         Case: 17-13059   Date Filed: 11/21/2018   Page: 1 of 27


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 17-13059
                     ________________________

                D.C. Docket No. 1:16-cv-23925-CMA



FIOR PICHARDO DE VELOZ,
CESAR CRISTOBAL VELOZ TIBURICO,


                                                        Plaintiffs-Appellants,

                                 versus

MIAMI-DADE COUNTY,
MIAMI-DADE CORRECTIONS AND REHABILITATION DEPARTMENT,
FATU KAMARA-HARRIS,
Nurse,
THE PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, FLORIDA,
d.b.a. Jackson Health System,
TRAVARRI JOHNSON,
Corporal, et al.,

                                                       Defendants-Appellees,

BOBBY MARSHALL,
Nurse, et al.,

                                                                   Defendants.
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                           ________________________

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

                               (November 21, 2018)

Before ED CARNES, Chief Judge, and ROSENBAUM and HULL, Circuit Judges.

HULL, Circuit Judge:

      Plaintiff Fior Pichardo De Veloz brought this lawsuit against defendants

Nurse Fatu Kamara Harris and Dr. Fredesvindo Rodriguez-Garcia who work in the

medical unit at the Turner Guilford Knight Correctional Center (the “TGK jail”).

In her second amended complaint, Mrs. Pichardo seeks damages for injuries that

she sustained during her time in pre-trial custody. After a strip search at booking,

Mrs. Pichardo was determined to be a biological female and booked into the TGK

jail as a female. Nonetheless, about six hours later, defendants in the medical unit

sent Mrs. Pichardo to a male prison without physically examining her, without

investigation, and indeed in the face of considerable information that she was a

woman. The district court granted the defendants’ motion to dismiss the second

amended complaint.

      This appeal involves only Mrs. Pichardo’s 42 U.S.C. § 1983 deliberate

indifference claims against defendants Nurse Harris and Dr. Rodriguez-Garcia.

Mrs. Pichardo alleges her constitutional rights were violated by Nurse Harris’s and


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Dr. Rodriguez-Garcia’s knowledge of and deliberate indifference to the substantial

risk of serious harm she faced by their wrongfully classifying her as a male inmate.

After careful review, and with the benefit of oral argument, we reverse the district

court’s order as to Mrs. Pichardo’s § 1983 claims against Nurse Harris and

Dr. Rodriguez-Garcia and remand for further proceedings.

                         I. FACTUAL BACKGROUND

      Because the defendants moved to dismiss the second amended complaint

under Federal Rule of Civil Procedure 12(b)(6), we accept the facts alleged in the

complaint as true and construe them in the light most favorable to the plaintiff Mrs.

Pichardo. See Mills v. Foremost Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008).

Also, because Mrs. Pichardo’s second amended complaint incorporates by

reference the Miami-Dade County Internal Investigation report into this incident,

as well several witness statements, we may properly consider those documents on

appeal. See Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369

(11th Cir. 1997) (“[W]here the plaintiff refers to certain documents in the

complaint and those documents are central to the plaintiff’s claim, then the Court

may consider the documents part of the pleadings for purposes of Rule 12(b)(6)




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dismissal, and the defendant’s attaching such documents to the motion to dismiss

will not require conversion of the motion into a motion for summary judgment.”). 1

   A. Arrest and Booking as a Female

       On November 4, 2013, Mrs. Pichardo—who is a wife, mother, grandmother,

prominent lawyer, and elected official in her home city in the Dominican

Republic—flew to Miami to be with her daughter, who was expecting a child. At

that time, Mrs. Pichardo was 50 years old and undergoing hormone replacement

therapy as prescribed by a doctor to address symptoms of menopause. She also

suffered from high blood pressure.

       Upon arrival at the Miami International Airport, at approximately 5:30 p.m.,

Mrs. Pichardo was arrested on an outstanding warrant. The arrest affidavit listed

Mrs. Pichardo’s gender as female.

       Around 6:30 p.m., Mrs. Pichardo was booked into the TGK jail, which is

operated by the Miami-Dade County Corrections and Rehabilitation Department.

At booking, Mrs. Pichardo’s gender was entered as female and she was processed

through intake as female. More specifically, at 7:17 p.m., a female officer strip

searched Mrs. Pichardo, during which she had to “lift her arms, turn around, bend

over at the waist, grab her butt cheeks, spread, [and] cough.” The female officer



       1
        The defendants, who also relied on these documents at length, attached them to their
motion to dismiss and do not object to our consideration of them on appeal.
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was required to “look at [Mrs. Pichardo’s] entire body and make sure there’s

nothing inserted up the reproductive area, nothing taped to the body, nothing

hidden.”

