William M. Hicks v. Ken Jenne

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 4, 2007
No. 04-16386 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 00-06087-CV-WPD

WILLIAM M. HICKS,

Plaintiff-Appellant,

versus

KEN JENNE, Broward County Sheriff,
BARBARA HANSON-EVANS,
BARBARA LAW,
STANLEY HOLMES,
EMERGENCY MEDICAL SERVICE ASSOCIATION,
Correctional Care Member of Inphynet,

Defendants-Appellees,

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(January 4, 2007)
Before TJOFLAT, ANDERSON, and BARKETT, Circuit Judges.

PER CURIAM:

William M. Hicks appeals from the district court’s order granting judgment

as a matter of law to the defendants on his 42 U.S.C. § 1983 claim for inadequate

medical care. Hicks alleges that physicians and staff failed to give him proper

medical treatment for injuries he suffered at the hands of a mentally ill detainee

while being held at the North Broward Detention Center on February 9, 1996.

After successfully appealing from a grant of summary judgment in favor of the

defendants,1 Hicks tried his case pro se to a jury over six days in July 2004. At the

close of his case, the defendants moved under Fed.R.Civ.Pro 50(a) for judgment as

a matter of law. The district court granted the motion after giving Hicks an

opportunity to respond. Hicks thereafter moved for reconsideration, which the

district court denied. On appeal and with the aid of counsel, Hicks argues that he

introduced sufficient evidence to overcome defendants’ Rule 50 motion.2 Upon

1
In an earlier unpublished decision, No. 02-14055, this Court affirmed summary
judgment as to Hicks’s claims against officials working at the Broward County Sheriff’s Office
for failing to protect Hicks from the assault, but we reversed summary judgment as to the
contract physicians and staff who Hicks alleged denied him adequate medical treatment.
2
In his pro se brief, which we liberally construe, Hicks cites a host of alleged errors by
the district court, all having to do either with the court’s management of its trial calendar or its
evidentiary rulings. Many of these were raised and addressed previously in the context of
Hicks’s motion for reconsideration. We discern no error in the district court’s rulings.

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careful review of the record and consideration of the parties’ briefs, we affirm.

We review the district court’s grant of judgment as a matter of law under

Rule 50(a) de novo, using the same standard that guided the district court.

McCormick v. Aderholt, 293 F.3d 1254, 1258 (11th Cir. 2002). A motion for

judgment as a matter of law is properly granted if “there is no legally sufficient

evidentiary basis for a reasonable jury” to find for the non-moving party.

Fed.R.Civ.P. 50(a). Like the district court, we examine the evidence in a light most

favorable to the non-moving party. McCormick, 293 F.3d at 1258.

In order for Hicks to prevail on his claim for inadequate medical treatment

under 42 U.S.C. § 1983 and the Fourteenth Amendment,3 he must prove (1) an

“objectively serious deprivation,” defined as a serious medical need accompanied

by a substantial risk of serious harm if unattended; (2) an inadequate response by

public officials amounting to an unnecessary and wanton infliction of pain that

goes beyond mere negligence; and (3) an attitude of deliberate indifference

demonstrating that the defendants were aware of facts from which a substantial

risk of serious harm could be inferred, and that the defendants actually did draw

3
Hicks fell victim to the attack while a pretrial detainee and thus his Fourteenth
Amendment rights, not his Eighth Amendment rights, are at issue. The legal standard is the
same in either case, however. Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th
Cir. 1997).

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such an inference. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

Because negligence alone is insufficient for liability under § 1983, Hicks must do

more than dispute the professional judgment of the medical staff regarding his

diagnosis and treatment. Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S. Ct. 285,

291-92 (1976). Deliberate indifference, however, can be established by evidence

that necessary medical treatment has been withheld or delayed for nonmedical or

unexplained reasons. See Farrow v. West, 320 F.3d 1235, 1247 (11th Cir. 2003)

(finding jury question on issue of deliberate indifference because of unexplained

fifteen-month delay in treatment). Hicks may also establish deliberate indifference

with evidence of treatment “so cursory as to amount to no treatment at all.” Ancata

v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir. 1985).

