Christmas v. Corizon Health Services et al
Filing
238
ORDER denying 231 Motion for Judgment as a Matter of Law and denying 233 Motion for New Trial. Signed by Judge Kathryn Kimball Mizelle on 9/3/2021. (NPC)
Case 8:17-cv-01183-KKM-SPF Document 238 Filed 09/03/21 Page 1 of 41 PageID 9017
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RICKEY LEE CHRISTMAS,
Plaintiff,
v.
Case No: 8:17-cv-1183-KKM-SPF
LUIS RODRIGUEZ-COLON and
MARGIE GOMEZ,
Defendants.
____________________________________
ORDER
Under current Supreme Court precedent, an inmate may bring an Eighth
Amendment claim if he has experienced inadequate medical treatment that rises to the
level of deliberate indifference. The plaintiff here, Rickey Christmas, brought such a claim
arising from his time at the Polk County Jail. Prior to his detention there, Christmas
sustained a close-range gunshot wound to his abdomen and underwent surgery resulting in
a colostomy, inclusion of mesh to hold his abdomen together, and, eventually, hernias.
Christmas claimed that—over the relevant span of roughly eighteen months at the Polk
County Jail—he informed medical providers of his excruciating pain due to the
deteriorating condition of the colostomy, the abdominal mesh, and the hernias, yet received
little to no treatment other than sporadic Tylenol prescriptions. Christmas survived
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summary judgment and presented his case to a jury, who found in his favor. The
Defendants, two of the physicians at Polk County Jail, now ask the Court to enter
judgment as a matter of law in their favor or, alternatively, to disturb the decision of the
jury and grant them a new trial. Because Christmas’s evidence was sufficient for a
reasonable jury to find in his favor, Defendants are not entitled to their first requested relief.
Similarly, the Court declines to displace the jury’s verdict and grant a new trial where there
is no manifest injustice to be cured.
I.
PROCEDURAL HISTORY
This case involves a protracted procedural history, albeit one that is not abnormal
in prisoner litigation. Christmas filed a complaint pro se on May 18, 2017. (Doc. 1.) The
complaint was dismissed for failure to state a claim, (Doc. 9), and Christmas filed the
Amended Complaint on August 31, 2017. (Doc. 10.) Christmas initially filed claims
against Drs. Rodriguez and Gomez, Mr. Gonzalez (a licensed mental health counselor),
and Corizon Health Inc., the contractor responsible for providing medical services at the
Polk County Jail. (Doc. 10.) On June 27, 2018, the Court granted Defendants’ motion to
dismiss as to Mr. Gonzalez but denied the motion as to the remaining defendants. (Doc.
45.)
The parties engaged in discovery until January 2019, when Defendants filed their
first motion for summary judgment. (Doc. 65.) The Court denied the motion without
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prejudice because Defendants failed to address the allegations in Christmas’s Amended
Complaint, namely the medical care Christmas received from December 2016 to August
2017—part of the crucial time period in this case. (Doc. 98.)
Defendants filed an Amended Motion for Summary Judgment on October 11,
2019. (Doc. 105.) The Court granted in part and denied in part the motion on June 17,
2020. (Doc. 116.) Specifically, the Court granted the motion with regards to the claims
against Corizon as to Christmas’s claims that Corizon had a policy of denying prisoners
surgery in other than “life-threatening” circumstances or for budgetary reasons because
Christmas presented evidence only of statements of individual employees and not an
official policy attributable to Corizon. (Doc. 116 at 11–14.) The Court also granted
summary judgment as to the claims against Drs. Rodriguez and Gomez after November 5,
2017, because the evidence showed that Christmas received an x-ray to assess his abdomen
on November 6, 2017, and a referral to an outside specialist, thereby precluding a deliberate
indifference claim based on inadequate treatment from that date going forward. (Id. at 14.)
The case continued as to the claims against Drs. Rodriguez and Gomez for their conduct
between December 1, 2016, and November 5, 2017. (Id.) 1
The Court appointed counsel for Christmas on June 19, 2020, and shortly
thereafter, the Court granted Christmas’s motion to reopen discovery, permitting
Notably, Defendants’ Amended Motion for Summary Judgment contained only two paragraphs of
argument on behalf of Drs. Rodriguez and Gomez regarding the claims against them. (Doc. 105 at 9–10.)
1
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Christmas’s newly appointed counsel to conduct additional discovery until December 18,
2020. (Docs. 117 & 129.) Neither party filed a motion for summary judgment (or any other
dispositive motion) following the close of this second discovery period. Instead, in February
2021, after the case was transferred to the undersigned, Christmas requested a status
conference because the case lacked a Case Management and Scheduling Order governing
pretrial and trial deadlines. (Doc. 135; id. at 4 (explaining that “Plaintiff is ready to set this
action for trial as soon as the Court’s schedule permits”).)
At a status conference on March 3, 2021, Christmas informed the Court that he
was ready to proceed to trial. Defendants indicated that they were planning on filing
another dispositive motion, even though the dispositive motion deadline passed on
October 11, 2019, and they had not sought leave to file a belated one. The Court issued a
scheduling order that same day setting the case for trial on April 20, 2021, and warned
Defendants that a motion for judgment on the pleadings (the dispositive motion counsel
indicated he wanted to pursue) would likely be denied as untimely. (Doc. 140.) A week
later, Defendants filed a motion to remove the case from the April 2021 trial calendar,
citing general concerns over the COVID-19 pandemic, which the Court denied without
prejudice. (Doc. 146.) Notably, at the status conference when the Court inquired about
potential trial dates, Defense counsel never voiced any hesitation about proceeding to trial
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due to COVID-19 and instead listed potential other trial conflicts in the upcoming
months.
On March 18, 2021, approximately one month before the trial, Defendants filed a
motion for judgment on the pleadings with voluminous evidence attached as support. (Doc.
159.) The Court denied the motion as untimely, given that it constituted a third motion
for summary judgment and would not ripen until after the beginning of trial. (Doc. 164);
see Fed. R. Civ. P. 12(c) (“After the pleadings are closed—but early enough not to delay
trial—a party may move for judgment on the pleadings.” (emphasis added)); Fed. R. Civ.
P. 12(d) (requiring conversion to a summary judgment motion when “matters outside the
pleadings are presented to and not excluded by the court”).
Per Local Rule 3.06, the parties conferred and filed a joint pretrial statement on
April 2, 2021. (Doc. 173.) Both parties attended a pretrial conference on April 13, 2021.
(Doc. 189.) At the pretrial conference, Christmas moved to amend the pleadings, with the
consent of the Defendants, to pursue the claims against Defendants in their individual
capacities instead of their official capacities, and the Court granted the motion. (Docs. 206
& 207.) As already evidenced by the pretrial statement, Christmas’s trial brief filed on April
6, 2021, (Doc. 178), and counsel’s representations at the pretrial conference, Christmas
intended to pursue supervisory liability against Dr. Gomez and would move to amend the
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pleadings to reflect that theory of liability if the Court concluded it was inadequately alleged
in the pro se–filed Amended Complaint.
Trial began on April 20, 2021. (Doc. 200.) Christmas testified, along with Drs.