      Correctional officers conducting this initial strip search are responsible for

determining an inmate’s gender. If during a strip search, an officer discovers the

inmate is of the opposite gender than he or she appears to be, the search is

discontinued and a supervisor and officer of the inmate’s gender is summoned to

continue with the strip search. And if a doubt exists regarding the inmate’s gender,

medical staff are summoned and present during the strip search as well. According

to the female officer who conducted Mrs. Pichardo’s strip search, she “did not

notice anything abnormal” and gave Mrs. Pichardo the orange uniform that female

inmates wear. Thus, through the strip search, Mrs. Pichardo was correctly

classified as a female.

   B. Defendants Reclassify Mrs. Pichardo as Male

      At approximately 12:00 a.m. on November 5, due to Mrs. Pichardo’s history

of high blood pressure, Officer Kimberly Jones escorted her to the medical unit for

evaluation. Mrs. Pichardo arrived in the medical unit handcuffed along with other

female inmates. She was not there for the medical staff to make a gender

determination. At that time, Officer Audrey Morman, defendant Nurse Harris, and

defendant Dr. Rodriguez-Garcia were working in the medical unit of the TGK jail.


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Officer Morman placed Mrs. Pichardo and the other female inmates in a cell to

wait for the doctor to see them. Dr. Rodriguez-Garcia was the attending physician

on duty. Both he and Nurse Harris are licensed medical professionals with many

years of experience and were aware that women in their fifties are likely to be

undergoing menopause and that women undergoing menopause are commonly

given some form of hormone replacement therapy.

      While Mrs. Pichardo was waiting, Nurse Harris approached Officer Morman

and asked her if Mrs. Pichardo was a male. Although Nurse Harris had not yet

seen or interacted with Mrs. Pichardo, she told Officer Morman that she thought

that Mrs. Pichardo might be male based on a note in her medical file indicating that

she was undergoing hormone replacement therapy. Nurse Harris told Officer

Morman that male inmates take hormone pills to enhance their breasts; however,

Nurse Harris later acknowledged knowing that menopausal women take hormone

replacement pills too.

      In response, Officer Morman told Nurse Harris that Mrs. Pichardo had been

booked and classified as female. But Nurse Harris insisted that Mrs. Pichardo

might not be female because she took hormone pills. Officer Morman told Nurse

Harris that she still believed Mrs. Pichardo was female because she looked like a

woman and her file had “the blue tab,” which said female and was circled in red.

Nevertheless, Nurse Harris said she was going to examine Mrs. Pichardo.


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      Officer Morman and Nurse Harris then walked over to the holding cell and

Nurse Harris asked Mrs. Pichardo if she was female. Mrs. Pichardo told Nurse

Harris that she was a woman and did not understand why her gender was being

questioned. Nurse Harris also asked Mrs. Pichardo if she had “female parts.”

Once again, Mrs. Pichardo answered that she did and did not understand why she

was being asked those questions.

      At approximately 2:00 a.m., Nurse Harris escorted Mrs. Pichardo to the

examination room but was not present during Dr. Rodriguez-Garcia’s assessment

of Mrs. Pichardo. Dr. Rodriguez-Garcia evaluated Mrs. Pichardo, “which

consisted of medical history questions in Spanish, a visual check of the eyes,

mouth and skin for sores and [listening] to the lungs with a stethoscope.” Dr.

Rodriguez-Garcia did not physically examine Mrs. Pichardo undressed and in fact

he did not ask her to remove her clothes.

      Dr. Rodriguez-Garcia said that, when he began the examination, he had

reviewed Mrs. Pichardo’s medical pre-screening documentation, which stated that

she was undergoing hormone replacement therapy. Mrs. Pichardo’s medical pre-

screening assessment form, dated November 4, 2013, at 6:44 p.m. indicated that

she took hormone replacement pills, but also said “Menopause Medical” under the

comments. Despite being aware that menopausal women commonly take this type

of medication, Dr. Rodriguez-Garcia assumed that she was a man undergoing


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gender reassignment. “[H]e did not know why but when he learned that Inmate

Pichardo was on [hormone replacement therapy], he assumed that she was

transgender.”

