### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 af

t e r his diagnosis. Plaintiffs–Appellants Elizabeth Macy U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Sep tem ber 6 , 20 12 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30814 Document: 00511976800 Page: 1 Date Filed: 09/06/2012No. 11-30814

Bedingfield, Trey’s minor daughter (through her mother April Bedingfield), and Mrs. Elizabeth Bedi n gf i e l d and Mr. Jimmy Elton Bedingfield, Trey’s parents, brought this civil action for monetary damages against Defendan t s

– Appellees Bossier Parish Sheriff Larry Deen, Warden Mark Toloso, Assis t a n t Warden L ieutenant 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. Pl a i n tiffs appeal the district court’s judgment and several of the court’s evid e n t i a ry a nd 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

s u spended and with credit for time served. On January 18, 2008, Trey w a s 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 2 3 , 2 0 0 8. While he was employed, Trey only missed five days of work due to illness. On March 2, 2008, T r ey 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 fro m L SU 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 pr o ducts including PeptoBismol, nonsteroidal anti-inflammatory medi c a t ions, 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”),

a n e m p loyee of the Bossier Parish Sheriff’s Office, made arrangements for j a i l personnel to take Trey to the endoscopy procedure on March 13. On March 9, Trey submit t e d 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” “schedu l e d o r 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 wil l w i t hout any coercion. I was informed of the consequences of r e f u sal, which may directly affect my medical condition. I accept those consequences and release Bossier Sheriff’s Department, Bossier Parish Police J u ry, 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 Go r m a n regarding chest pain. Nurse Gorman performed an EKG and drew b lood 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 Tre y a n d evaluated the May 6 blood work and EKG. Dr. Roberts scheduled a follow-up ap p ointment 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. Acco r di ng to Warden Mark Toloso (“Warden Toloso”), on Saturday, May 31, LSU Hospital told him of Trey’s terminal illness and requested permission f or Trey 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, 20 08. 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. P l aintiffs 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

LS U Ho sp italis no t a s ecur e f acil ity, so visi tat ion is not per mi tte d wh ile an i nma te 1 is rec eiving tre atm ent, unl es s the inm ate has a ter mi nal illne ss . 4 Case: 11-30814 Document: 00511976800 Page: 4 Date Filed: 09/06/2012No. 11-30814

telephone and through letters) that he did not report his medical pr o b l e m s because he did not w a n t t o b e 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 natur a l tutrix April Bedingfield), and Mrs. Elizabeth Bedingfield and Mr. Jimmy Elton Bedingfield,

2 Trey’s parents, brought this civil action for monetary d amages against 3 Defendants–Appellees Bossier Parish Sheriff Larry Deen (“Sheriff De en”), Warden Toloso, Assistant Ward e n S i m s , an d 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 m e di c a l c are to Trey. In Trey’s wrongful death and survival actions, Elizabeth Macy Bedingfiel d asserted claims under 42 U.S.C. § 1983 for (1) the denial of a dequate 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 n e gligence claims alleging a deni a l 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 f r om taking his deposition. The

Elizabet h Mac y Bedi ngfie ld, Trey’s surviving child , pos se ss es the so le right to pur sue 2 Trey’s wr ongful dea th and survival act ions

. April Bedi ngfie ld, Trey’s ex-w ife , is only act ing on behalf

of he r mi nor daught er in this la ws uit.
M r. Jim my Elton Bedi ngfie ld, Trey’s fat her, pas se d aw ay on Februa ry 8, 2011. O n 3 Apri l 27, 2011, the dis tri ct cour t ord ere d that Mr s. Elizabet h Bedi ngfie ld, the surviving sp ous e and nam ed execut rix of his es tat e, be sub st itut ed as plai ntif f forthe dec ede nt. 5 Case: 11-30814 Document: 00511976800 Page: 5 Date Filed: 09/06/2012No. 11-30814