Rodriguez and Gomez, and Dr. Janet Skarda, the surgeon who conducted Christmas’s
hernia surgery following the relevant time period at the Polk County Jail. (Doc. 200.) At
the close of evidence, Christmas moved to amend his complaint to demand punitive
damages under Rule 15(b)(1) and Rule 54(c). (Doc. 209.) The Court granted this motion
over Defendants’ objection. 2 (Doc. 210.) After the Court indicated that supervisory liability
was not clearly alleged, Christmas also moved to amend the complaint to conform to the
evidence of supervisory liability for Dr. Gomez pursuant to Rule 15(b)(1). (Doc. 214.) The
Court also granted this motion over Defendants’ objection. (Doc. 215.) Defendants then
Specifically, the Court concluded that, if a plaintiff presented sufficient evidence of a claim of deliberate
indifference, then the plaintiff inherently presented sufficient evidence to support punitive damages,
which requires a showing that the defendants were recklessly or callously indifferent as compared to the
greater burden of deliberately indifferent. See, e.g., Walsh v. Jeff Davis Cnty., 2012 WL 12952564, at *19
(S.D. Ga. 2012) (“Here, Plaintiff has presented evidence creating a genuine issue of fact regarding
whether Lewis and Conaway were deliberately indifferent to Plaintiff's serious medical need. Likewise,
Plaintiff has presented evidence that could support a finding of callous or reckless indifference to
Plaintiff's federal protected rights.”), aff’d, 489 F. App’x 389 (11th Cir. 2012). Further, the Court
concluded that Rule 54(c), which requires a court to grant all relief to which a party is entitled, required
an instruction on punitive damages even if not initially pleaded in the pro se Amended Complaint. See
Fed. R. Civ. P. 54(c) (“Every other final judgment should grant the relief to which each party is entitled,
even if the party has not demanded that relief in its pleadings.”); Scutieri v. Paige, 808 F.2d 785, 790–92
(11th Cir. 1987) (concluding district court abused its discretion by not instructing jury on punitive
damages where punitive damages were not specifically pleaded but the complaint adequately alleged a
factual basis supporting claim for punitive damages).
2
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moved for judgment as a matter of law under Rule 50(a), and the Court took it under
advisement. (Doc. 213.)
After deliberations, the jury returned a verdict in favor of Christmas. (Doc. 217.)
Specifically, the jury found that Dr. Rodriguez acted with deliberate indifference to
Christmas’s medical needs and awarded him $100,000 in compensatory damages and
$300,000 in punitive damages. (Doc. 217.) The jury also found that Dr. Gomez
intentionally committed acts that violated Christmas’s constitutional right under the
Fourteenth Amendment and awarded him an additional $50,000 in punitive damages. (Id.)
Following the jury trial, the Court denied Defendants’ 50(a) motion and entered judgment
in favor of Christmas in accordance with the jury’s verdict. (Doc. 221.) Defendants now
renew their motion for judgment as a matter of law under Rule 50(b) and move for a new
trial pursuant to Rule 59. (Docs. 231 & 233.)
II.
FACTUAL BACKGROUND 3
In January 2015, Rickey Christmas was shot at close range in the abdomen during
a home invasion. (Doc. 226 at 167.) He underwent surgeries for this injury, which involved
removal of parts of his intestines, insertion of a biological mesh, and a colostomy. (Id. at
The Court views the facts from the trial record in the light most favorable to Christmas as the Court
must when reviewing a motion for judgment as a matter of law. See McGinnis v. Am. Home Mort. Serv.,
Inc., 817 F.3d 1241, 1254 (11th Cir. 2016). A standard for granting a new trial does not impose the same
obligation on the Court; as such, the Court will note in its analysis if and when it weighs differently the
evidence offered at trial. See id. at 1254–55.
3
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168.) Some fragments of bullets remained even after his surgeries. (Id. at 173.) Following
Christmas’s release from the hospital, he received ongoing treatment for these injuries, and
his treating physician prescribed oxycodone and Klonopin for pain and Lyrica for nerve
damage in his legs. (Id. at 175.) During this time, Christmas sought reversal of his
colostomy. (Id. at 170.) At his follow-up visit with the surgeon on April 13, 2016, she
noted that a midline hernia had developed due to a defect in the biological mesh. (Id. at
177.) At trial, Christmas testified that, at this point, he understood the next step was a
colostomy reversal, which he planned to have as early as May 18, 2016. (Id. at 185, 209.)
A week later, on April 21, 2016, Christmas was arrested and booked at Polk County
Jail. (Doc. 218-1 at 1; Doc. 226 at 179–80.) Prison officials screened him for physical
injuries and medical issues. (Doc. 218-1 at 2–10; Doc. 226 at 178–80.) The screening
reported that Christmas had a colostomy due to a gunshot wound, bullets remaining in his
abdomen, and “2 apparent hernia in abdominal area.” (Doc. 218-1 at 9; Doc. 226 at 180.)
Polk County Jail initially housed Christmas in the medical dorm of the South County Jail
where the risk of further injury was lessened, although he eventually requested (and was
granted) a transfer to have more access to recreation. (Doc. 226 at 180–81.)
Dr. Luis Rodriguez-Colon was the staff physician at the Polk County Jail, South
County, employed by Corizon Health, Inc., a private company that provides medical and
mental health services to prisoners and detainees at the Polk County Jail. (Doc. 173 at 6.)
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Dr. Rodriguez was the only staff physician serving on a daily basis at the South County Jail
where Christmas resided. (Doc. 226 at 239.) He supervised the nurses and nurse
practitioners at that location and, even when Dr. Rodriguez was not treating patients
himself, the nurses often called him to get an order for treatment. (Id. at 239, 247.)
Dr. Margie Gomez was the site medical director of the Polk County Jail, also
employed by Corizon Health. (Doc. 227 at 52.) As site medical director, she did not attend
to patients daily at the jail, but she signed off on Corizon Health policies and procedures
that were implemented at the jail and had final responsibility for all treatment. (Id. at 52–
53.) Dr. Rodriguez reported to Dr. Gomez and testified that they were in constant
communication and would usually discuss non-emergent treatment with her. (Doc. 226 at
239–40.)
On May 11, 2016, less than a month after Christmas arrived at the Polk County
Jail, Dr. Rodriguez saw Christmas for a medical evaluation. (Doc. 218-1 at 24; Doc. 226
at 252–53.) When reviewing Christmas’s medical records, Dr. Rodriguez understood that
Christmas’s surgeon was considering a reversal of his colostomy at the time he was arrested.
(Doc. 226 at 185 (“Mr. Rodriguez knew [Christmas had his surgery scheduled for May 18,
2016] I was there talking to him about it.”); Doc. 227 at 45–46.) In the progress note, Dr.
Rodriguez recorded that Christmas had a colostomy and a ventral hernia. (Doc. 218-1 at
24; Doc. 226 at 252–53.) Dr. Rodriguez testified that a ventral hernia occurs when the
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abdominal wall and muscles weaken allowing abdominal content to come through it. (Doc.
226 at 253–54). Per his testimony, ventral hernias do not go away on their own. (Id.) And
the Polk County Jail does not do surgical repairs of hernias. (Id.)
It is undisputed that, from April 21, 2016, until October 28, 2017, Christmas placed
at least 29 health services requests reporting his significant physical ailments and desire for
additional medical treatment. See Table 1, infra. During this time, Christmas suffered
severe pain associated with his hernias, colostomy, and back injuries, and he informed Drs.
Rodriguez and Gomez of his problems in addition to filing these requests. (Doc. 226 at
185, 190, 197, 210, 212–13, 231, 246–47.) His complaints raised in the health service
requests are detailed in the Table below:
Table 1 4
Date
(Doc.
(Doc.
Complaint
226)
218-4)
4/25/16
182
423
“Both feet hurt pretty bad and my left lower back, my thighs,
and my legs, they’re numb.”