        Dr. Rodriguez-Garcia “explained that based on the [hormone replacement

therapy] and the assumption that she (Pichardo) was transgender; he asked her in a

general sense if she had all [of her] ‘sex parts,’ [by] which he meant genitals.” He

also “asked Inmate Pichardo if she had any surgery to her genitals.” Mrs. Pichardo

replied that she did have all of her genitals and had not had any surgery on her

genitals.

        At no point did Dr. Rodriguez-Garcia ask Mrs. Pichardo if she was a

woman, a man, or transgender. While he vaguely asked about her “sex parts,” he

did not ask her if she had male or female genitalia. He also did not ask her why

she was on hormone replacement therapy because “it was a difficult question to

ask.”

        Dr. Rodriguez-Garcia decided to reclassify Mrs. Pichardo as male because

she was on hormone replacement therapy. He wrote on her medical chart that she

was a “male on hormonal treatment transgender” and indicated that she “could go

to the general [male] population.” He did so without ever physically examining

Mrs. Pichardo or asking Nurse Harris to physically examine her.




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      Dr. Rodriguez-Garcia explained that in cases where a visual check of the

genitals is required, the patient is taken to the clinic where a doctor, nurse, and

officer are present to perform the check. He acknowledged that he has conducted

such visual checks to verify an individual’s gender before, but did not perform

such a visual check to verify Mrs. Pichardo’s gender. Instead, he made a note in

her medical record that an assessment of her genital-urinary system was

“deferred”—meaning that an assessment would be conducted at a later time. Dr.

Rodriguez-Garcia knew that by classifying Mrs. Pichardo as a male, she would be

placed in an all-male detention facility.

      Five minutes after Nurse Harris took Mrs. Pichardo to the examination

room, Nurse Harris came back and told Officer Morman that “everything fell out,”

by which she meant Mrs. Pichardo’s “penis [and] testicles.” Nurse Harris,

however, was not present during Dr. Rodriguez-Garcia’s medical evaluation of

Mrs. Pichardo and had no basis for this statement. Nurse Harris also later admitted

that Dr. Rodriguez-Garcia did not tell her about his conversation with Mrs.

Pichardo.

      Once again, Officer Morman told Nurse Harris that she believed Mrs.

Pichardo looked like a female, but Nurse Harris insisted that Mrs. Pichardo was a

man. Officer Morman reviewed Mrs. Pichardo’s booking record and reminded

Nurse Harris that Mrs. Pichardo was strip searched when she arrived at the facility.


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Officer Morman later explained that if Mrs. Pichardo had a penis and testicles, the

officer who strip searched her during booking would have seen them. That is why

Officer Morman did not believe that Mrs. Pichardo was a man because it would

have been discovered during initial booking.

      Officer Morman called her supervisor, Sergeant Regina Price, to explain the

situation. According to Officer Morman, Sergeant Price also did not believe that

Mrs. Pichardo was male. However, because Dr. Rodriguez-Garcia had seen Mrs.

Pichardo and because Nurse Harris had said she was a man, Sergeant Price sent

Officer Jones back to the medical unit to escort Mrs. Pichardo to an all-male cell.

Sergeant Price also asked Officer Morman to get an addendum from Nurse Harris

confirming that Mrs. Pichardo was male, which the officer did. Nurse Harris gave

Officer Morman a health services incident addendum that identified Mrs. Pichardo

as: “Transgender, male parts, female tendencies.”

      Officer Kimberly Jones then returned to the medical unit to bring Mrs.

Pichardo back to her cell. When Officer Jones arrived, she learned that Doctor

Rodriguez-Garcia and Nurse Harris had determined that Mrs. Pichardo was a man.

Officer Jones then asked Nurse Harris three times if she had strip searched or

physically examined Mrs. Pichardo before claiming that she was a man. Nurse

Harris did not verbally confirm that she physically examined Mrs. Pichardo or

even answer Officer Jones’s questions. Instead, Nurse Harris simply replied “she’s


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a man” and walked away. Even though Nurse Harris insisted that Mrs. Pichardo

was a man, Officer Jones believed that Mrs. Pichardo was a woman.

      At about 2:15 a.m., Officer Jones escorted Mrs. Pichardo from the medical

unit and had her sit by herself outside the shift commander’s office. Officer Jones

did so because she felt that Mrs. Pichardo was female and she wanted to speak to

her supervisor, Sergeant Price. Officer Jones was concerned because Mrs.

Pichardo appeared to be female and “nothing about her said male.”

