*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this opinion should not be published and is not precedent except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.

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
2

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
3

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,
4

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
 

1 The district court reduced this actual damage total by

$28,798.40, which represented the medical expenses paid by San

Patricio County. 

5

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
6

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
7

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).
8

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
9

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.