4/27/16
183
424
“I have bullets in my back and it’s causing my legs to retain
water. I need [sic] pain medication and my anxiety
medication.”
5/2/16
185
425
“I need my pain meds renewed. And also I need anxiety
medication, I can’t sleep. Having [sic] bad dreams.”
426
“I have hernias and also my stomach has a bad reaction to
spicey food and also creates gas. Can I be put on a spicey diet
regimen. I also would want to raise the times I get my pain
meds or be put back on something.”
5/6/16
4
187
Christmas’s written complaints are minimally altered for readability.
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6/20/16
188
427
“I need my pain medication renewed. I am also constipated, I
need to be back on my high fiber diet.”
9/24/16
189
428
Requested more Tylenol
9/30/16
191
429
“I need my meds renewed, please, Tylenol and all the rest.”
430
“Surgery to remove colostomy and restore intestinal tract to
original configuration. Surgical removal of bullets, metal
fragments near spine, gut, and repair of damaged hernia
repair.”
12/1/16
191–
92
12/21/16
194
1431
“I’m still in pain, my back, and when I eat beans, I’m bleeding.
The beans stop me up and hurt bad. Please help.”
1/11/17
195
432
“I have a lot of bullets in my back that needs to come out and
I’m in a lot of pain.”
1/15/17
196
433
“My back hurts and numb and my leg burns.”
1/21/17
196
434
“My back needs the bullets taken out. I need pain meds.”
2/14/17
201
435
“My body aches, my head is stopped up, and I got the flu bug.”
2/24/17
201
436
“I still got a cold and the back of my head hurts and my
[whole] body.”
3/11/17
202
437
“Bad headaches and sneezing and my back hurts.”
5/30/17
202
438
“I have a sharp pain right behind my colostomy bag. I can’t
breathe and I’m not pooping like I was.”
6/10/17
203
439
“Rolled out of bed on my back, I hurt all over.”
7/1/17
203
440
“My hernia hurts and the back of my neck.”
7/19/17
204
441
“My neck, my back, and my stomach hurts, constant pain.”
7/26/17
205
442
“My neck and my head hurts.”
8/2/17
205
443
“I’m in pain all the time. In fact, the whole time I’ve been here,
my back where the bullets are, the back of my legs, and my
stomach. I need pain meds the rest of the time I’m here until
you send me to an outside doctor to get fixed.”
8/15/17
207
444
“My back and my back of my leg is hurt all the way to my feet,
left side.”
445
“Bulging hernia, excruciating pain, remove colostomy bad and
restore intestinal tract, remove metal bullets from stomach and
spine, excruciating pain.”
8/23/17
207
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471
“I have a colostomy, but I’m pooping out my butt. I’ve never
done this before and I’ve had my colostomy two years. It was
supposed to be reversed a year ago.”
446
“My back is numb where the bullets are and my hernia hurts. I
need something for pain. I would also like to see an outside
doctor. Thank you.”
10/9/2017 211
474
“I have a bump in my mouth. Tell me what it is. And I’m still
in pain from the bullets in my back. Can I get another out,
please.”
10/14/17
475
“My hernia mesh tore and is hurting. It’s old and needs to be
removed.”
9/13/17
9/23/17
209
209
211
10/18/17
212
478
“I’m stopped up, I can’t poop right for four days. The two days
I passed out and went to medical. I am sour on my stomach
and it’s red and looks like bleeding or treating. I need to see an
outside doctor before the infection spreads. No blood was
drawn and my stomach is getting bigger. Send me to an
outside doctor, please before I get sick and die.”
10/28/17
214
479
“Stomach still hurting real bad burning on the outside is
swollen, red. Please help, something is not right with this
colostomy bag.”
At trial, Christmas testified that, in response to these requests for treatment, he
sometimes received a three-day Tylenol prescription or a diet change to address stomach
issues, but generally, he received no treatment at all. (Doc. 226 at 184, 194–95.) He also
received Remeron and Effexor, antidepressants with pain relieving side-effects, prescribed
by the jail psychiatrist and Dr. Rodriguez. (Doc. 226 at 248, 262–64.) If a medical provider
saw him in response to his complaint, it was usually one of the nurses working under Dr.
Rodriguez’s supervision. By Corizon policy, after being treated by a nurse three times, a
patient must be referred to a provider physician. (Doc. 226 at 241.)
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Christmas testified—and Dr. Rodriguez confirmed—that he saw Dr. Rodriguez
and informed him of his ongoing issues on many occasions. (Doc. 226 at 185, 190, 197,
210, 212–13, 246–47.) At trial, Christmas recalled Dr. Rodriguez telling him that the body
can take quite a bit of pain. (Doc. 226 at 190.) Christmas also recalled another visit when
Dr. Rodriguez told him that he was not being referred to an outside physician because
there was not enough money in the budget and his condition was not life threatening.
(Doc. 226 at 210.) He recalled times when, to get relief for his poorly functioning
colostomy, he had to “stand in the shower with a shampoo bottle and soap and water and
squeeze it in [his] bag . . . to get it broke up and moving again.” (Id. at 182.) On one
occasion in October 2017, Christmas had not had a bowel movement in two days and his
colostomy was blocked up. (Doc. 226 at 212.) Despite feeling faint, he arrived at the
infirmary where Dr. Rodriguez treated patients. (Id.) He passed out immediately upon
arrival, and his bowels released green-colored excrement. (Id. at 212–13) Dr. Rodriguez
revived him and sent him to go lie down. Christmas received no further treatment. (Id.)
After this incident, Christmas suspected he had an infection due to his abdomen feeling as
if it was burning and was swollen and red, so he placed yet another sick call but received
no treatment. (Id. at 214.)
While Dr. Gomez did not work day-to-day in the Polk County Jail, Christmas
testified that he saw her there on many occasions and complained of his pain to her directly.
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(Doc. 226 at 231–32.) Christmas also presented evidence of six practitioner treatment
orders made during the relevant time period that were ordered “per Gomez” although
signed by a nurse or nurse practitioner. (Doc. 218-3 at 34–40.) In addition, Christmas
presented eight prescriptions that listed Dr. Gomez as the prescriber. (Id. at 119, 121, 125,
131, 145, 147, 149, 151.) Finally, while Dr. Gomez maintained at trial that she never saw
or evaluated Christmas, Christmas presented an affidavit executed by Dr. Gomez in which
she stated: “At times Mr. Christmas has complained of pain, those complaints were
addressed by providing prescription strength and over-the-counter pain medications. The
latter is available to Mr. Christmas in his housing unit. . . . In my opinion, Mr. Christmas
has been provided appropriate care for these conditions. If at any time I thought Mr.
Christmas needed additional care or specialty consultation, I would have entered those
orders.” (Doc. 227 at 74–76.)
Throughout his time at the Polk County Jail, Christmas was informed that the
policy was not to treat chronic pain, that is, an ongoing issue of pain. (Doc. 226 at 186,
189.) Christmas testified that, in addition to something inmates knew from personal
experience, medical providers told him they did not treat chronic pain. Christmas lodged
three grievances to medical or Dr. Rodriguez in this span of time asking for more treatment
for the pain caused by his hernia and colostomy issues, all to no avail. (Doc. 218-12 at 2–
6.) In response to one of these grievances, Christmas received a notice that read, “Upon
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review of your medication file, you have been given medication on various occasions for
your pain. As I am sure that my medical staff has told you before, we do not treat chronic
pain.” (Doc. 218-12 at 4; Doc. 226 at 218–19.) He testified that the procedure for an
inmate who placed more than four sick calls in the span of 30 days was to withhold Tylenol
or other treatment for two weeks or longer. (Doc. 226 at 196–97.) Christmas also learned
that the jail would not pay for non-emergent surgeries. (Doc. 226 at 254; Doc. 218 at 158.)