      Based on Dr. Rodriguez-Garcia’s assessment, Sergeant Price directed

Officer Jones to contact booking and advise them to change Mrs. Pichardo’s sex

from female to male. Officer Jones followed Sergeant Price’s instructions and, at

2:20 a.m., the booking department changed Mrs. Pichardo’s sex classification to

male. As a result, Mrs. Pichardo was transferred to Metro West, a male

correctional facility, where she was treated as a man and placed with the general

male population.

   C. Transfer to a Male Facility

      At about 12:43 p.m. on November 5, Mrs. Pichardo arrived at the Metro

West jail. A female officer escorted her to one of the cells in Three Alpha Wing, a

transit unit for new arrivals. Mrs. Pichardo told the officer that she was a woman.

The officer recognized that Mrs. Pichardo was female and replied: “you are a

woman. Good luck if you are alive tomorrow.”


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      When Mrs. Pichardo was placed in Three Alpha Wing, she was terrified.

She was surrounded by approximately 40 men and feared for her life. The male

inmates harassed her. Mrs. Pichardo was too afraid to use the restroom that was

being used by the male inmates and urinated on herself instead. Mrs. Pichardo

later told an investigator she felt “psychologically assaulted because everyone

looked at her as if she was a piñata.” The male inmates gathered in small groups,

called out to her, “Mami, Mami,” and laughed. At some point, Mrs. Pichardo

asked a female officer to please move her because “she was going to go crazy.”

      An officer in Three Alpha Wing said that Mrs. Pichardo was assigned to

Bunk 2 “because whenever there is someone that looks female, we always put

[th]em to the front so that the officer can watch them” for protection. The officer

also explained that Mrs. Pichardo looked scared to get off of her bunk and did not

want to interact with the other inmates.

      While she was in that cell, Mrs. Pichardo met an elderly man and told him

that she was a woman. The older man informed corrections officers that Mrs.

Pichardo was female but the officers did nothing.

   D. Metro West Staff Reclassifies Mrs. Pichardo as Female

      Meanwhile, Mrs. Pichardo’s family members were trying to contact her.

They had not heard from Mrs. Pichardo after her arrest, so they drove to the TGK

jail. An officer there told the family members that Mrs. Pichardo was housed at


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the Metro West jail, which they later learned was a male detention facility. Mrs.

Pichardo’s family informed the TGK jail staff that Mrs. Pichardo was a woman

and asked why she was housed in the male detention facility. As a result of their

prodding, the staff initiated an investigation to determine Mrs. Pichardo’s gender.

      At approximately 7:30 p.m. on November 5, Mrs. Pichardo was strip

searched again, this time by a female nurse at the Metro West jail. Several male

corrections officers were present during the strip search and laughed at her. Mrs.

Pichardo also remembered that someone took pictures of her while she was

undressed. The female nurse who conducted this second strip search said that her

initial impression was that Mrs. Pichardo was female and the strip search verified

Mrs. Pichardo’s biological sex to be female. The nurse also learned that Mrs.

Pichardo was a mother of three children and was taking hormone pills for

menopausal treatment. According to the nurse, Mrs. Pichardo did not appear to be

transgender. Mrs. Pichardo was then separated from the general male population.

   E. Transfer Back to the Female Facility and Release

      At around 9:00 p.m. on November 5, Mrs. Pichardo was transferred back to

the TGK jail and housed in an all-female unit. The next day, the TGK jail released

Mrs. Pichardo into the custody of the United States Marshal Service. As a result of

the defendants’ actions, Mrs. Pichardo alleged that she suffered from medically




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diagnosed post-traumatic stress disorder, marital instability, ridicule of her family,

humiliation, and professional decline.

                             II. PROCEDURAL HISTORY

       In her second amended complaint, Mrs. Pichardo raised 15 claims under

both federal and state law against multiple defendants, all of whom moved to

dismiss the claims. 2 Relevant to this appeal, Mrs. Pichardo alleged two claims

against Nurse Harris and Dr. Rodriguez-Garcia under § 1983 and the Fifth and

Fourteenth Amendments for deliberate indifference to a substantial risk of serious

harm to her health and safety.

