plaintiffs’ subrogation

claims because Plaintiffs premised their claim “on a finding that there was

wrongdoing on the part of” Defendants, and the court found no such wrongdoing. 

On July 27, 2011, the district court entered its judgment dismissing all of

Plaintiffs’ claims. Plaintiffs timely appealed the district court’s judgment and

several of the court’s evidentiary and discovery rulings.

II. DISCUSSION

A. Standard of Review

We review a district court’s grant of summary judgment de novo, applying

the same standard as the district court. Turner v. Baylor Richardson Med. Ctr.,

476 F.3d 337, 343 (5th Cir. 2007). Summary judgment is appropriate “if the

movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A

“genuine” dispute exists if, based on the evidence, a reasonable jury could return

a verdict for the nonmoving party. Hamilton v. Segue Software Inc., 232 F.3d

473, 477 (5th Cir. 2000). When reviewing a grant of summary judgment, “we

consider all of the evidence in the record but refrain from making credibility

determinations or weighing the evidence.” Turner, 476 F.3d at 343 (citation

omitted). “[W]e draw all reasonable inferences in favor of the nonmoving party.” 

Id. (citations and internal quotation marks omitted). “However, a party cannot

defeat summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence.” Id. (citation and internal quotation

marks omitted). We may affirm a grant of summary judgment “on any basis

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supported by the record.” See Rockwell v. Brown, 664 F.3d 985, 990 (5th Cir.

2011) (citation and internal quotation marks omitted).

We review a district court’s evidentiary and discovery rulings for abuse of

discretion. Gomez v. St. Jude Med. Daig Div. Inc., 442 F.3d 919, 927 (5th Cir.

2006) (citations omitted). “A trial court abuses its discretion when its ruling is

based on an erroneous view of the law or a clearly erroneous assessment of the

evidence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003)

(citation omitted). “If we find an abuse of discretion in admitting or excluding

evidence, we next review the error under the harmless error doctrine, affirming

the judgment, unless the ruling affected substantial rights of the complaining

party.” Id. (citation omitted).

B. Deliberate Indifference Claims

1. Applicable Law

The Eighth Amendment to the United States Constitution prohibits the

infliction of “cruel and unusual punishment.” The Supreme Court has stated

that the Eighth Amendment requires that prison officials provide inmates with

adequate medical care. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994);

Estelle v. Gamble, 429 U.S. 97, 103 (1976). In Estelle v. Gamble, the Supreme

Court held that “deliberate indifference to serious medical needs of prisoners

constitutes the ‘unnecessary and wanton infliction of pain,’ proscribed by the

Eighth Amendment.” 429 U.S. at 104 (internal citation omitted). In Farmer v.

Brennan, the Supreme Court elaborated on the standard of “deliberate

indifference,” explaining that “a prison official cannot be found liable under the

Eighth Amendment for denying an inmate humane conditions of confinement

unless the official knows of and disregards an excessive risk to inmate health or

safety.” 511 U.S. at 837; see also Stewart v. Murphy, 174 F.3d 530, 533-34 (5th

Cir. 1999). Mere negligence or medical malpractice does not constitute a

constitutional violation. See Stewart, 174 F.3d at 534. In order to make a

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showing of deliberate indifference, plaintiffs must provide evidence that “prison

officials refused to treat [the inmate], ignored his complaints, intentionally

treated him incorrectly, or engaged in any similar conduct that would clearly

evince a wanton disregard for any serious medical needs.” Gobert v. Caldwell,

463 F.3d 339, 346 (5th Cir. 2006) (footnote, citation, and internal quotation

marks omitted). 

2. The District Court’s Exclusion of Plaintiffs’ Hearsay Evidence

On appeal, Plaintiffs argue that the district court erred in excluding as

inadmissible hearsay their evidence regarding Trey’s alleged statements about

Warden Toloso’s threats and intimidation. Plaintiffs assert that, to the extent

that Trey’s statements are considered hearsay, the statements “are admissible

under the well-established exceptions to the hearsay rule set forth” in Federal

Rules of Evidence 803, 804, and 807.

We conclude that Plaintiffs’ arguments on appeal are unavailing. 