Indeed, this policy was recorded in a nursing encounter tool. (Doc. 218-1 at 31 (“[Inmate]
education: Surgery and need for surgery. [Inmate] instructed that county will not pay for
non-emergent surgeries.”); Doc. 226 at 193.)
Christmas testified that his condition worsened from April 2016 to October 2017.
By his account, the hernias were “growing every day,” and he was able to observe a
difference in their size. (Doc. 226 at 192–93.) By October 2017, Christmas estimated the
hernias had grown at least a quarter of an inch and possibly a half an inch. (Doc. 226 at
210–11.) At this point, his stomach was swollen and burning, and the pain was excruciating
all the time. (Doc. 226 at 214–21.) On November 2, 2017, Dr. Rodriguez ordered X-rays
of Christmas’s abdomen. (Doc. 218-2 at 101; Doc. 227 at 26–30.) Finally, on November
9, 2017, Dr. Rodriguez referred Christmas to surgery to evaluate the hernia mesh problems
that he observed. (Doc. 219-2 at 781; Doc. 227 at 30–35.)
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Dr. Rodriguez referred Christmas to Dr. Janet Skarda, a general surgeon at
Lakeland Regional Hospital who consulted with Christmas prior to his arrest. When
Christmas saw Dr. Skarda for his referral consultation in December 2017, she observed
that he had a “large central abdominal hernia” and discussed surgical options for repairing
his hernia and reversal of his colostomy. (Doc. 218-14 at 50–51; Doc. 228 at 34.) At their
follow-up office visit in May 2018, they discussed surgical planning, and Christmas
indicated that he wished to proceed with both the hernia repair and the colostomy reversal.
(Doc. 218-14 at 47–48; Doc. 228 at 39–40.) Dr. Skarda preformed a colostomy reversal
and hernia repair for Christmas in February 2020. (Doc. 228 at 51–52.) At a follow-up
visit in March 2020, Christmas reported that he had minimal pain and was no longer using
prescription medication. (Doc. 218-14 at 30–32; Doc. 228 at 56.)
When asked whether performing surgery earlier, such as December 2016, would
have reduced or relieved Christmas’s pain, Dr. Skarda responded “Yes, I would presume
that would have happened.” (Doc. 228 at 57; id. at 56 (responding “[y]es” to whether “his
pain situation had been vastly improved as a result of the surgery”).) Dr. Skarda also
testified that, had the surgery occurred early, she saw no reason why it would not have been
equally as successful. (Id.) Further, in her view, Christmas could have avoided the
inconvenience and difficulties of “having to walk around with a colostomy” for “three or
four years.” (Doc. 228 at 57–58.)
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III.
LEGAL STANDARD
The question under a renewed motion for judgment as a matter of law under Rule
50(b) is whether the evidence presented is “legally sufficient . . . to find for the party on
that issue.” McGinnis v. Am. Home Mort. Serv., Inc., 817 F.3d 1241, 1254 (11th Cir.
2016) (quoting Fed. R. Civ. P. 50(a)(1)). “[T]he court must evaluate all the evidence,
together with any logical inferences, in the light most favorable to the non-moving party.”
Id. (quoting Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1560 (11th Cir.
1995)). “It is the jury’s task”—not the court’s—“to weigh conflicting evidence and
inference, and determine the credibility of witnesses.” Shannon v. Bellsouth Telecomm.,
Inc., 292 F.3d 712, 715 (11th Cir. 2002) (quoting Kipphardt v. Durango Steakhouse of
Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir. 2001)). A court must not second-guess the
jury or substitute its judgment for that of the jury. Id. If reasonable jurors could reach
different results, the court may not enter judgment as a matter of law. Id.
“A losing party may also move for a new trial under Rule 59 on the grounds that
‘the verdict is against the weight of evidence, that the damages are excessive, or that, for
other reasons, the trial was not fair . . . and may raise questions of law arising out of alleged
substantial errors in admission or rejection of evidence or instructions to the jury.’”
McGinnis, 817 F.3d at 1254 (quoting Montgomery Ward & Co. v. Duncan, 311 U.S.
243, 251 (1940)). A district court is free to weigh the evidence when considering a motion
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for a new trial and may consider evidence favoring the jury verdict and evidence in favor of
the moving party. Id. at 1255. But a motion for new trial should be granted only if the
jury’s verdict is “against the clear eight of the evidence” or “will result in a miscarriage of
justice.” Id. (quoting Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984)).
IV.
JUDGMENT AS A MATTER OF LAW
Under Supreme Court precedent interpreting the constitutional right to be free
from cruel and unusual punishment, a prison official’s “deliberate indifference to [the]
serious medical needs of [a] prisoner[] constitutes the unnecessary and wanton infliction
of pain . . . proscribed by the Eighth Amendment.” 5 Estelle v. Gamble, 429 U.S. 97, 104
(1976) (quotations and citation omitted). But not every claim of inadequate medical
treatment rises to the level of a constitutional violation. McElligott v. Foley, 182 F.3d 1248,
1254 (11th Cir. 1999); see also Estelle, 429 U.S. at 106 (“Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.”). “The
inadvertent or negligent failure to provide adequate medical care ‘cannot be said to
constitute an unnecessary wanton infliction of pain.’” Farrow v. West, 320 F.3d 1235, 1243
(11th Cir. 2003) (quoting Estelle, 429 U.S. at 105–06).
Because he was a pretrial detainee, Christmas’s rights arose under the Due Process Clause of the
Fourteenth Amendment rather than the Eighth Amendment. Mann v. Taser Int’l, Inc., 588 F.3d 1291,
1306 (11th Cir. 2009). The Court engages in the same analysis though.
5
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To prove that inadequate medical care rose to the level of a constitutional violation
under the Eighth or Fourteenth Amendments, a plaintiff must satisfy both an objective
and a subjective inquiry. Id. A plaintiff must establish that he suffered from an “objectively
serious medical need” and that the prison official acted with deliberate indifference to that
need. Id. Defendants move for judgment as a matter of law, arguing that Christmas did
not present sufficient evidence for the jury to reasonably conclude that Christmas suffered
a serious medical need or that either defendant was deliberately indifferent to Christmas’s
medical needs. The Court disagrees. The evidence presented at trial was sufficient for a
reasonable jury to find Defendants liable under the Fourteenth Amendment.
A. Serious Medical Need
First, Christmas has presented evidence from which a reasonable jury could
conclude that he suffered from a serious medical need. In the Eleventh Circuit, “a serious
medical need is considered ‘one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor’s attention.’” Melton v. Abston, 841 F.3d 1207, 1221–22 (11th Cir.
2016) (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir.
1994)). A medical need is serious if it poses “a substantial risk of serious harm” if left
unattended. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quoting
Farrow, 320 F.3d at 1243). Importantly for the present case, “[s]evere pain that is not
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promptly or adequately treated can also constitute a serious medical need depending on the
circumstances.” Melton, 841 F.3d at 1222 (citing McElligott, 182 F.3d at 1255–59).
For example, in McElligott, a jail inmate who had complained for several months
of severe stomach pains, sensitivity to touch, aches, an inability to eat, vomiting, and
ineffectiveness of over-the-counter medication, brought a deliberate indifference claim
against the jail’s physician and a nurse. 182 F.3d at 1252–53. The constant complaints and
troubling symptoms sufficed for a jury to conclude that the defendants knew of a substantial
risk of harm to the plaintiff, despite the defendants not knowing that the plaintiff had
cancer—a condition that was diagnosed only after his release. Id. at 1256.