       The defendants moved to dismiss the complaint for failure to state a claim,

arguing that they did not violate Mrs. Pichardo’s clearly established constitutional

rights and were entitled to qualified immunity. Ultimately, the district court

dismissed all of the federal claims against all defendants 3 and declined to exercise

supplemental jurisdiction over the state law claims. As to the deliberate

indifference claims, the district court determined that Mrs. Pichardo did not state a

cause of action because Nurse Harris and Dr. Rodriguez-Garcia did not have “the


       2
         Although Mrs. Pichardo’s husband, Cesar Cristobal Veloz Tiburcio, brought a state law
claim for loss of consortium against the defendants and his name is on the notice of appeal, the
briefs on appeal do not address his claim. At oral argument, Mrs. Pichardo’s counsel explained
that Mr. Veloz does not challenge on appeal the district court’s dismissal of his loss of
consortium claim.
       3
       Plaintiff Mrs. Pichardo sued more than ten other defendants, but Nurse Harris and
Dr. Rodriguez-Garcia are the only defendants in this appeal.
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subjective knowledge required to state claims of deliberate indifference.” Because

Mrs. Pichardo did not show Nurse Harris and Dr. Rodriguez-Garcia violated a

constitutional right, the district court concluded that both were entitled to qualified

immunity.

      Mrs. Pichardo timely appealed.

                          III. STANDARD OF REVIEW

      The district court’s Rule 12(b)(6) dismissal is subject to plenary review.

Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir. 2016). To survive a motion to

dismiss, the complaint must have set out facts sufficient to “raise a right to relief

above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127

S. Ct. 1955, 1965 (2007). This means Mrs. Pichardo must have alleged “factual

content that allow[ed] the court to draw the reasonable inference that the

defendant[s] [were] liable for the misconduct.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S. Ct. 1937, 1949 (2009). “The allegations must be plausible, but

plausibility is not probability.” Lane, 835 F.3d at 1305.

                                 IV. DISCUSSION

   A. Qualified Immunity

      Nurse Harris and Dr. Rodriguez-Garcia maintain that they are entitled to the

protections of qualified immunity. To receive qualified immunity, a public official

must first prove that he was acting within the scope of his discretionary authority


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when the allegedly wrongful acts occurred. Lee v. Ferraro, 284 F.3d 1188, 1194

(11th Cir. 2002). Mrs. Pichardo does not dispute that Nurse Harris and Dr.

Rodriguez-Garcia were acting “within the scope of [their] discretionary authority,”

so she bears the burden of showing that the defendants are not entitled to qualified

immunity. Perez v. Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016).

      To meet this burden, Mrs. Pichardo must establish both that: “(1) the

defendants violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Caldwell v. Warden, FCI Talladega, 748 F.3d

1090, 1099 (11th Cir. 2014) (internal quotations omitted). We address these issues

in turn below.

   B. Violation of a Constitutional Right

      We first consider whether, taken in the light most favorable to Mrs.

Pichardo, the facts alleged in the second amended complaint show that Nurse

Harris’s and Dr. Rodriguez-Garcia’s conduct violated a constitutional right. As a

pretrial detainee, Mrs. Pichardo’s rights “exist 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). Nonetheless, “the standards under the




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Fourteenth Amendment are identical to those under the Eighth.” Goebert v. Lee

Cty., 510 F.3d 1312, 1326 (11th Cir. 2007). 4

       The Eighth Amendment “imposes [a] dut[y] on [prison] officials” to “take

reasonable measures to guarantee the safety of the inmates.” Farmer v. Brennan,

511 U.S. 825, 832, 114 S. Ct. 1970, 1976 (1994) (internal quotations omitted). In

particular, under the Eighth Amendment, prison officials have a duty to protect

prisoners from violence at the hands of other prisoners. Id. at 833, 114 S. Ct. at

1976. “It is not, however, every injury suffered by one prisoner at the hands of

another that translates into constitutional liability for prison officials responsible

for the victim’s safety.” Id. at 834, 114 S. Ct. at 1977.

       A prison official violates the Eighth Amendment “only when a substantial

risk of serious harm, of which the official is subjectively aware, exists and the

official does not respond reasonably to the risk.” Bowen v. Warden Baldwin State

Prison, 826 F.3d 1312, 1320 (11th Cir. 2016) (internal quotations omitted). To

state an Eighth Amendment claim of deliberate indifference, a plaintiff must allege

facts sufficient to show (1) that she was subjected to a “substantial risk of serious

harm,” (2) the defendants’ deliberate indifference to that risk, and (3) causation.