m a gi s t r a te judge reasoned that “[t]here is no allegation in the Complaint that the Sheriff knew Tr e y or personally participated in any decisions regarding Trey’s incarceration or medical tr e a t m e n t.” The magistrate judge stated, however, that “[i]f Plaintiffs learn through other depositions or di s c o v e ry that t h e Sheriff has unique personal knowledge relevant to the issues in this c a s e , 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, argu i n g t h at “Sheriff Deen, because of his position and authority, possesses knowledge and information that is vital to their case.” The magistrate judge denied this motion,

r e a soning 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 Pl aintiffs’ claims. Defendants’ summary judgment evidence included the LSU Hospita l discharge summary report, the kite communication form, the refusal of medical treatment form, Trey’s m edical records, and the affidavits of Warden Toloso, Assistant Warden Sims, Dr. Roberts, and Nurse Gorman. Warden Toloso stated in his affidavit that he was

a w a r e t h a t Trey had elected to delay the endoscopy procedure, but “was no t

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

“ [w]orkers are not penalized by the Sheriff’s Office for requesting or receivi n g medical treatment.” Assistant Warden Sims s i mil arly s t at e d in his affidavit that he was not aware that Trey had an y s erious medical needs. Defendants also i ncluded the expert report of Dr. Alan B. Grosbach (“Dr. Grosbach”) regarding causation. Dr. Grosbach opined that, based on “th e w ell-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. P laintiffs 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 d e position 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. Pr a t h e r”). Dr. Prather, who was board certified in internal medicine, was Trey’s phy s ician prior to his incarceration in 2007. Based

on his review of Trey’s 200 8 medical records, Dr. Prather concluded that “the delay in diagnosis and appropriate t r e a tment of Trey Bedingfield’s cancer of approximately two months was, more probable than not, a substantial contributing factor in worsening [his] prognosis and subsequent fail u re to respond to treatment (chemotherapy) thereby significantly w o r sening 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 P r o c edure 26. On May 6, Defendants filed a Daubert motion to exclude Dr. Prather’s te s t i m o n y . On June 16, during a status conference, the district court orally granted Def e ndants’ motion to strike the affidavit of Dr. Pr ather. 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

reco n s i deration 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 p r o tective order prohibiting Plaintiffs from issuing dis c overy 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 Plaintiff s ’ s ub p oena to City-Tel Coin, Inc. (“City-Tel”) that sought to o btain telephone records and recordings of Trey’s conversations with his f a m i l y 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 aro und the discovery deadline by issuing subpoenas to a third party” and tha t “Plaintiffs’ justifications for the untimely subpoena are unavailing.” On June 2, 2011, Plaintiffs filed a motion in limine to strike the affidavit

a n d testimony of Dr. Grosbach, arguing that Dr. Grosbach’s expert medic a l opinions had “no basis in fact or science.” The district court denie d P l aintiffs’ motion. The court reasoned that the motion in limine was, “in actuality, a veiled Daubert motion” and that Plaintiffs had filed the mot i o n a f t e r 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 mi s s i n g the deadline and concluded that it would “not entertain Plaintiffs’ untimely Daubert challenge.” On July 27, 2011, the district court is s u e d a comprehensive, thirty-five page Memorandum Rulin g gr anting Defendants’ motion for summary judgment. The c ourt first addressed the admissibility of Plaintiffs’ evidence regarding Warden Toloso’s alleged intimidation of Trey. Plaintiffs’ evidence c o n s isted of alleged statements ma de by Trey to his family and friends regarding this intimidation, as set forth in the affidavit an d d e position testimony of Mrs. Elizabeth Bedingfield and Brent Weir. The defendants objected to this evidence