Similarly, in Melton, an inmate suffered a broken arm. 841 F.3d at 1222. It was not
unreasonable for the jury to conclude that his injury was “so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention” where he presented testimony
that his broken arm showed visible signs of damage. 841 F.3d at 1222 (quoting Farrow,
320 F.3d at 1243). The Melton plaintiff testified that the pain and intensity in his arm
continued for months and he lost sensation in his broken hand over time, which was
sufficient proof that the pain constituted a serious medical need. Id.
Here, Christmas presented evidence that he had at least one hernia and a colostomy
that were both being considered for surgery when he was arrested. (Doc. 226 at 168, 170.)
He testified and presented medical records corroborating the fact that he complained of
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excruciating pain numerous times over eighteen months. See Table 1, supra. He testified
that Dr. Rodriguez told him the body could take a lot of pain. (Doc. 226 at 190.) Further,
he testified that the hernia visibly grew over the many months he complained of pain—an
obvious complication resulting from a colostomy and deteriorating abdominal mesh that
Drs. Rodriguez and Gomez knew about—and that he was in so much pain that he blacked
out in front of Dr. Rodriguez. (Doc. 226 at 192–93, 210–21.) Construing the evidence in
the light most favorable to Christmas, a reasonable jury could have concluded that
Christmas suffered from a serious medical need so obvious that a lay person would
recognize it—severe pain that presented a substantial risk of harm if left unattended,
particularly given the underlying (and known) cause of the pain.
Defendants, claiming otherwise, argue that no doctor at the jail diagnosed his
physical condition as requiring emergency or specialist attention, but this argument
misunderstands the legal standard. (Doc. 231 at 16–20.) To be sure, one way to prove a
serious medical need is by presenting evidence of a medical diagnosis; but another way is
to submit evidence of a medical need “so obvious that even a lay person would easily
recognize the necessity.” Hill, 40 F.3d at 1187 (quotation omitted). Christmas testified
that one hernia was visible and growing—the size of a golf ball—and that at one point he
began expelling waste normally and not into his colostomy bag—the very thing a colostomy
is intended to prevent. (Doc. 226 at 210–11.) In conjunction with the visible manifestations
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of something having gone awry with the abdominal mesh and colostomy, he directly and
repeatedly told the Defendants about his severe pain. And he filed 27 health services
requests detailing his pain. These facts present a markedly different situation than the
string cite of cases Defendants rely upon for support that no deliberate indifference claim
lies when a physician provides some other treatment to a reducible hernia. (Doc. 231 at
19.) Drs. Rodriguez and Gomez even testified that hernias caused by weakening of
abdominal mesh, like Christmas’s, are not reducible absent surgery. (Doc. 226 at 253–54;
Doc. 227 at 69.) A reasonable jury could conclude from his testimony that his medical need
was obvious to even a lay person and that it presented a substantial risk of harm if left
unattended.
Indeed, many cases arise in a posture like this one where the severe pain is reflective
of an underlying medical condition that poses the risk of serious harm. In McElligott, the
severe abdominal pain was a sign of cancer. 182 F.3d at 1252–53. In Farrow, severe oral
pain was indicative of the plaintiff’s need for dentures. 320 F.3d at 1243–44 (“In certain
circumstances, the need for dental care combined with the effects of not receiving it may
give rise to a sufficiently serious medical need to show objectively a substantial risk of
serious harm.”). These cases are clear: where a prisoner suffers from severe pain in a context
that gives rise to an inference of an underlying problem 6 and complains about it for months,
The Court summarizes this rule based on the Eleventh Circuit’s caselaw but notes it would seemingly
not apply in a context where allegations of pain represent an unreasonable complaint by a prisoner (such
6
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there is sufficient evidence for a jury to conclude that he suffered from a serious medical
need that posed a substantial risk of serious harm.
B. Deliberate Indifference
Not only has Christmas presented sufficient evidence of an objectively serious
medical need, he also has presented evidence sufficient for a reasonable jury to conclude
that the Defendants were deliberately indifferent to that serious medical need. Christmas
makes deliberate indifference claims against Dr. Rodriguez in his individual capacity and
against Dr. Gomez in both her individual capacity and her supervisory capacity. He clears
the bar as to all three theories of liability.
Under an individual capacity theory of liability, “[a] plaintiff claiming deliberate
indifference to a serious medical need must prove: (1) subjective knowledge of a risk of
serious harm; (2) disregard of that risk; (3) by conduct that is more than mere negligence.”
Melton, 841 F.3d at 1223. Conduct that rises to the level of deliberate indifference may be
“(1) grossly inadequate care; (2) a decision to take an easier but less efficacious course of
treatment; and (3) medical care that is so cursory as to amount to no treatment.” Id. (citing
Bingham v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011)). Further, a defendant may be
as a hypochondriac complaining at length of unbearable pain due to a paper cut or something of similar
exaggeration). Of course, Christmas’s claims resemble nothing of the sort and thus this Court is not
confronted with that scenario. Nor would an ordinary lay person conclude that kind of hypothetical
warrants medical attention. See Hill, 40 F.3d at 1187–88 (summarizing that constitutional violations
occur when medical needs ‘involve life-threatening conditions or situations where it is apparent that delay
would detrimentally exacerbate the medical problem” but not for “delay or even denial of medical
treatment for superficial, nonserious physical conditions”).
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liable if he or she unreasonably refuses to treat an inmate’s need for medical care or delays
necessary treatment without explanation or for non-medical reasons. Id. Stated otherwise,
although mere negligence will not suffice to support an Eighth Amendment claim, “prison
officials with knowledge of the need for care may not, by failing to provide care, delaying
care, or providing grossly inadequate care, cause a prisoner to needlessly suffer the pain
resulting from his or her illness.” Estrada v. Stewart, 703 F. App’x 755, 759 (11th Cir.
2017) (quoting McElligott, 182 F.3d at 1257). “In considering a deliberate indifference
claim, ‘[e]ach individual Defendant must be judged separately and on the basis of what that
persons knows.’” Melton, 841 F.3d at 1224 (quoting Burnette v. Taylor, 533 F.3d 1325,
1331 (11th Cir. 2008)).
Under a supervisory theory of liability, a plaintiff must present evidence that the
supervisor “personally participate[d] in the alleged constitutional violation” or of a “causal
connection between the actions of the supervising official and the alleged deprivation.”
Mathews v. Crosby, 480 F.3d 1265, 1270 (11th Cir. 2007) (quoting Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003)). “A causal connection may be established when: (1) a
‘history of widespread abuse’ puts the responsible supervisor on notice of the need to correct
the alleged deprivation, and he or she fails to do so; (2) a supervisor’s custom or policy
results in deliberate indifference to constitutional rights; or (3) facts support an inference
that the supervisor directed subordinates to act unlawfully or knew that subordinates would
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act unlawfully and failed to stop them from doing so.” Id. (quoting Cottone, 326 F.3d at
1360). At trial, Christmas conceded that there was not enough evidence to support findings
of a history of widespread abuse, that Dr. Gomez directed Dr. Rodriguez to take action
that resulted in the alleged violation, or that Dr. Gomez knew that Dr. Rodriguez would
take actions in violation of Christmas’s rights and failed to stop him. The Court therefore
never instructed the jury on these alternative theories of supervisory liability. Instead,
Christmas proceeded solely on the theories that Dr. Gomez either personally participated
in the constitutional violation or her policy or custom resulted in a deprivation of his
constitutional rights.