       4
         Because all parties refer to Mrs. Pichardo’s claims as Eighth Amendment claims, we do
too for purposes of this opinion.
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Purcell ex rel. Estate of Morgan v. Toombs Cty., 400 F.3d 1313, 1319 (11th Cir.

2005).

      The first element—a substantial risk of serious harm—is assessed under an

objective standard. Caldwell, 748 F.3d at 1099. Because Mrs. Pichardo’s alleged

risk of serious harm has to do with the jail’s environment, her case falls into the

“conditions of confinement” category of deliberate-indifference cases as opposed

to the medical treatment category. See generally Rhodes v. Chapman, 452 U.S.

337, 101 S. Ct. 2392 (1981) (conditions of confinement); Estelle v. Gamble, 429

U.S. 97, 97 S. Ct. 285 (1976) (medical treatment). In this context, Mrs. Pichardo

must allege that the confinement condition she complains of was sufficiently

serious to violate the Eighth Amendment. See Chandler v. Crosby, 379 F.3d 1278,

1289 (11th Cir. 2004). We have explained that “[w]hile an inmate need not await a

tragic event before seeking relief, [s]he must at the very least show that a condition

of [her] confinement pose[d] an unreasonable risk of serious damage to h[er] future

health or safety.” Id. (internal quotations and citations omitted).

      In this particular case, no party disputes that placing a female in the general

population of a male detention facility created an extreme condition and posed an

unreasonable risk of serious harm to the female’s future health or safety. Nor

should they dispute this. It is abundantly clear to us that housing a biological

female alongside 40 male inmates poses an outrageous risk that she will be


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harassed, assaulted, raped, or even murdered. See Purcell, 400 F.3d at 1320

(explaining that a prisoner has a right, secured by the Eighth Amendment, to be

“reasonably protected from constant threat of violence and sexual assault” by her

fellow inmates). After all, female and male inmates are not housed together in

prisons because this risk is not only self-evident, but serious and real.

      The parties also do not dispute that Mrs. Pichardo sufficiently alleged the

third element, causation. It is the second element of an Eighth Amendment

claim—the defendants’ deliberate indifference to a substantial risk of serious

harm—that forms the crux of the matter at hand. Specifically, both Nurse Harris

and Dr. Rodriguez-Garcia primarily argue that they cannot be liable under the

Eighth Amendment because Mrs. Pichardo (1) did not allege that they had the

required actual, subjective knowledge that she was a woman, and (2) then

knowingly disregarded the risk associated with wrongfully reclassifying her as a

male. We disagree.

      To satisfy the second deliberate indifference element, a plaintiff must

sufficiently allege that the defendant actually (subjectively) knew that an inmate

faced a substantial risk of serious harm. Caldwell, 748 F.3d at 1099–1100. The

Supreme Court in Farmer held that the prison “official must both be aware of facts

from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Farmer, 511 U.S. at 837, 114 S. Ct.


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at 1979. This requirement of subjective culpability means that it is not enough for

a plaintiff to merely establish that “a reasonable person would have known, or that

the defendant should have known” of a substantial risk of serious harm. Id. at 843

n.8, 114 S. Ct. at 1982 n.8.

      It is true that the defendants must have had actual, subjective knowledge that

Mrs. Pichardo was a female. However, even under this subjective standard, a

prison official cannot hide behind an excuse that he was unaware of a fact or risk if

that fact or risk would have been obvious to anyone. Id. at 842–43, 114 S. Ct. at

1981–82. This is because the subjective standard can be proven with

circumstantial evidence:

      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 a risk was obvious.

Id. at 842, 114 S. Ct. at 1982 (citations omitted). In addition, a prison official’s

subjective knowledge can be proven through circumstantial evidence showing that,

for example, the substantial risk was “longstanding, pervasive, well-documented,

or expressly noted by prison officials in the past, and the circumstances suggest

that the defendant-official being sued had been exposed to information concerning

the risk and thus ‘must have known’ about it.” Id. at 842–43, 114 S. Ct. at 1981–

82 (internal quotations omitted).


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      Importantly to this case, while a prison official may show that the

obviousness of a risk escaped him, he cannot escape liability “if the evidence

show[s] that he merely refused to verify underlying facts that he strongly suspected

to be true, or declined to confirm inferences of risk that he strongly suspected to

exist.” Id. at 843 n.8, 114 S. Ct. at 1982 n.8 (emphasis added); see also Goebert,

510 F.3d at 1328 (“Choosing to deliberately disregard, without any investigation or

inquiry, everything any inmate says amounts to willful blindness.”).

      With these principles in mind and viewing the allegations in a light most

favorable to Mrs. Pichardo, we conclude that the extensive facts alleged in the

second amended complaint give rise to the inference that, at a minimum, Nurse

Harris and Dr. Rodriguez-Garcia “strongly suspected” that Mrs. Pichardo was a

female but “refused to verify the underlying facts” that would prove her female

gender to be true. They then (1) deliberately reclassified Mrs. Pichardo’s gender as

male, in the face of the contrary evidence that she was a woman, and (2) knew that

reclassifying her as male would send her to the male jail population where her

safety and life would be at risk. This amounts to deliberate indifference under

Farmer. 511 U.S. at 843 n.8, 114 S. Ct. at 1982 n.8.

      To begin with, Mrs. Pichardo appeared to be a woman. Both Officers

Audrey Mormon and Kimberly Jones interacted with Mrs. Pichardo and said that

she appeared to be female. And during initial booking, a female officer, who was


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responsible for determining Mrs. Pichardo’s gender, strip searched Mrs. Pichardo

and determined that she was a woman. If Mrs. Pichardo had a penis and testicles,

the officer would have discovered them during the strip search. But she did not.

Instead, the female officer looked at Mrs. Pichardo’s entire body and “did not

notice anything abnormal.”

      That Mrs. Pichardo was a woman was also well-documented and expressly

noted by prison officials. First, Mrs. Pichardo’s arrest warrant said she was

female. As for prison records, Mrs. Pichardo was classified as female at booking

and housed with the female inmates. Her file specifically reported that she was

female, that she had been strip searched at intake, and that she was taking hormone

replacement therapy for menopause. In turn, both Nurse Harris and Dr. Rodriguez-

Garcia reviewed Mrs. Pichardo’s medical file before seeing her, which listed her

sex as female. Both medical personnel also noticed that Mrs. Pichardo was taking

hormone replacement pills, which they knew women take to treat menopause

symptoms.

      As to Nurse Harris specifically, the circumstances show that Nurse Harris

was exposed to consistent and repeated information that Mrs. Pichardo was a

woman. First, Mrs. Pichardo told the nurse that she was a woman and had all of

her “female parts.” Officer Audrey Morman repeatedly informed Nurse Harris that

Mrs. Pichardo was a woman and reminded her that she had been strip searched at


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booking and classified as female. Similarly, Officer Kimberly Jones asked Nurse

Harris no fewer than three times if she had strip searched or physically examined

Mrs. Pichardo before claiming that she was a man because the officer was

concerned Mrs. Pichardo was a woman.

      Nevertheless, in the face of all of this evidence that Mrs. Pichardo was

female, Nurse Harris refused to physically examine Mrs. Pichardo or to ask

Dr. Rodriguez-Garcia to physically examine her before reclassifying her as a man.

Not only did she stubbornly refuse to confirm Mrs. Pichardo’s sex, she

intentionally lied to Officer Morman about it, indicating to the officer that Mrs.

Pichardo had a penis and testicles. In response to this lie, Officer Morman again

told Nurse Harris that Mrs. Pichardo looked like a woman.

      Further, Nurse Harris refused even to engage with Officer Jones’s multiple

questions about whether Mrs. Pichardo had been strip searched to see if she was

male. Instead, Nurse Harris simply said “she’s a man” and walked away. Nurse

Harris then filled out a health services incident addendum that identified Mrs.

Pichardo as “[t]ransgender, male parts, female tendencies” despite knowing that

reclassifying Mrs. Pichardo as male would send her to the male population where

her safety and life would be at risk. These allegations state a plausible claim of

deliberate indifference.




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      As to Dr. Rodriguez-Garcia, the factual circumstances also show that he too

had clear information that Mrs. Pichardo was a woman. Prior to seeing Mrs.

Pichardo, he reviewed her pre-screening medical documentation, which noted that

she was “Menopause Medical” and taking hormone replacement pills. Thus,

medical records expressly showed that Mrs. Pichardo’s hormone replacement

therapy was related to menopause and not to gender transitioning. Further, Mrs.

Pichardo came to the medical unit due to her history of high blood pressure. No

one sent her there for a gender evaluation. And of course when she arrived in the

medical unit, she was wearing the orange uniform that female inmates wear.

