In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-1163 & 99-1823

Brian Zentmyer,

Plaintiff-Appellant,

v.

Kendall County, Illinois, Richard Randall,
Sheriff of Kendall County, Deputy Hawkins,
Deputy Gawne, Deputy Hetzel, Deputy Flowers,
Deputy Pfister, Deputy Walton, Deputy Howe,
Deputy Blank and Deputy Klebba,

Defendants-Appellees.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 2831--David H. Coar, Judge.


Argued January 4, 2000--Decided June 13, 2000



  Before Cudahy, Kanne and Diane P. Wood, Circuit
Judges.

  Kanne, Circuit Judge. While incarcerated as a
pretrial detainee at the Kendall County jail,
Brian Zentmyer contracted an ear infection that
he claims led ultimately to permanent hearing
loss in his right ear. Zentmyer brought suit
under 42 U.S.C. sec. 1983 against his jailers
claiming that they violated his Fourteenth
Amendment rights and displayed deliberate
indifference to his health in treating his
infection. Namely, Zentmyer cites the jail
deputies’ failure to administer prescription
antibiotics to him on a number of occasions. We
affirm summary judgment in favor of the
defendants and hold that the defendants’ actions
fell short of the deliberate indifference
standard for liability under the Fourteenth
Amendment.

I.  History
  Each morning at the Kendall County jail,
deputies check each inmate for medical complaints
and register any complaints on a sick call form.
Deputies forward emergency complaints directly to
the commanding officer, who then decides whether
to summon a doctor for immediate care. Routine
complaints are recorded for the attention of the
jail nurse, who visits twice weekly. If
necessary, the nurse may transfer an ailing
inmate to a nearby medical facility, request a
doctor’s visit or order non-prescription
medication for the inmate. As required, deputies
dispense medication to inmates in accordance with
the nurse’s or doctor’s orders. No particular
deputy is designated to give medication to
inmates, but instead any deputy on duty at the
time is authorized to administer medication as
scheduled in the shift log. Jail officials record
each inmate complaint, medical examination and
administration of medication.

  After arresting him for residential burglary,
Kendall County police booked Brian Zentmyer into
the Kendall County jail as a pretrial detainee on
January 22, 1995. Three months later, during the
evening of April 18, 1995, Zentmyer complained to
Deputy Dave Gawne that he had an earache.
Observing no ear discharge, swelling or signs of
emergency, Gawne suggested that Zentmyer go on
sick call the next morning and reported
Zentmyer’s complaint in the shift log, advising
the subsequent deputy on duty to notify the
nurse. The next morning, Zentmyer followed
Gawne’s instruction by asking Deputy Jim Hetzel
to place him on sick call and call the nurse.
According to jail officials, however, several
deputies miscommunicated over the radio, and as
a result, Zentmyer was not placed on sick call
and did not see Nurse Marlis Schumacher that day.
Zentmyer complained to Deputies Chris Pfister and
Rick Flowers later that afternoon, but Pfister
apologized that the nurse had already left the
jail. Pfister gave painkilling medication to
Zentmyer and wrote in the shift log that the
nurse should examine Zentmyer during her next
visit.

  On April 20, 1995, Zentmyer again complained to
Hetzel, but the nurse had taken a vacation day
and was unavailable. The next morning, Zentmyer
voiced no complaint when Deputy Tim Walker
surveyed the inmates for medical care. However,
later that day, Zentmyer told Deputy Charles
Walton that he was in pain and asked to see a
doctor. Walton checked with Sergeant James Howe
who, after consulting Commander Michael Hawkins,
ordered the next shift’s deputies to take
Zentmyer to the local hospital. Around 10 a.m. on
April 22, 1995, Hetzel accompanied Zentmyer to
the emergency room of the Sandwich Community
Hospital.

  Dr. Deenadayal Gaddam noticed inflammation in
Zentmyer’s right ear but did not see any
swelling, discharge, boils, blockage or other
signs of injury. Zentmyer reported no hearing
loss and exhibited no signs of inner-ear
infection. Gaddam diagnosed Zentmyer as suffering
only from otitis externa and otitis media,
infections of the outer and middle ear. Gaddam
later testified that Zentmyer’s condition, if
left untreated over time, could have cleared up
by itself but might instead have worsened and led
potentially to hearing loss. Gaddam prescribed
the oral antibiotic Amoxicillin for the middle-
ear infection, to be taken once every eight hours
for ten days (eleven days counting the day of
prescription), and the antibiotic eardrop Otocort
for the outer-ear infection, four drops to be
administered to the ear four times daily until
the bottle was empty. Gaddam also directed
Zentmyer to see a physician in two weeks and take
Tylenol for pain or fever. Hetzel and Zentmyer
returned to the jail by 11 a.m., less than an
hour later.