Plaintiffs have failed to provide any analysis demonstrating how Trey’s

statements fall under any of the cited hearsay exceptions. Also, we agree with

the district court’s thorough analysis and conclusion that Trey’s statements do

not fall under any of the hearsay exceptions. First, Trey’s statements are not

admissible under the Rule 803(3) state of mind exception. We have explained

that Rule 803(3) “does not permit the witness to relate any of the declarant’s

statements as to why he held the particular state of mind, or what he might have

believed that would have induced the state of mind.” United States v. Cohen,

631 F.2d 1223, 1225 (5th Cir. 1980) (emphasis added). In Cohen, this court

explained that Rule 803(3) “limit[s] those admissible statements to declarations

of condition—‘I’m scared’—and not belief—‘I’m scared because Galkinthreatened

me.’” Id. Here, Plaintiffs seek to introduce Trey’s statements that Warden

Toloso’s intimidation prevented him from reporting medical problems and

seeking medical treatment. Thus, these statements do not fall under the Rule

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803(3) exception because the statements do not simply demonstrate Trey’s state

of mind, but indicate why Trey held his particular state of mind. Id. 

Second, Trey’s alleged statements do not fall within the dying declaration

exception set forth in Rule 804(b)(2). In order to be admissible under this

exception, “the declarant must have spoken without hope of recovery and in the

shadow of impending death.” Shepard v. United States, 290 U.S. 96, 99 (1933);

see also Pippin v. Dretke, 434 F.3d 782, 793 n.10 (5th Cir. 2005). Plaintiffs failed

to provide any summary judgment evidence indicating that Trey made these

statements “in the shadow of impending death.” 

Third, Plaintiffs failed to show that Trey’s statements are admissible

under Rule 807. Rule 807, the residual exception to the hearsay rule, “is to be

‘used only rarely, in truly exceptional cases.’” United States v. Phillips, 219 F.3d

404, 419 n.23 (5th Cir. 2000) (citation omitted). “The proponent of the statement

bears a heavy burden to come forward with indicia of both trustworthiness and

probative force.” Id. (citation and internal quotation marks omitted). “In order

to find a statement trustworthy, a court must find that the declarant of

the . . . statement ‘was particularly likely to be telling the truth when the

statement was made.’” Id. (alteration in original) (citations and internal

quotation marks omitted). Plaintiffs argued to the district court and on appeal

that Trey had no motive to fabricate the statements and that the

“contemporaneous nature and consistency” of Trey’s statements demonstrate

their trustworthiness. However, Plaintiffs’ unsubstantiated assertions are

insufficient to provide the court with the indicia of reliability and

trustworthiness necessary to invoke Rule 807. We conclude that the district

court did not abuse its discretion in excluding Plaintiffs’ hearsay evidence. 

5

On appeal, Plaintiffs argue that the magistrate judge reversibly erred in granting 5

Defendants’ motion for a protective order that quashed Plaintiffs’ subpoena to City-Tel for the

telephone records and recordings of Trey’s telephone conversations during his incarceration. 

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3. Claims Against Warden Toloso and Assistant Warden Sims

On appeal, Plaintiffs present two arguments to demonstrate that Warden

Toloso and Assistant Warden Sims were deliberately indifferent to Trey’s

medical needs in violation of the Eighth Amendment. First, Plaintiffs argue that

Warden Toloso intimidated Trey, preventing him from reporting his medical

problems and receiving medical treatment. Second, Plaintiffs argue that

Warden Toloso and Assistant Warden Sims “knew that Trey had a serious

medical problem that was scheduled to be addressed [by the endoscopy

procedure], yet they were knowingly, willingly, and deliberately indifferent to it.”

First, we conclude that Plaintiffs’ argument regarding Warden Toloso’s

intimidation of Trey fails because Plaintiffs’ sole evidence supporting this

contention was properly excluded by the district court as inadmissible hearsay. 

Second, we conclude that Plaintiffs’ argument relating to Warden Toloso and

Assistant Warden Sims allowing Trey to forgo his endoscopy also fails. Through

the March 9 kite communication form and the March 10 refusal of medical

treatment form, Trey explicitly and voluntarily chose to forgo the endoscopy

procedure. Plaintiffs assert that the prison officials had an obligation to ensure

that Trey underwent the endoscopy even if Trey did not want to submit to the

procedure. However, Plaintiffs fail to cite any authority for the proposition that

Warden Toloso and Assistant Warden Sims were deliberately indifferent to

Trey’s health by not forcing Trey to undergo a medical procedure against his

will. 