as inadmissible hearsay. The district court noted th a t “ P laintiffs 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 t h o r o u gh analysis, the court determined that the challenged evidence was no t 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 h i m t o forgo medical treatment; and (2) that Warden Toloso and Assistant Warden Sims knew that Trey’s medical condition w a s s e r i o u s but allowed him to forgo the scheduled EGD procedure. The court rejected Plaintiffs’ first argument because the court had determin e d t h a t 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 o k” l a nguage 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 interpret e d as posing a medical ques t i o n , “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 o p i ni on.” The court concluded that the summary judgment e vidence 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 indifferen ce 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 c l a i ms 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 provide d 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 exp lained that Dr. Grosbach’s expert opinion that Trey’s cancer was terminal in March 20 0 8 w a s “not challenged by any competent summary judgment evidence” by Plaintiff s , b e cause 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 gr a n t ed

su m m a ry judgment to Defendants on Trey’s parents’ § 1983 claims that Defendants violated “their constitutionally protected rights of familial association.” The di s trict 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 cou r t n e xt granted summary judgment to Defendants on Plaintiffs’ Louisiana state-law loss of consortiu m cl ai m s, reasoning that this cause of action only applies “where death does not occur.” Furthermore, the court held that Plainti f f s ’ bystander claims “fail[] as a matter of law because Mr. and Mrs.

Becaus e the cour t held that ther e wa s no del iber ate indi ff ere nce, the cour t conc lude d 4 that“it needno t reac h t he Mo nel l c laim ” agains t Sher iff D een. 10 Case: 11-30814 Document: 00511976800 Page: 10 Date Filed: 09/06/2012No. 11-30814

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

o f a ction applies only to persons “who view an event causing injury to anot h e r person, or who come upon the scene of the event soon thereafter.” Finally, the court granted summary judgment to Defenda n ts on Plaintiffs’ subrogation claims because Plaintiffs premised their cl a i m “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 judgme n t di s m i s sing all of Plaintiffs’ claims. Plaintiffs timely a p p e a led 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.” F E D

. R. C IV

. P. 56(a). A “genuine” dispute exists if, based on the evidence, a reasonable jury could return

a verdict for the nonmoving party. Ham i l t o n 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 refra i n f r o m making credibility d e t e r m inations or weighing the evidence.” Turner , 476 F.3d at 343 (citatio n 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, unsubsta n tiated assertions, or only a scintilla of evidence.” Id. (citation and internal quotation marks omitted). We may affirm a gr ant of summary judgment “on any basis

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supported by the r e c o r d

. ” 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. G o m ez v . S t. 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., In c . , 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 rulin g a f f ected substantial rights of the complaining party.” Id. (citation omitted). B. Deliberate Indifference Claims 1. Applicable Law The Eighth Amendment to the United States C onstitution 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

. 9 7 , 1 0 3 (1976). In Estelle v. Gamble , the Supreme Court held that “deliberate indifference to serious medical nee d s o f p risoners constitutes the ‘unnec e s s a ry 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 elabo r a t e d on the standard of “deliberate indifference,” explaining that “a prison official cannot be found liable under the Eighth Amendment for denying an inmate h u m a n e 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 negl i g e n c e or medical malpractice does not constitute a constitutional violation. See S t ewart , 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 inmat e ] , i gn ored his complaints, intentionally treated him incorre c t l y , 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 C i r. 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 err e d i n 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 h o w 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 ex c e p t ions. 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 belie v ed that would have induced the state of mind.” United States v. Cohen , 631 F.2d 1223, 1225 (5th Cir. 1980) (emp h a s i s added). In Cohen , this court explained that Rule 803(3) “limit[s] those admissible statements to declarations

of c o n ditio n

—‘ I ’ m s c ar e d’

—an d not belief—‘I’m scar e d b e c au s e G alkin thr e at e n e d me.’” Id. Here, Plain tiffs 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 exceptio n s e t f

o r t h 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 j udgment evidence indicating that Trey made these statements “in the shadow of impending death.” Third, Plaintiffs failed to show that Trey’s statements are ad m i s s ible 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 d e c l a r a nt of the