1. Dr. Rodriguez
Christmas presented sufficient evidence for a reasonable jury to conclude that Dr.
Rodriguez was deliberately indifferent to his severe pain. Christmas presented Dr.
Rodriguez’s patient report from his May 2016 evaluation of Christmas, in which he noted
that Christmas had a colostomy and a ventral hernia. (Doc. 218-1 at 24; Doc. 226 at 252–
53.) Christmas testified that he personally complained of severe abdominal pain to Dr.
Rodriguez on many occasions after this initial visit and that in response, Dr. Rodriguez
gave him only Tylenol and told him that the body could take a lot of pain. Further,
Christmas recounted an incident in which he blacked out in Dr. Rodriguez’s office, Dr.
Rodriguez revived him, and Dr. Rodriguez just sent him back to his dorm for rest. (Doc.
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226 at 212–23.) A reasonable jury could conclude from this evidence that Dr. Rodriguez
had a subjective knowledge that Christmas’s pain posed a substantial risk of serious harm
and that he disregarded that risk by conduct that is more than mere negligence through
administering only Tylenol on occasion. See McElligott, 182 F.3d at 1257 (“Insofar as
Elmore’s pain was concerned, a jury could find that the medication provided to Elmore
was so cursory as to amount to no care at all. A jury could conclude that, despite being
aware that the medication prescribed for Elmore was not treating the severe pain he was
experiencing, Dr. Foley and Wagner did nothing to treat Elmore’s pain or respond to the
deterioration of his condition.”). The Court therefore denies Dr. Rodriguez’s Rule 50(b)
motion.
Defendants argue that Christmas cannot succeed on his claims because he received
a medical diagnosis and care in the form of Tylenol and prescriptions for mental health
medications. (Doc. 231.) But a jury is free to conclude that this treatment was “so cursory
as to amount to no treatment” at all, especially in the light of Christmas’s testimony
regarding worsening symptoms, his surgical history of abdominal mesh and a temporary
colostomy, his numerous medical requests for more pain medicine and attention to his
colostomy and hernia-related problems, and the many times he was denied even Tylenol
due to policies that seemed aimed at dissuading an inmate from repeatedly asking for
medication. See Melton, 841 F.3d at 1225–26 (concluding a reasonable jury could find a
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doctor was deliberately indifferent where the doctor delayed meeting with inmate with
broken arm for months and even then only prescribed Ibuprofen, Tramadol, and Darvocet
for his severe pain); see also Farrow, 320 F.3d at 1246–47 (“substantial and inordinate delay
in treatment” raised a jury question as to deliberate indifference toward prisoner’s medical
need); see also Estrada, 703 F. App’x at 760 (holding that the plaintiff stated a plausible
Eighth Amendment claim against medical providers and a prison administrator who knew
the extent of his plan, “knew that the course of treatment was largely ineffective,” and took
no action to improve the plaintiff’s condition for a prolonged period of time (quoting
McElligott, 182 F.2d at 1257)).
Defendants further argue that Dr. Rodriguez was acting in his medical judgment by
not referring Christmas to a specialist to evaluate his conditions. But this contention
misunderstands two things. First, caselaw does not support a principle of absolute
immunity for any decision made by a medical professional while treating patients. That
rule would absolve physicians and nurses from all liability under the Eighth Amendment
so long as the provider prefaced his actions with a declaration that it was in his “medical
judgment” to do so. Governing precedent does not comport with that theory. See
McElligott, 182 F.3d at 1259 (rejecting argument that Eighth Amendment precludes
liability where defendant provided medical care to plaintiff because “the course of a
physician’s treatment” can “manifest the physician’s deliberate indifference to the inmate’s
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medical needs” (quoting Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir. 1989))).
Indeed, the Eleventh Circuit constitutionally faults a provider when he or she “fail[s] to
provide care, delay[s] care, or provid[es] grossly inadequate care.” Estrada, 703 F. App’x at
760 (quoting McElligott, 182 F.3d at 1257). A difference of medical opinion on a course
of treatment is distinct from a decision made by a medical provider that amounts to
minimal or cursory treatment. See Melton, 841 F.3d at 1223 (“In our decisions, conduct
deliberately indifferent to serious medical needs has included: (1) grossly inadequate care;
(2) a decision to take an easier but less efficacious course of treatment; and (3) medical care
that is so cursory as to amount to no treatment at all.”). For instance, it is clear that
prisoners have a right to timely treatment if presenting a serious medical need, meaning a
medical professional’s decision willfully to defer treatment is not immune from liability.
See McElligott, 182 F.3d at 1257–59 (finding jury question existed as to whether medical
staff was deliberately indifferent to medical need for further diagnosis and treatment of
severe pain where prisoner was given diet changes and Tylenol but staff continued not to
pursue further tests); Farrow, 320 F.3d at 1247 (“‘[D]elayed treatment for injuries that are
of a lesser degree . . . may also give rise to constitutional claims.’” (quoting Harris v. Coweta
Cnty., 21 F.3d 388, 294 (11th Cir. 1994))).
Second, while Defendants attempt to recast this case as one in which an inmate
requested specialized treatment from an outside physician while Defendants disagreed with
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that request in their “medical judgment,” (Doc. 231 at 17), they fail to acknowledge that
Christmas’s claim is not merely that he was not referred for specialized treatment.
Christmas testified that he was in severe pain for months, that he complained about it and
sought help on a frequent basis, and that Dr. Rodriguez intentionally withheld treatment
that might have alleviated his pain—including prescription or more efficacious pain
medication, regular colostomy and hernia maintenance, and, yes ultimately, referral to an
outside physician—despite knowing that his condition posed a substantial risk of serious
harm if left unchecked. Christmas was not seeking specialized treatment like laser eye
surgery or orthopedic surgery for a small cyst; he was seeking any treatment for the
“excruciating” pain that persisted over eighteen months. Contra Hilton v. McHugh, 178
F. App’x 866, 870–71 (11th Cir. 2006) (concluding that nurse practitioner was not
deliberately indifferent to inmate’s serious medical condition despite claim that an
orthopedic specialist removed a golf-ball sized cyst from elbow where plaintiff was
prescribed substantial pain medication and provided two elbow braces); Tucker v. Busbee,
619 F. App’x 868, 871 (11th Cir. 2015) (affirming dismissal of complaint that alleged
doctor should have compelled prison officials to send inmate suffering from diabetic
retinopathy to a laser eye surgeon for specialized treatment when inmate continued to
receive medical care for his diabetes). Contrary to Defendants’ contention, Christmas’s
claim is not foreclosed as a matter of law.
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2. Dr. Gomez
Additionally, Christmas presented sufficient evidence for a reasonable jury to
conclude that Dr. Gomez was liable in her individual and supervisory capacity. While there
is admittedly less evidence to support a finding of liability for Dr. Gomez, the Court is
cognizant that it is the jury’s role to weigh credibility and to find facts, and the Court is
obliged at this point to view all evidence in the light most favorable to Christmas. The
Court will not undo the jury’s verdict simply because it might have weighed the evidence
differently had it been the factfinder—that would be unlawful. And because Christmas
presented sufficient evidence to preclude judgment as a matter of law for Dr. Gomez, the
Court denies her motion under Rule 50(b).
a. Individual Liability
First, Christmas presented sufficient evidence for a reasonable jury to conclude that
Dr. Gomez had a subjective knowledge of Christmas’s pain and disregarded that risk by
conduct that is more than mere negligence. Christmas testified that he saw Dr. Gomez
multiple times and complained to her about the immense pain that he was experiencing.