The district court correctly concluded that the summary judgment

evidence indicates that Trey saw a medical provider each time he reported a

Plaintiffs contend that this evidence was “crucial to establish [their] claims,” yet Plaintiffs’

own correspondence with City-Tel indicates that records of these calls were no longer active.

We conclude that any error in the magistrate judge’s order was harmless. See Bocanegra, 320

F.3d at 584 (stating that evidentiary rulings are reviewed under the harmless error standard). 

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medical problem. Plaintiffs have not put forward any summary judgment

evidence that Warden Toloso or Assistant Warden Sims knew that Trey had a

serious medical need that was not being addressed, let alone that they prevented

Trey from receiving medical care. Thus, the district court properly concluded

that Warden Toloso and Assistant Warden Sims were not deliberately

indifferent to Trey’s medical needs.

4. Claim Against Sheriff Deen

Plaintiffs also asserted a Monell municipal liability claim against Sheriff

Deen, alleging that Sheriff Deen’s “policy of deliberate indifference” was the

moving force behind the harm to Trey. See Monell v. Dep’t of Soc. Servs. of

N.Y.C., 436 U.S. 658, 690-91 (1978). “A claim of municipal liability under

Section 1983 requires proof of three elements: a policymaker; an official policy;

and a violation of constitutional rights whose moving force is the policy or

custom.” Doe v. Covington Cnty. Sch. Dist., 675 F.3d 849, 866 (5th Cir. 2012) (en

banc) (citation and internal quotation marks omitted). The district court

correctly concluded that this claim fails because Plaintiffs did not create a

genuine issue of material fact regarding whether Trey suffered a constitutional

violation. “[T]here can be no § 1983 [municipal] liability unless [the plaintiff]

suffered a constitutional violation.” Id. at 867.6

C. Louisiana State-Law Negligence Claims

1. Applicable Law

 Plaintiffs argue on appeal that the district court erred in prohibiting the deposition

6

of Sheriff Deen. Plaintiffs assert that Sheriff Deen, as “chief policy maker,” had knowledge

relevant to Plaintiffs’ case. We conclude that Plaintiffs cannot show that the district court’s

evidentiary ruling affected their substantial rights. See Bocanegra, 320 F.3d at 584. In their

appellate brief, Plaintiffs state that the “evidence [they] sought to obtain from the Sheriff was

necessary to demonstrate [Monell] liability.” However, as explained above, Plaintiffs’ Monell

claim against Sheriff Deen already fails because Plaintiffs failed to create a genuine issue of

material fact regarding whether Trey suffered a constitutional violation.

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Under Louisiana law, the “standard of care imposed upon the Department

of Public Safety and Corrections in providing for the medical needs of inmates

is that those services be reasonable.” Robinson v. Stalder, 734 So. 2d 810, 812

(La. Ct. App. 1999) (footnote and citations omitted). In order to establish a

negligence claim, Plaintiffs must show that Defendants failed to provide Trey

with reasonable medical care and that Defendants’ substandard conduct was the

cause of Trey’s untimely death. See Mathieu v. Imperial Toy Corp., 646 So. 2d

318, 322 (La. 1994).

2. Analysis

In granting summary judgment in favor of Defendants on Plaintiffs’

negligence claims, the district court determined that (1) Plaintiffs did not

present any evidence that Defendants failed to provide reasonable medical care

to Trey and (2) Plaintiffs did not present any evidence that Defendants caused

Trey’s death. On appeal, Plaintiffs assert that Defendants were negligent

because Trey was not seen by a physician every time he reported a medical

problem. Plaintiffs also argue that Warden Toloso intimidated Trey, causing

him not to seek medical treatment. Plaintiffs further contend that the district

court erred in striking their expert evidence on causation.

We first consider whether Plaintiffs created a genuine issue of material

fact as to causation. In order to do so, we must address whether the district

court abused its discretion in striking the affidavit of Dr. Prather, Plaintiffs’

expert on causation. The district court granted Defendants’ motion to strike Dr.

Prather’s affidavit because Plaintiffs disclosed his affidavit five months after the

Rule 26 disclosure deadline in the court’s scheduling order. On appeal, 7

Plaintiffs concede that they erroneously designated Dr. Prather as a treating

physician and that they should have disclosed Dr. Prather’s report by the

 Rule 26 requires disclosures for a witness who is “retained or specially employed to

7

provide expert testimony in the case.” FED. R. CIV. P. 26(a)(2)(B).