As for the first element of his claim, an objectively serious medical need,

Hicks alleges that he received fractures to both his zygomatic arch (cheekbone)

and his mandible (lower jaw) during his assault. The evidence demonstrates (and

the defendants readily admit) that Hicks did suffer a fracture of his cheekbone;

however, there is no evidence that Hicks ever had a broken jaw. Hicks presented

the testimony of a family member who saw “bones sticking out” of Hicks’s face,

along with bruises and swelling, but who could not specify the location or nature

of the injury. While a lay person can testify as to whether a plaintiff has a serious

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medical need, see Farrow, 320 F.3d at 1243, in this case numerous x-rays and a

CT scan confirmed that Hicks in fact did not have a fracture in his lower jaw. In

light of this evidence, no reasonable jury could conclude that Hicks suffered a

jawbone fracture from the lay observation recounted in his witness’s testimony.

Still, defendants concede that evidence of the cheekbone fracture alone qualifies

as a “serious medical need” having a substantial risk of serious harm if unattended.

Thus, Hicks’s evidence at trial established the first element of his claim.

Hicks, however, cannot establish deliberate indifference on the part of the

defendants with evidence of a cheekbone fracture only. Throughout his case,

Hicks sought to prove deliberate indifference by evidence that his injuries required

surgery, which was never provided. Undisputed testimony at trial showed that his

cheekbone fracture, which was not a displaced fracture, did not require surgery;

rather it would (and apparently did) heal properly on its own with the aid of

minimal medical attention. The defendant physicians in this case prescribed pain

medication, extra pillows, and a soft-food diet. The extensive medical record

Hicks amassed while seeking treatment amply demonstrates that the defendants

were not deliberately indifferent in treating him. Hicks may not approve of the

course of treatment given him, but he has failed to introduce evidence that

defendants were more than negligent or that his treatment was so cursory as to be

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nonexistent. Estelle,429 U.S. at 105-06; Ancata, 769 F.2d at 704.

It would be a different matter, if, as Hicks sought to prove, the defendants

actually believed that surgery was the necessary treatment for his injuries. At the

summary judgment stage, Hicks presented evidence that one of his physicians at

the detention facility, Dr. Uecker, had recommended surgery. Barbara Hanson-

Evans, Health Services Administrator for the Broward County Sheriff’s Office,

submitted an affidavit noting that Hicks’s medical records showed that “Dr.

Uecker suggested OMF (Open Mouth Fracture) surgery.”4 At trial, however, Ms.

Hanson-Evans (who is not a licensed physician) testified that she merely read from

Dr. Uecker’s notes when she updated Hicks’s medical records. She herself made

no medical judgments. Furthermore, the description in her affidavit was a

misreading of a progress note made by Dr. Uecker recommending that Hicks see

an “OMF surgeon”–not “surgery”–for the problems he continued to experience.

As Dr. Uecker testified, the purpose of recommending an OMF surgeon was to

diagnose possible Temporomandibular Joint (TMJ) Syndrome. At no time did Dr.

Uecker recommend surgery for Hicks. The OMF surgeon Hicks did see, Dr.

Weathers, likewise did not recommend surgery. Apart from Ms. Hanson-Evans’s

4
Contrary to Ms. Hanson-Evans’s understanding at the time, OMF stands for “oral and
maxillofacial,” not “Open Mouth Fracture.” There is no implication of a fracture in the acronym.

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erroneous affidavit, Hicks failed to introduce any evidence that surgery was the

proper or necessary treatment for his injury. In fact, when Hicks questioned Dr.

Uecker at trial, the district court reminded Hicks, who proceeded pro se, of the

need to ask Dr. Uecker about this central factual allegation. Hicks chose not to do

so. Without evidence of a jawbone fracture or the need for treatment, such as

surgery, beyond the care he was given, Hicks failed to introduce sufficient

evidence to overcome defendants’ Rule 50(a) motion. Accordingly, we affirm.

AFFIRMED.

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