. . . statement ‘was particularly li k e l y to be telling the truth when the statement was made.’” Id. (alteratio n i n original) (citations and internal quotation marks omitted). Plaintiffs argued to the district court and on appeal that Trey had no mo t iv e to fabricate the statements and that the “contemporaneous natur e a nd consistency” of Trey’s statements demonstrate t h eir trustworthiness. However, Plaintiffs’ unsubstantiated assertions a r e insufficient to provide the court with the indicia of reliability and trustwort h i n e s s necessary to invoke Rule 807. We conclude that the district court did not abuse its discretion in excluding Plaintiffs’ hearsay evidence. 5

On app e a l , Plaint iffs argue that the magis tra te judge rever sib ly err ed in grant ing 5 De fen dant s’ mo tio n for a pr ote ctive ord er that quas hed Plaint iff s’ sub poe na to City- Tel for the tel epho ne rec ord s and rec ord ings of Trey’s tel epho ne conver sat ions dur ing his incar cer atio n. 14 Case: 11-30814 Document: 00511976800 Page: 14 Date Filed: 09/06/2012No. 11-30814

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 indiffe r e n t t o Trey’s medical needs in violation of the Eighth Amen d ment. First, Plaintiffs argue that Warden Toloso intimidated Trey, preventing him from report ing his medical problems and receiving medical treatment. Second, Plaintiffs a r gu e that Ward e n T o l o s o and Assistant Warden Sims “knew that Trey had a serious medical problem that was sched u l e d t o be addressed [by the endoscopy procedure], yet they w er e kno win gly , willin gly , an d deliberately indifferent to it.” First, we conclude that Plaintiffs’ argument regarding Ward e n T o loso’s intimidation of Trey fails because Plaintiffs’ sole evidence supportin g this contention was properly excluded by the district court as inadmissible hearsay. Second, we conclude that Plaintiffs’ argument rel a t i n g t o 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 ch o se 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 wa n t to submit to the procedure. However, Plaintiffs fail to cite any authority for the proposition that Warden Toloso and Assistant Warden S i m s w ere deliberately indifferent to Trey’s health by not forcing T r e y to undergo a medical procedure against his will. The district cou r t correctly concluded that the summary judgment evi d ence indicates that Trey saw a medical provider each time he reported a

Plaint iffs cont end that this evide nce wa s “ cru cial to es tabl ish [t heir] clai ms ,” yet Plaint iffs’ ow n cor res pond ence wi th City- Tel indi cat es that rec ord s of thes e call s we re no longer act ive. We conc lude that any err or in the magis tra te judge’ s ord er wa s harm les s. See Boca negra , 320 F.3d at 584 (s tat ing that evide ntiar y rulin gs are revie we d unde r the harm les s err or st andar d)

. 15 Case: 11-30814 Document: 00511976800 Page: 15 Date Filed: 09/06/2012No. 11-30814

medical problem. Plaintiffs have not put forward any summary judg m e n t 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 ” w a s the moving force behind the harm to T r e y . Se e 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 vi o l a t i on 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 o m i t t e d). The district court

c o r rectly 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 § 1 9 8 3 [municipal] liability unless [the plaintiff] suffered a constitutional violation.” Id. at 867. 6 C. Louisiana State-Law Negligence Claims 1. Applicable Law

Pla inti ff

s argue on app eal thatt he dis tri ct cour t err ed in pr ohibit ing t he dep os itio n 6 of Sher iff De en. Plaint iffs ass ert that Sher iff De en, as “ch ief pol icy mak er, ” had kn o w l e d ge rele vant to Plaint iffs’case . We c oncl ude thatPlainti ff s cann ot s howthat thedis tri ct co urt ’s evide ntiary rulin g aff

ect ed thei r sub st antia l right s. See Boca negra , 320 F.3d at 584. In thei r app ellat e brie f, Plaint iffs st ate that the “evid ence [t hey] so ught to obta in fr om the Sher iff wa s nece ss ary to dem ons tra te [Mo nel l] liabil ity. ” Ho we ver, as expla ined above, Plaint iffs’ Mo nel l clai m agains t Sher iff