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deadline in the scheduling order. However, Plaintiffs assert that we should

reverse the district court’s order because: (1) Plaintiffs believed in good faith that

Dr. Prather was a treating physician and thus exempt from the disclosure

deadline; (2) Dr. Prather’s testimony is crucial to the success of their claims; and

(3) no harm or prejudice resulted to Defendants from the lack of disclosure.

We have stated that a district court has broad discretion to enforce the

deadlines in its scheduling order. See Turnage v. Gen. Elec. Co., 953 F.2d 206,

208 (5th Cir. 1992) (noting that “a trial court’s decision to exclude evidence as a

means of enforcing a [scheduling] order must not be disturbed absent a clear

abuse of discretion”) (citation and internal quotation marks omitted). In striking

Dr. Prather’s affidavit, the district court fairly enforced a scheduling order

deadline. Furthermore, the district court was in the best position to assess

Plaintiffs’ arguments regarding their good faith, the significance of the evidence

to their case, and the potential prejudice to Defendants, and the district court

rejected these arguments. We therefore conclude that the district court did not

abuse its discretion in striking Dr. Prather’s affidavit. 

Dr. Prather’s excluded affidavit was Plaintiffs’ sole evidence on causation,

and therefore Plaintiffs provided no summary judgment evidence on this issue. 

Because Plaintiffs failed to create a genuine issue of material fact as to

causation, which is an element of their Louisiana state-law negligence claim,

Plaintiffs’ negligence claims fail. See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23 (1986) (stating that summary judgment is proper “against a party who

fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of

proof at trial”). We conclude that the district court did not err in granting

summary judgment to Defendants on Plaintiffs’ negligence claims.8

Plaintiffs argue on appeal that the district court erred in denying their motion to 8

strike the testimony of Dr. Grosbach, Defendants’ expert on causation. Dr. Grosbach opined

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D. Denial of Visitation and Denial of Familial Association Claims

1. Qualified Immunity

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). “Qualified immunity balances two

important interests—the need to hold public officials accountable when they

exercise power irresponsibly and the need to shield officials from harassment,

distraction, and liability when they perform their duties reasonably.” Id. A

public official is entitled to qualified immunity unless the plaintiff demonstrates

“(1) that the official violated a statutory or constitutional right, and (2) that the

right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft

v. al–Kidd, 131 S. Ct. 2074, 2080 (2011). The Supreme Court has stated that the

courts may “exercise their sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the

circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. 

“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would have understood that what he is doing

violates that right.’” Ashcroft, 131 S. Ct. at 2083 (alterations in original)

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). “[T]he term clearly

established does not necessarily refer to commanding precedent that is factually

on all-fours with the case at bar, or that holds the very action in question

that, based on the “doubling times” of colon cancer, Trey’s cancer was already terminal in

March 2008. Plaintiffs assert that Dr. Grosbach failed to demonstrate the reliability of his

methodology, particularly with respect to the “doubling times.” We need not decide this issue.

As explained above, because Plaintiffs failed to create a genuine issue of material fact as to

causation, Plaintiffs’ negligence claims fail.

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unlawful.” Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 256-57 (5th Cir. 2005)

(citations and internal quotation marks omitted). A right is clearly established

“if in light of pre-existing law the unlawfulness [is] apparent.” Id. at 257

(alteration in original, citations and internal quotation marks omitted); see id.

(“[T]he unlawfulness of their alleged conduct is readily apparent from relevant

precedent in sufficiently similar situations.”) (citations omitted). The Supreme

Court has recently stated that, for a right to be “clearly established,” “[w]e do not

require a case directly on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.” Ashcroft, 131 S. Ct. at 2083

(citations omitted). 

2. Analysis

Trey was diagnosed with terminal colon cancer at LSU Hospital on May

27, 2008. Plaintiffs assert that Defendants, particularly Warden Toloso,

unlawfully precluded Trey’s family from visiting Trey in LSU Hospital for

approximately five days after Trey’s diagnosis. Plaintiffs contend that they had

to seek the assistance of a retired judge, who obtained an order permitting

visitation on June 1, 2008. Plaintiffs assert that they began visiting Trey daily

at LSU Hospital on June 2. Based on these allegations, Plaintiffs assert two

separate constitutional claims. First, in Trey’s survival action, Trey’s daughter

asserts a claim under § 1983 for the denial of visitation in violation of Trey’s

First Amendment rights. Second, Trey’s parents assert a claim under § 1983 for

the violation of their rights to familial association and parenthood in violation

of their First and Fourteenth Amendment rights. The district court granted

summary judgment in favor of the Defendants on these constitutional claims. 