  Gaddam testified later that Amoxicillin must be
taken consistently to be effective, but
acknowledged that the ear infection would have
been treated so long as Zentmyer ingested all
thirty pills of Amoxicillin in the days following
the prescription, even if not taken every eight
hours. Zentmyer received the prescribed dose of
Amoxicillin on seven of the eleven days/1
following the hospital visit and eventually took
the entire thirty-pill bottle of Amoxicillin.
Gaddam also testified that three applications of
Otocort a day would be sufficient for treatment
because doctors "prescribe four times hoping
[their patients] will take it three times."
Zentmyer received the prescribed doses of Otocort
on seven of twenty days following his hospital
visit, and received at least three doses on four
of the remaining thirteen days during that
period. Each day, Zentmyer received at least two
painkillers a day in addition to his prescription
medication.

  Realizing that he was not taking his medication
exactly according to prescription, Zentmyer
complained to Deputy Pfister on April 27, 1995,
and warned that he would sue if he did not
receive his medication on schedule. According to
Pfister, Zentmyer became "frustrated, seemed
upset and started pacing back and forth." Pfister
told him to let the guards know if he needed
medical attention, but Zentmyer responded that it
was the duty of the deputies to administer
medication and his lawyer had advised him not to
ask the deputies for medication. As he had been
trained, Pfister instructed Zentmyer to address
him as "Deputy Pfister" and told Zentmyer that he
would be placed in isolation if he kept
complaining. When Zentmyer remained agitated,
Pfister decided to "[l]et him vent" because
"[a]ll inmates vent" and Pfister "didn’t feel
that [Zentmyer] needed disciplinary action."
Zentmyer continued venting and threatened, "You
just wait, I’m going to get you in court."
Indeed, Zentmyer’s lawyer had already contacted
Commander Hawkins to protest Zentmyer’s
treatment. As a result, Hawkins investigated by
questioning Deputies Pfister, Hetzel and Tara
Lamons, but each answered that Zentmyer was
receiving medication as prescribed.

  Zentmyer also complained about his ear to
Flowers on April 26, 1995, to Gawne on May 1,
1995, and to Deputy Sabrina Forman on May 2 and
3, 1995. On May 3, 1995, Nurse Schumacher
examined Zentmyer, who complained of an earache,
headache and bleeding from the ear. Schumacher
noticed no bleeding but found yellow drainage in
Zentmyer’s right ear, so she scheduled a visit by
Dr. Jose Trevino for two days later. Trevino
found that the middle-ear infection had healed,
but diagnosed Zentmyer as still suffering from an
outer-ear infection and prescribed the
antibiotics Biaxin and Elocon, each to be taken
twice daily.

  From May 6 to May 11, 1995, jail deputies
administered the prescribed amounts of Biaxin and
Elocon on five of six days./2 On May 11, 1995,
Zentmyer transferred to the Kane County jail for
temporary detainment until a May 16 transfer to
a State of Illinois prison. During medical
screening, Zentmyer did not report any hearing
loss, but the Kane County jail doctor noted
Zentmyer’s outer-ear infection and recommended
that he continue his medication.

  Three months later, on August 9, 1995, Dr.
Perry Santos examined Zentmyer’s right ear after
Zentmyer complained again of pain. In his report,
Santos observed that "[t]here is an excoriated
area" in the right ear "most consistent with a
fingernail scratch." He found "no inflammation or
erythema or evidence of acute infection as well
as no evidence of chronic infection." Santos
explained that there was no evidence of active
outer-ear infection but there could be tenderness
associated with a recently healed infection. On
February 15, 1996, Dr. L. El-Diery examined
Zentmyer and detected no perforation of the
eardrum but noticed some ear trauma that he
suspected was caused by "manipulation of the
external ear canal with the placement of foreign
bodies by the inmate."

  On April 15, 1996, