IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41228 _____________________
PHILLIP GLEN EARWOOD,
Plaintiff-Appellee,
versus
LEROY MOODY, Etc.; ET AL.,
Defendants
SUSAN GIBBANY,
Defendant-Appellant. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas, Corpus Christi USDC No. C-97-CV-448 _________________________________________________________________
November 2, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
This appeal arises from the 42 U.S.C. § 1983 suit of former
prisoner Phillip Earwood. Earwood alleged, and a jury found, that
San Patricio County nurse Susan Gibbany failed to provide adequate
medical care in violation of Earwood’s Eighth Amendment rights.
Because we find that the district court did not err in denying
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. defendant Gibbany’s motion for a new trial on the issue of
deliberate indifference, we affirm the judgment of the district
court.
I
A
Phillip Earwood was incarcerated in 1997 for failure to comply
with probation. At the time of his incarceration, Earwood’s right
leg had been amputated below the knee and his right arm was
damaged. Three days after he began his prison term, Earwood
slipped and fell while exiting the shower, reinjuring his arm.
Susan Gibbany, the San Patricio County prison nurse, was on call
the night of his fall, and referred Earwood to a local hospital
where they splinted his arm.
During the days following his fall, Earwood told Gibbany that
he believed his arm was seriously broken and requested to see
another doctor. Gibbany called for an appointment with another
doctor six days after Earwood’s initial request. Six days after
her call, Earwood was taken to see the doctor. The doctor put
Earwood’s arm into a cast. Earwood testified that, despite his
request, Gibbany refused to authorize the doctor to examine
Earwood’s amputated leg during this visit.
After this doctor visit, from May 28, 1997 to June 11, 1997,
Earwood did not shower. Earwood testified that when he asked for
2 a shower, he was told that Gibbany did not want him to get the cast
on his arm wet. He also says that he asked for a bag to cover his
cast and was refused. On the other hand, Gibbany says that Earwood
refused to shower because he was concerned that the cast would get
wet. Shortly afterwards, Earwood’s stump became infected. He says
that his requests for showers and to see a doctor were again
denied.
On July 9, 1997, Earwood’s doctor prescribed an antibiotic for
his infection, and Betadyne soaks for his stump. Earwood says that
the doctor ordered Gibbany to administer the soaks, and that she
refused. Gibbany says that Earwood was able to clean and change
the bandage on his stump himself, and that he refused medication on
several occasions. Earwood says that Gibbany did not instruct the
jailers to bring Earwood to the infirmary, never observed him
cleaning the stump and never confirmed that the wound was being
cleaned correctly. Although Earwood was given a bucket, he was
neither given a disinfectant nor clean rags, and Gibbany did not
instruct the jailers to sanitize the bucket. Earwood’s arm was in
a cast, and he had difficulty filling a bucket of water and
transporting it in order to properly clean his stump. When Earwood
complained to Gibbany that he was not receiving enough peroxide to
clean his stump, she told him to “just go to hell.” Gibbany also
did not instruct that he be sent to the newer shower facilities,
3 which he could have entered without the help of other inmates or
jailers.
Earwood was subsequently hospitalized twice for infection to
his stump and his forearm. The infection in his stump required
surgery to drain the infection. After the infections cleared up,
Earwood was discharged back to the jail. His second hospital stay
was extended to keep the wound from being reinfected in the jail’s
“unstable environment.” Earwood contends that Gibbany again
refused to help him after his return. Two weeks after he returned
to jail the second time, he was again hospitalized for infection.
He again underwent surgery, this time in his arm, to drain the
infection. Earwood was released from jail on November 7, 1997, and
his infection started clearing up.
B
In August of 1997, Earwood brought a 42 U.S.C. § 1983 suit
against San Patricio County Nurse Susan Gibbany, as well as San
Patricio County and San Patricio County Sheriff Leroy Moody.
Earwood claimed that the defendants failed to provide adequate
medical treatment in violation of his Eighth Amendment rights while
he was incarcerated. He also made several negligence and Americans
with Disabilities Act claims.
The case was tried by jury in May 1999. The district court
dismissed all claims against defendant Moody and the section 1983
4 claims against San Patricio county. The court submitted the case
to the jury on the ADA claim, the negligence claims, and the claim
that Gibbany was deliberately indifferent to Earwood’s serious
medical needs in violation of the Eighth Amendment. The jury found
that Gibbany was both consciously indifferent to the serious
medical needs of Earwood and that her conduct constituted
intentional callous indifference and willful and wanton disregard
of Earwood’s rights. The jury also found that San Patricio
County’s conduct constituted negligence under state law, but did
not find an ADA violation. The jury awarded Earwood $108,500 for
actual damages for past physical pain and mental anguish, future
physical impairment and past medical care.1 The jury also assessed
punitive damages against Gibbany for $20,000. The district court
judge found Gibbany liable for the entire judgment award, including
the $20,000 in punitive damages, and San Patricio County liable for
seventy percent of Earwood’s damages. The district court also found
both parties jointly and severally liable for attorney’s fees and
costs.
The defendants filed a post-judgment motion for a new trial
under Federal Rule of Civil Procedure 59. The district court
1 The district court reduced this actual damage total by $28,798.40, which represented the medical expenses paid by San Patricio County.
5 denied this motion in September 1999. Gibbany now appeals the
district court’s denial of her motion for a new trial.
II
Gibbany did not file a pre-verdict motion for judgment under
Federal Rule of Civil Procedure 50, and thus is only appealing the
district court’s denial of her motion for a new trial. Appellate
review of a district court’s denial of a motion for new trial is
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-41228 _____________________
PHILLIP GLEN EARWOOD,
Plaintiff-Appellee,
versus
LEROY MOODY, Etc.; ET AL.,
Defendants
SUSAN GIBBANY,
Defendant-Appellant. _________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas, Corpus Christi USDC No. C-97-CV-448 _________________________________________________________________
November 2, 2000
Before JOLLY, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
This appeal arises from the 42 U.S.C. § 1983 suit of former
prisoner Phillip Earwood. Earwood alleged, and a jury found, that
San Patricio County nurse Susan Gibbany failed to provide adequate
medical care in violation of Earwood’s Eighth Amendment rights.
Because we find that the district court did not err in denying
* 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. defendant Gibbany’s motion for a new trial on the issue of
deliberate indifference, we affirm the judgment of the district
court.
I
A
Phillip Earwood was incarcerated in 1997 for failure to comply
with probation. At the time of his incarceration, Earwood’s right
leg had been amputated below the knee and his right arm was
damaged. Three days after he began his prison term, Earwood
slipped and fell while exiting the shower, reinjuring his arm.
Susan Gibbany, the San Patricio County prison nurse, was on call
the night of his fall, and referred Earwood to a local hospital
where they splinted his arm.
During the days following his fall, Earwood told Gibbany that
he believed his arm was seriously broken and requested to see
another doctor. Gibbany called for an appointment with another
doctor six days after Earwood’s initial request. Six days after
her call, Earwood was taken to see the doctor. The doctor put
Earwood’s arm into a cast. Earwood testified that, despite his
request, Gibbany refused to authorize the doctor to examine
Earwood’s amputated leg during this visit.
After this doctor visit, from May 28, 1997 to June 11, 1997,
Earwood did not shower. Earwood testified that when he asked for
2 a shower, he was told that Gibbany did not want him to get the cast
on his arm wet. He also says that he asked for a bag to cover his
cast and was refused. On the other hand, Gibbany says that Earwood
refused to shower because he was concerned that the cast would get
wet. Shortly afterwards, Earwood’s stump became infected. He says
that his requests for showers and to see a doctor were again
denied.
On July 9, 1997, Earwood’s doctor prescribed an antibiotic for
his infection, and Betadyne soaks for his stump. Earwood says that
the doctor ordered Gibbany to administer the soaks, and that she
refused. Gibbany says that Earwood was able to clean and change
the bandage on his stump himself, and that he refused medication on
several occasions. Earwood says that Gibbany did not instruct the
jailers to bring Earwood to the infirmary, never observed him
cleaning the stump and never confirmed that the wound was being
cleaned correctly. Although Earwood was given a bucket, he was
neither given a disinfectant nor clean rags, and Gibbany did not
instruct the jailers to sanitize the bucket. Earwood’s arm was in
a cast, and he had difficulty filling a bucket of water and
transporting it in order to properly clean his stump. When Earwood
complained to Gibbany that he was not receiving enough peroxide to
clean his stump, she told him to “just go to hell.” Gibbany also
did not instruct that he be sent to the newer shower facilities,
3 which he could have entered without the help of other inmates or
jailers.
Earwood was subsequently hospitalized twice for infection to
his stump and his forearm. The infection in his stump required
surgery to drain the infection. After the infections cleared up,
Earwood was discharged back to the jail. His second hospital stay
was extended to keep the wound from being reinfected in the jail’s
“unstable environment.” Earwood contends that Gibbany again
refused to help him after his return. Two weeks after he returned
to jail the second time, he was again hospitalized for infection.
He again underwent surgery, this time in his arm, to drain the
infection. Earwood was released from jail on November 7, 1997, and
his infection started clearing up.
B
In August of 1997, Earwood brought a 42 U.S.C. § 1983 suit
against San Patricio County Nurse Susan Gibbany, as well as San
Patricio County and San Patricio County Sheriff Leroy Moody.
Earwood claimed that the defendants failed to provide adequate
medical treatment in violation of his Eighth Amendment rights while
he was incarcerated. He also made several negligence and Americans
with Disabilities Act claims.
The case was tried by jury in May 1999. The district court
dismissed all claims against defendant Moody and the section 1983
4 claims against San Patricio county. The court submitted the case
to the jury on the ADA claim, the negligence claims, and the claim
that Gibbany was deliberately indifferent to Earwood’s serious
medical needs in violation of the Eighth Amendment. The jury found
that Gibbany was both consciously indifferent to the serious
medical needs of Earwood and that her conduct constituted
intentional callous indifference and willful and wanton disregard
of Earwood’s rights. The jury also found that San Patricio
County’s conduct constituted negligence under state law, but did
not find an ADA violation. The jury awarded Earwood $108,500 for
actual damages for past physical pain and mental anguish, future
physical impairment and past medical care.1 The jury also assessed
punitive damages against Gibbany for $20,000. The district court
judge found Gibbany liable for the entire judgment award, including
the $20,000 in punitive damages, and San Patricio County liable for
seventy percent of Earwood’s damages. The district court also found
both parties jointly and severally liable for attorney’s fees and
costs.
The defendants filed a post-judgment motion for a new trial
under Federal Rule of Civil Procedure 59. The district court
1 The district court reduced this actual damage total by $28,798.40, which represented the medical expenses paid by San Patricio County.
5 denied this motion in September 1999. Gibbany now appeals the
district court’s denial of her motion for a new trial.
II
Gibbany did not file a pre-verdict motion for judgment under
Federal Rule of Civil Procedure 50, and thus is only appealing the
district court’s denial of her motion for a new trial. Appellate
review of a district court’s denial of a motion for new trial is
highly deferential to the trial court. Dixon v. International
Harvester Co., 754 F.2d 573 (5th Cir. 1985). A district court’s
denial of a motion for new trial will be affirmed unless the
appellant “makes a ‘clear showing’ of ‘an absolute absence of
evidence to support the jury’s verdict,‘ thus indicating that the
trial court had abused its discretion in refusing to find the
jury’s verdict ‘contrary to the great weight of the evidence.’”
Whitebread v. Food Max of Miss., Inc., 163 F.3d 265, 269 (5th Cir.
1998) (citing Hidden Oaks, Ltd. v. City of Austin, 138 F.3d 1036,
1046 (5th Cir. 1986) (quoting Dawsey v. Olin Corp., 782 F.2d 573
(5th Cir. 1985)).
III
Inadequate medical care by prison medical personnel can rise
to the level of an Eighth Amendment violation, actionable under 42
U.S.C. § 1983, when the conduct “amounts to deliberate indifference
to [the prisoner’s] serious medical needs, constitut[ing] the
6 unnecessary and wanton infliction of pain proscribed by the Eighth
Amendment.” Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999)
(citations omitted). To prove deliberate indifference, a prisoner
must show that the official “knows of and disregards an excessive
risk to inmate health or safety; the official must be both aware of
facts from which the inference could be drawn that a substantial
risk of harm exists, and he must also draw the inference.” Farmer
v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994).
Malpractice and negligence do not rise to the level of an Eighth
Amendment violation. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th
Cir. 1993).
Allegations of delay of treatment and failure to provide
adequate medical facilities may, in certain circumstances, be
enough to state a claim of deliberate indifference. For instance,
we have found that a prisoner stated a claim for deliberate
indifference when officials were made aware of, and delayed
treatment of, a prisoner’s broken jaw. Harris v. Hegman, 198 F.3d
153 (5th Cir. 1999). A prisoner with a brace who alleged that he
acquired a fungal infection after prison officials did not allow
him to bathe for several months also stated a claim for deliberate
indifference. Bradley v. Puckett, 157 F.3d 1022 (5th Cir. 1998).
7 IV
Gibbany is only entitled to a new trial if she can demonstrate
that there is no evidence that supports the jury’s verdict.
Whitebread, 163 F.3d at 269. Although Gibbany disputes the
conclusions to be drawn from the evidence, she cannot demonstrate
an “absolute absence of evidence” of deliberate indifference. Id.
Earwood presented evidence that the infections in his arm and stump
were serious risks to his safety. Earwood’s infections developed
because he was unable to clean his arm and leg stump without help
and without proper cleaning supplies. Because of his infections,
Earwood was hospitalized on four separate occasions and had to have
surgery to remove the infection in both his arm and his stump.
After his hospitalizations and return to jail, the infections
recurred.
Earwood also presented evidence showing that Gibbany was aware
of the infections that developed in his arm and stump, and that she
refused to help him. There was evidence that Gibbany neither
provided adequate cleaning supplies for Earwood to clean his stump,
even after she knew of the infections, nor provided him with help
in showering or cleaning the stump. Although Gibbany contends that
she followed the doctor’s orders, gave Earwood the proper medical
supplies and did not know that the jailers failed to properly
assist Earwood, Earwood presented evidence that the jury could have
8 found more credible than the evidence presented by Gibbany. As
long as there is evidence on which a jury could conclude that
Gibbany was consciously indifferent to the serious medical needs of
Earwood, we cannot find that the district court erred in not
granting Gibbany’s motion for a new trial.
V
Because there is some evidence supporting the jury’s finding
of Gibbany’s deliberate indifference, we AFFIRM the district
court’s denial of Gibbany’s motion for a new trial.
A F F I R M E D.