Dee n already fails becaus e Plaint iffs failed to create a genuine iss ue of mat eria l f

actr egard ing w heth er Trey suf fer ed a c ons tit utio nal violat ion. 16 Case: 11-30814 Document: 00511976800 Page: 16 Date Filed: 09/06/2012No. 11-30814

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 ci t a t i o n s o mitted). In order to establish a negligence claim, Plai n t i f f s must show that Defendants failed to provide Trey with reasonable medical care and that Defendants’ substandard c o n duct 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 favo r o f Defendants on Plaintiffs’

n egligence claims, the district court determined that (1) Plaintiffs did n o t 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 neglige n t because Trey was not see n b y 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 o f m a t e rial fact as to caus a t i o n . In order to do so, we must address whether the district court abused its di s cretion 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 disclo s u r e d e a dline in the court’s scheduling order. On appeal, 7 Plaintiffs concede that they erroneously desi gn a t e d Dr. Prather as a treating physician and that they should have disclosed Dr. Prather’s report by the

Rule26 requ ires d isc los ures f or a wi tnes s wh o is “re taine d or sp ecia lly e mp loyedt o 7 pr ovideexp ertt es tim ony i n t he cas e.” F E D

. R. C IV

. P. 26(a)( 2)( B). 17 Case: 11-30814 Document: 00511976800 Page: 17 Date Filed: 09/06/2012No. 11-30814

deadline in the scheduling order. H o w e v er, Plaintiffs assert that we should

reverse the district court’s order because: (1) Plaintiff s b elieved in good faith that Dr. Prather was a treating physician and thus exempt from t h e di s c losure 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 e nforce 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 ab s e n t a clear

ab u s e of discretion”) (citation and internal quotation marks omitted). In strikin g Dr. Prather’s affidavit, the district court fairly enforced a sc h e d u l i n g order deadline. Furthermore, the district court was in the best position t o assess Plaintiffs’ arguments regarding their good faith, the significance of the evidence to t h e i r c ase, 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. B ecause Plaintiffs failed to create a genuine issue of material fact as to

c ausation, 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 p a r t y who fails to make a showing sufficient t o e s t ablish 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 distr i c t court did not err in granting summary judgment to Defendants on Plaintiffs’ negligence claims. 8

Plaint iffs argue on app eal that the dis tr i c t cour t err ed in denyi ng thei r mo tio n to 8 st rik e the tes tim ony of Dr. Gr os bach, De fen dant s’ expe rt on caus atio n. Dr

. Gr os bach opi ned 18 Case: 11-30814 Document: 00511976800 Page: 18 Date Filed: 09/06/2012No. 11-30814

D. Denial of Visitation and Denial of Familial Association Claims 1. Qualified Immunity “The doctrin e of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not vi o l a t e clearly

e s t ab li s h e d s t atutory or constitutional rights of which a reasonable person wo ul d have known.’” Pearson v. Callahan , 555 U.S. 223, 231 (2009) (quoting Harlow

v. Fitzgerald , 45 7 U.S. 800, 818 (1982)). “Qualified immunity balances two important interests—the need to hold public officials account ab l e when they exercise power irresponsibly and the need to shield officials from haras s ment, distraction, and liability when t h e y p e rf orm 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 firs t i n l i ght 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 (alterat i o n s i n original) (quotingAnderson 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 wi th the case at bar, or that holds the very action in question

that , bas ed on the “d oublin g tim es ” of colo n canc e r , T r e y’ s c a ncer wa s alre ady ter mi nal in Mar ch 2008. Plaint iffs ass ert that Dr

. Gr os bach f a i l e d t o dem ons tra te the reli abilit y of his me thod ology, par tic ularly wi th res pec t to the “d oublin g tim es .” We need not dec ide this iss ue. As expla ined abov e , b e c a u s e Plaint iffs fai led to cre ate a genuine iss ue of mat eria l fac t as to caus atio n, Plaint iffs’ne gligencec laim s fai l. 19 Case: 11-30814 Document: 00511976800 Page: 19 Date Filed: 09/06/2012No. 11-30814