      Nevertheless, Dr. Rodriguez-Garcia took it upon himself to reclassify her

biological sex without physically examining her. Indeed, Mrs. Pichardo’s file

clearly reported that she had been strip searched during booking and classified as

female. This is why Mrs. Pichardo was booked in the female jail in the first place.

      Moreover, like Nurse Harris, Dr. Rodriguez-Garcia knew that sending a

woman to an all-male prison would pose a risk of serious harm to her safety,

however, he took no steps at all to verify Mrs. Pichardo’s sex before reclassifying

her as male. First, Dr. Rodriguez-Garcia did not physically examine Mrs. Pichardo

undressed or conduct a strip search, which he knew was the proper procedure for

determining an inmate’s sex. He also did not ask her if she was male, female, or




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transgender. And he intentionally did not ask her why she was taking hormone

replacement pills and explained later that it was “a difficult question to ask.”

      What he did ask Mrs. Pichardo was “in a general sense if she had all [of her]

‘sex parts.’” But the answer to that question did not tell Dr. Rodriguez-Garcia

anything about whether Mrs. Pichardo was a man or a woman. These allegations

support a reasonable inference that despite his assumption otherwise,

Dr. Rodriguez-Garcia “strongly suspected” that Mrs. Pichardo was in fact female

and “refused to verify underlying facts” that would prove her female gender to be

true. See Farmer, 511 U.S. at 843 n.8, 114 S. Ct. at 1982 n.8.

      Here, Nurse Harris’s and Dr. Rodriguez-Garcia’s choosing to deliberately

disregard the wealth of information that Mrs. Pichardo was female—the fact that

she was strip searched, booked as female, and appeared to be female—and

reclassifying her as male without any investigation or physical exam is sufficient to

show that they “refused to verify underlying facts that [they] strongly suspected to

be true, or declined to confirm inferences of risk that [they] strongly suspected to

exist.” Id. Accordingly, Mrs. Pichardo’s allegations state a plausible § 1983 claim

of deliberate indifference against Nurse Harris and Dr. Rodriguez-Garcia sufficient

to survive a motion to dismiss. The district court erred in concluding otherwise.

   C. Clearly Established Law




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      Having determined that Mrs. Pichardo plausibly alleged that Nurse Harris’s

and Dr. Rodriguez-Garcia’s conduct violated the Eighth Amendment, we turn to

“whether the Eighth Amendment right at issue ‘was clearly established such that a

reasonable [prison] official would understand what he [or she] is doing violates

that right.’” Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015) (quoting

Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc)).

      To determine whether a right is clearly established, we ask whether it would

be clear to a reasonable prison official that his or her conduct was unlawful in the

situation confronted. See Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002)

(recognizing that “fair and clear notice” is the cornerstone of the qualified

immunity analysis). There are several ways to assess whether a right is clearly

established. See id. at 1350–53. First, the plaintiff can point to a materially similar

case decided at the time of the relevant conduct by the Supreme Court, the

Eleventh Circuit, or the relevant state supreme court. See J W ex rel. Tammy

Williams v. Birmingham Bd. of Educ., 904 F.3d 1248, 1259–60 (11th Cir. 2018).

“Second, the plaintiff can identify a broader, clearly established principle that

should govern the novel facts of the situation.” Id. Third, even in the absence of

factually similar case law, prison officials can have fair warning that their conduct

is unconstitutional when the constitutional violation is obvious, sometimes referred




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to as “obvious clarity” cases. See United States v. Lanier, 520 U.S. 259, 271, 117

S. Ct. 1219, 1227 (1997); Vinyard, 311 F.3d at 1350–51.

      We conclude that at the time of this incident in 2013, every reasonable

prison officer and medical personnel would have known that wrongfully

misclassifying a biological female as a male inmate and placing that female in the

male population of a detention facility was unlawful. The conduct at issue here

lies so obviously at the very core of what the Eighth Amendment prohibits, that the

unlawfulness of placing a female detainee within the male population was readily

apparent to any prison officer or medical personnel in the shoes of Nurse Harris

and Dr. Rodriguez-Garcia. Accordingly, neither is entitled to qualified immunity.

                                 V. CONCLUSION

      For the foregoing reasons, we conclude that Mrs. Pichardo may proceed with

her § 1983 deliberate indifference claims against Nurse Harris and Dr. Rodriguez-

Garcia. We therefore reverse the district court’s order as it relates to the federal

claims against Nurse Harris and Dr. Rodriguez-Garcia and remand for further

proceedings consistent with this opinion.

      REVERSED IN PART AND REMANDED.




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