We will address each claim in turn.

With respect to the denial of visitation claim, Plaintiffs argue that the

district court erred in failing to recognize Trey’s First Amendment right to

visitation with family and friends. In support of their First Amendment

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argument, Plaintiffs only cite to one case, Washington v. Reno, 35 F.3d 1093 (6th

Cir. 1994), which stands for the general proposition that prisoners “retain their

First Amendment rights to communicate with family and friends.” Id. at 1100

(citation omitted). However, the Reno court’s broad proposition of law does not

support Plaintiffs’ argument that an inmate has a clearly established right to

visitation. In order to show that a right is “clearly established,” Plaintiffs must

show that “existing precedent [has] placed the statutory or constitutional

question beyond debate.” Ashcroft, 131 S. Ct. at 2083 (citations omitted). 

Because Plaintiffs have failed to point to any caselaw that indicates that a

prisoner has a right to visitation, Plaintiffs have not demonstrated that

Defendants violated Trey’s clearly established rights. Therefore, we determine

that Defendants are entitled to qualified immunity on this claim. See id. at 2080

(noting that an official is entitled qualified immunity unless plaintiff

demonstrates “that the right was ‘clearly established’ at the time of the

challenged conduct”) (citation omitted). We conclude that the district court

properly granted summary judgment in favor of Defendants on the denial of

visitation claim. 

9

With respect to the denial of familial association claim, Trey’s parents

argue that Defendants deprived them of “their constitutional right to familial

association with their son . . . by depriving them of their right to be with him

during that time of great need.” On appeal, Plaintiffs argue that the district

court erred in failing to recognize this viable constitutional claim under the First

and Fourteenth Amendments. However, Plaintiffs have failed to point to any

In this case, we do not reach the issue of whether a prisoner has a constitutional right 9

to visitation. However, we note that, in a case where a prisoner was denied visitation with his

mother, we stated that a prisoner has “no constitutional right to visitation privileges.” Berry

v. Brady, 192 F.3d 504, 508 (5th Cir. 1999) (citation omitted); see also McCray v. Sullivan, 509

F.2d 1332, 1334 (5th Cir. 1975) (stating that, in the context of the denial of conjugal visits, a

prisoner does not have a constitutional right to visitation). 

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caselaw that indicates that a parent of an adult child has a right to visitation

with that child. Therefore, Plaintiffs have not demonstrated that Defendants 10

violated a clearly established right to familial association. Ashcroft, 131 S. Ct.

at 2083. Thus, we conclude that Defendants are entitled to qualified immunity

and that the district court properly granted summary judgment to Defendants

on this familial association claim.

E. Subrogation and Bystander Claims

We conclude that Plaintiffs have not adequately briefed their arguments

relating to their subrogation and bystander claims. With respect to the district

court’s dismissal of their subrogation claims, Plaintiffs merely mentioned this

issue in the “Statement of Issues” section of their appellate brief. Because

Plaintiffs failed to present any argument relating to this issue in the argument

section of their appellate brief, this issue is waived. See Gen. Universal Sys. v.

HAL, Inc., 500 F.3d 444, 454 (5th Cir. 2007); Justiss Oil Co. v. Kerr-McGee Ref.

Corp., 75 F.3d 1057, 1067 (5th Cir. 1996). Next, with regard to the district

court’s dismissal of their bystander claims, Plaintiffs raised this issue for the

first time in their reply brief. We do not consider arguments first raised in a

reply brief. See United States v. Jackson, 50 F.3d 1335, 1340 n.7 (5th Cir. 1995).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

For instance, Plaintiffs cite Kipps v. Caillier, 205 F.3d 203, 206 (5th Cir. 2000) (on 10

denial of rehearing en banc), where we recognized “[a father’s] constitutional right to familial

association with his son (i.e, his right to preserve the integrity of that family relationship).”

However, Kipps does not relate to the facts of the instant case. In Kipps, a father was fired

from his job because of his son’s decision to play football for LSU. Id.

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