(Doc. 226 at 231–32.) Despite Dr. Gomez’s testimony that she never treated him,
Christmas provided treatment orders that were made “per Gomez” and prescriptions for
Christmas in her name. (Doc. 218-3 at 34–40, 119, 121, 125, 131, 145, 147, 149, 151.)
He also presented an affidavit by Dr. Gomez stating, “At times Mr. Christmas has
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complained of pain, those complaints were addressed by providing prescription strength
and over-the-counter pain medications. . . . If at any time I thought Mr. Christmas needed
additional care or specialty consultation, I would have entered those orders.” (Doc. 227 at
74–76.) Further, Dr. Gomez had “final responsibility for making or approving all medical
decisions regarding the care provided to inmates in the Polk County Jail.” (Doc. 227 at 55,
57; Doc. 218-13 at 17.) Dr. Rodriguez testified that he was in constant communication
with Dr. Gomez and consulted with her on non-emergent treatment. (Doc. 226 at 240.)
These pieces of evidence, taken together, permit a reasonable jury to draw the inference
that Dr. Gomez was personally involved in Christmas’s treatment, knew of the pain he was
experiencing, and intentionally decided not to provide further treatment beyond the
Tylenol prescribed. To be sure, subjective knowledge almost always must be proven
through circumstantial evidence. See Farmer v. Brennan, 511 U.S. 825, 843 (1994)
(“Whether a prison official had the requisite knowledge of a substantial risk is a question
of fact subject to demonstration in the usual ways, including inference from circumstantial
evidence, and a factfinder may conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious.” (internal citations omitted)).
Compare these facts to those in Melton. In Melton, the Eleventh Circuit reversed
a grant of summary judgment in favor of a sheriff who was informed of the plaintiff’s
broken arm only by secondhand reports from the detainee’s family members and inmate
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request forms. 841 F.3d at 1229–30. This evidence, coupled with an affidavit from the
sheriff that “instructed [his] staff to provide all necessary medical care to Mr. Melton,” was
sufficient to create a triable issue of fact of the sheriff’s subjective knowledge of the inmate’s
serious medical need. Id. The court further concluded that evidence that the sheriff failed
to authorize x-rays and did not permit consultation with an orthopedic surgeon created a
triable issue of fact as to whether the sheriff deliberately denied medical treatment to the
inmate. Id.
The Melton facts are not so different from Dr. Gomez’s situation; there is perhaps
more evidence here in Christmas’s favor. He testified that he told her directly about his
pain, he presented evidence that she ordered him prescriptions, and her own affidavit
asserted that she would have provided further medical treatment if she deemed it
necessary—all evidence from which a jury could infer she was aware of his condition and
involved, at least in some way, with his treatment or lack thereof. Because “‘[c]hoosing to
deliberately disregard’ an inmate’s complaints of pain ‘without any investigation or
inquiry,’” constitutes deliberate indifference, Taylor v. Hughes, 920 F.3d 729, 734 (11th
Cir. 2019) (quoting Goebert v. Lee Cnty., 510 F.3d 1312, 1328 (11th Cir. 2007)), a
reasonable jury may conclude that Dr. Gomez made a decision not to investigate the cause
of Christmas’s repeated complaints of pain, which showed a deliberate disregard for the
substantial risk of harm to him.
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b. Supervisory Liability
Christmas has also presented sufficient evidence for a reasonable jury to conclude
that Dr. Gomez was liable for Dr. Rodriguez’s deliberate indifference in her supervisory
capacity, specifically that she personally participated in the constitutional violation or that
her policy or custom resulted in a deprivation of Christmas’s Fourteenth Amendment right.
As explained above, a jury may infer from the evidence presented that Dr. Gomez
personally participated in the violations of Christmas’s rights. 7 Her name appeared on
orders and prescriptions, indicating a personal hand in his treatment decisions. Dr.
Rodriguez testified of daily phone calls and consultation with Dr. Gomez regarding patient
treatment, particularly non-emergent treatment. (Doc. 226 at 238–40.) Further, to the
extent Christmas might have been referred to an outside specialist earlier, Dr. Gomez
would have had to approve that request from Dr. Rodriguez. (Doc. 226 at 239, 244.) And
Dr. Gomez’s own affidavit permits a natural inference of her oversight over Christmas’s
treatment. While Dr. Gomez had a different view of her role—that it was “just a title” and
she did not really supervise Dr. Rodriguez—a jury may choose not to credit her testimony
It is not entirely clear from caselaw how “personally participated in the violation” is so distinct from an
individual theory of liability. To the extent there is daylight between the two theories, it is the difference
between personally violating the claimant’s constitutional rights and participating in another actor’s
violation of the claimant’s rights. For example, here it would be the difference between Dr. Gomez
personally giving constitutionally inadequate treatment herself, i.e., by prescribing inadequate mediation or
directing cursory treatment, compared to Dr. Gomez participating in Dr. Rodriguez’s constitutionally
inadequate treatment, i.e., consulting on treatment plans over the phone.
7
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and instead to give weight to Dr. Rodriguez’s understanding of their relationship and
certainly her title and role of “medical director.” (Doc. 227 at 56–58.)
Further, there was sufficient evidence for the jury to conclude that Dr. Gomez’s
policy or policies resulted in the denial of Christmas’s rights. Christmas testified that he
was told many times that the medical providers at Polk County Jail did not treat chronic
pain. (Doc. 226 at 186, 189.) Indeed, this testimony was corroborated by a written response
Christmas received to an inmate grievance form signed by a medical provider: “As I am
sure that my medical staff has told you before, we do not treat chronic pain.” (Doc. 21812 at 4; Doc. 226 at 218–19.) Christmas also testified that he was told that the jail did not
pay for non-emergent surgeries, and a nurse’s report admitted into evidence confirmed that
this policy was conveyed to Christmas. (Doc. 218-1 at 31 (“[Inmate] education: Surgery
and need for surgery. [Inmate] instructed that county will not pay for non-emergent
surgeries.”); Doc. 226 at 193.)
Christmas also presented evidence from which a reasonable jury could conclude that
these policies were attributable to Gomez and implemented by her. Dr. Gomez served as
the medical site director and approved the policies implemented at the jail. (Doc. 227 at
52–53.) For example, Dr. Gomez testified that she signed the yearly protocols that gave
the nurses authorization to give certain over-the-counter medications. (Doc. 227 at 72.)
Christmas testified that his understanding—from observing the nurses and the
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explanations given when they refused treatment—was that Dr. Gomez was in charge and
nurses required her approval to provide the treatment he sought. (Doc. 226 at 200-02.) Dr.
Gomez herself even introduced this evidence of her supervisory role in implementing the
jail’s policies. (Doc. 227 at 80–81 (discussing how the nursing protocol worked and her role
in approving them).) And the nurses informed Christmas that non-emergent surgeries
would not be treated as a matter of protocol. (Doc. 218-1 at 31 (“[Inmate] education:
Surgery and need for surgery. [Inmate] instructed that county will not pay for nonemergent surgeries.”); Doc. 218-12 at 4; Doc. 226 at 218–19 (“As I am sure that my
medical staff has told you before, we do not treat chronic pain.”).) Christmas also presented
many nurses’ orders for Prilosec, Effexor, and Tylenol that were made “per Gomez,” in
other words, per her approved policies as medical director of the Polk County Jail. (Doc.
