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Wagner v. County of Maricopa

United States Court of Appeals, Ninth Circuit

December 30, 2013

YVON WAGNER, as the personal representative of the Estate of Eric Vogel, Plaintiff-Appellant,
v.
COUNTY OF MARICOPA, a political subdivision of the State of Arizona; JOSEPH M. ARPAIO, husband; UNKNOWN ARPAIO, Named as Jane Doe Arpaio - wife, Defendants-Appellees

Decided: February 13, 2013;

Appeal from the United States District Court for the District of Arizona. D.C. No. 2:07-cv-00819-EHC. Earl H. Carroll, Senior District Judge, Presiding.

OPINION

Page 1049

ORDER

The amended opinion filed on February 13, 2013 is amended by eliminating the following part of the opinion:

At Slip opinion page 13 at " When a color " through to page 14 ending immediately before " Argument to the Jury ."

Insert in its place the following paragraph:

" On remand the plaintiff may prevail on the proposition that for the jail to apply the dress-out in pink procedure automatically to a man its own staff had identified as in need of psychiatric treatment was in deliberate indifference to his serious medical needs. Because of the evidentiary rulings of the trial court, the issue was not properly presented to the jury.

In addition, these rulings deprived the plaintiff of any foundation for medical testimony as to the probable cause of Vogel's death. We do not reach the admissibility of the medical testimony because as the case developed under the district court's

Page 1050

rulings, the testimony lacked all foundation."

The dissenting portion of the opinion filed on February 13, 2013 is amended by eliminating the following:

At Slip opinion page 15 delete < the third revision> and replace it with < the fourth revision> .

The dissenting portion of the opinion is further amended by eliminating the following part of the dissent:

At Slip opinion page 26 at < I fail to understand why> through to immediately before < IV. Closing Argument> .

In light of these amendments, Judges Noonan and Block vote to deny the petition for rehearing and recommend denying the petition for rehearing en banc. Judge N.R. Smith votes to grant the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it. Fed. R. App. P. 35. The petition for rehearing and the petition for rehearing en banc are denied. No further petitions for rehearing or for rehearing en banc shall be entertained.


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