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-e xi s t i n g 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 p l a ced 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, 2 0 08. Plaintiffs assert that Defendants, particularly Warden Toloso, unlawfully precluded Trey’s family from visiting Trey i n L SU Hospital for approximately five days after Trey’s diagnosis. Plaintiffs contend that they had to seek the assistance of a retired j u d g e , who obtained an order permitting visitation on June 1, 2008. Plaintiffs assert that they began visiting Trey daily at L S U H ospital 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 vis i tation 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 associati on and parenthood in violation of their First and Fourteenth Amendment r i gh t s . The district court granted
summary j u d g m e n t in favor of the Defendants on these constitutional claims. We will address each claim in turn. With respect to the denial of visitatio n c l a i m , Plaintiffs argue that the district court erred in failing to recognize Trey’s Firs t A m endment right to visita t i o n w i t h family and friends. In support of their First Amendment

20 Case: 11-30814 Document: 00511976800 Page: 20 Date Filed: 09/06/2012No. 11-30814

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

s u p p o rt Plaintiffs’ argument that an inmate has a clearly established right t o 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 (citat i o ns omitted). Because Plaintiffs have failed to point to any caselaw that indicate s that a prisone r h a s 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 u n l e ss plaintiff demonstrates “that the right was ‘clearly established ’ a t t he time of the challenged conduct”) (citation omitted)

. We conclude that the district court pr o p e r l y granted summary judgment in favor of Defendants on the denial of visitation claim. 9 With respect to t h e d e nial of familial association claim, Trey’s parents argue that Defendants deprived them of “their constitution a l r i gh t to familial association with their son . . . by depriving them o f th e ir right to be with him during that time of great need.” On appeal, Plaintiffs argue that t h e di s t rict court erred in failing to recognize this viable constitutional claim under the First and Fourteenth Amendments. However, Pla i n tiffs have failed to point to any

In this cas e, we do not reac h the iss ue of wh ethe r a priso ner has a cons tit utio nal right 9 to visitat ion. Ho we ver, we note that , in a cas e wh ere a priso ner wa s deni ed visitat ion wi th his mo ther , we st ated that a pr iso ner has “no cons tit utio nal right to visi tat ion pr ivileges .” Berr y v. Brad y , 192 F.3d 504, 508 (5t h Cir. 1999) (c itat ion om itt ed) ; see also Mc Cray v. Sull iv an , 509 F.2d1332, 1334 (5 th Cir. 1975) (s tat ing that, in the context of the deni al of conjugal visit s, a pr iso ner doe s not have a c ons tit utio nal rightt o vi sit atio n). 21 Case: 11-30814 Document: 00511976800 Page: 21 Date Filed: 09/06/2012No. 11-30814

caselaw that indicates that a parent of an adu l t c h i l d has a right to visitation with that child. Therefore, Plaintiffs have not demonstrated that Defendants 1 0 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 men t i o n e d this issue in the “Statement of Iss u e s ” 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. 19 9 6)

. N e xt, with regard to the district court’s dismissal of their bystander claims, Plaintiffs raised this issue for the first time in their reply bri e f

. 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 ins tanc e, Plaint iffs cit e Kip ps v. Cai ll ie r , 205 F.3d 203, 206 (5t h Cir. 2000) (on 1 0 deni al of rehe aring en banc) , wh ere we rec ognized “[ a fat her’ s] cons tit utio nal right to fam ilial ass ocia tio n wi th his s on (i. e, his right to pr es erve the inte grity of that fam ily rela tio nshi p) .” Ho we ver, Kip

ps doe s not rela te to the fac ts of the ins tant cas e. In Kip ps , a fat her wa s fir ed fr omhi s job beca useof hi s so n’s d ecis ion to play foo tbal l f or LSU. Id. 22 Case: 11-30814 Document: 00511976800 Page: 22 Date Filed: 09/06/2012