218-3 at 34–40.) From this evidence, a jury could reasonably infer that Dr. Gomez
implemented a policy of either non-treatment of chronic pain with medications more
efficacious than Tylenol or one for not paying for non-emergent surgeries and that either
policy resulted in Dr. Rodriguez not treating Christmas’s severe pain and worsening hernia
and colostomy problems. See Franklin v. Tatum, 627 F. App’x 761, 766–67 (11th Cir.
2015) (finding a genuine issue of material fact as to whether a custom resulted in sexual
assault of female pretrial detainees where evidence was presented that sheriff had no policy
regarding housing of female inmates and did not enforce cross-gender transport policy).
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The jury heard evidence that these policies (or protocols) governed medical treatment, that
they curtailed Christmas’s treatment on many occasions, and that Dr. Gomez implemented
the medical policies at the Polk County Jail. These facts allow an inference that the
“affirmative custom or policy implemented by the supervisory defendant[] played a role in
[Christmas’s serious medical need].” Cottone, 326 F.3d at 1362.
Importantly, this case is not like those in which a plaintiff merely shows one instance
of an unconstitutional act in support of the assertion that a policy resulting in constitutional
violations exists. See, e.g., Piazza v. Jefferson Cnty., 923 F.3d 947, 957–58 (11th Cir. 2019)
(finding allegations that officers were indifferent to an inmate’s medical needs, without
alleging any facts concerning the policies or customs that led to alleged violations,
insufficient to state a supervisory liability claim); Craig v. Floyd Cnty., 643 F.3d 1306,
1312 (11th Cir. 2011) (affirming grant of summary judgment where plaintiff’s “only proof
of [the] alleged policy or custom [was] that nine medical providers evaluated him sixteen
times over nine days before referring him to a physician”). To be sure, in those cases “[a]
single incident of a constitutional violation is insufficient to prove a policy or custom even
when the incident involves several [subordinates.]” Id. at 1311 (second alteration in
original). But here, Christmas testified he was told about these policies in response to his
requests and he introduced specific evidence of these policies in the form of a nurse’s report
and a response to his grievance that, on their face, state the policies exist. Cf. Piazza, 923
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F.3d at 958 (“Because [plaintiff’s] complaint contains only conclusory assertions that jail
officers were indifferent to [inmate’s] needs pursuant to certain policies or customs—
without alleging any facts concerning those policies or customs . . . —he has not stated a
claim for supervisory liability for deliberate indifference to serious medical needs.”). This
evidence of policies, along with his testimony that he was repeatedly informed from
medical providers at the jail that these policies prevented providing him additional aid,
along with evidence that Dr. Gomez was the one responsible for implementing policies at
the jail is enough for a reasonable jury to infer a causal connection establishing Dr. Gomez’s
supervisory liability.
V.
MOTION FOR A NEW TRIAL
Defendants also move for a new trial because they claim that (1) the trial evidence
greatly weighed in their favor and (2) the Court erred in allowing an amendment to include
a supervisory claim against Dr. Gomez. For the same reasons that Defendants’ motion for
judgment as a matter of law was unsuccessful, Defendants’ argument that the greater
weight of evidence was in their favor is not persuasive. “A new trial should not be granted
on evidentiary grounds unless, at a minimum, the verdict is against the great—not merely
the greater—weight of the evidence.” United States v. Sullivan, 1 F.3d 1191, 1196 (11th
Cir. 1993) (emphasis added). Thus, it is not enough that the evidence weighs more in favor
of the moving party, the evidence must be overwhelming. In a case like this one, where
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questions of credibility rule the day, the Court cannot say that the great weight of evidence
is in favor of Defendants.
Similarly, Defendants’ contention that the Court erred by granting Christmas’s
motion to conform the pleadings to the evidence presented and instruct the jury as to
supervisory liability for Dr. Gomez is not persuasive. Under Rule 15(b)(1), a court may
allow amendment of the pleadings at trial if “doing so will aid in presenting the merits and
the objecting party fails to satisfy the court that the evidence would prejudice that party’s
action or defense on the merits.” Defendants presented no such prejudice to their defense
prior to trial, during trial, or even now in their motion for a new trial.
By Defendants’ account, they first became aware of Christmas’s intent to pursue a
supervisory liability claim against Dr. Gomez via the pretrial statement and Christmas’s
request for a jury instruction on the issue. That is odd, since the parties are required to
confer and to file a joint pretrial statement. In fact, counsel for Defendants signed the joint
pretrial statement (Doc. 173), so he would have known of the potential theory of
supervisory liability prior to the filing of that statement. As such, Defendants had roughly
three weeks’ notice prior to trial. Despite the intervening time to contemplate the issue and
exhaustive discussion of the issue at the pretrial conference, the beginning of trial, and the
charge conference, defense counsel never articulated prejudice to Dr. Gomez beyond the
ubiquitous desire to not litigate an unpled claim. (Doc. 227 at 124 (“Bringing separate
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claims on the eve of trial after everything is closed is obviously, in my mind, prejudicial.
That’s all I can say.”).) Even now, Defendants’ motion only has this to offer as prejudice:
“A week before trial, a new claim was raised. Discovery was long-over. Trial was on the
immediate horizon. Introducing a new claim at that point was clear prejudice.” (Doc. 233
at 16.) In fact, when discussing the Rule 15(b)(1) motion near the close of trial, the Court
pressed defense counsel to articulate how Dr. Gomez was prejudiced, namely, what
evidence would he have sought in discovery or objected to or how would he have in any
way litigated the case differently. (Doc. 227 at 119 (“But what’s the actual prejudice besides
late notice?”).) Counsel offered none. Instead, he returned to his argument that there was
no evidence of supervisory liability. (Id.)
Worse yet, despite explicit instructions from the Court to object to individual pieces
of evidence that were not relevant to a properly pleaded supervisory claim, see (Doc. 226
at 33 (“But I do need you to object when it’s individual pieces of evidence that you think
are inadmissible because they’re going to that theory of liability.”)), defense counsel raised
no objections of the kind. This is perhaps because evidence that would be relevant for
supervisory liability would also be relevant to the individual liability claims. And, ironically,
it was defense counsel who introduced evidence of Dr. Gomez’s supervisory role through
her testimony regarding implementation of Corizon policies, audits of the Polk County
jail, and signing off on nursing protocol. (Doc. 227 at 76–82.) Allowing evidence that could
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prove multiple claims comports with the purpose of Rule 15(b) “to promote the objective
of deciding cases on their merits rather than in terms of the relative pleading skills of
counsel,” a purpose especially present in the case of a pro se pleading. Charles A. Wright
& Arthur R. Miller, 6A Fed. Prac. & Proc. Civ. § 1491 (3d ed. 2021); cf. Tannebaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held to a less
stringent standard than pleading drafted by attorneys and will, therefore, be liberally
construed.”).
This reality also undercuts Defendants’ claims of prejudice. Defendants never
pointed to any evidence that was improperly admitted nor how they might have rebutted
that evidence if given further opportunities to prepare. “Prejudice turns on whether the
defendant had a fair opportunity to defend and whether the defendant could offer any
additional evidence if the case were to be retried on a different theory.” Doe #6 v. Miami-
Dade Cnty., 974 F.3d 1333, 1340 (11th Cir. 2020) (quotations and alterations omitted).
At bottom, Dr. Gomez never articulated how she would have litigated the case differently
if she had more time to prepare for the supervisory liability claim. Accordingly, the motion
for new trial is denied.
VI.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Judgment as a Matter of Law
(Doc. 231) and Motion for a New Trial (233) are DENIED.
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ORDERED in Tampa, Florida, on September 3, 2021.
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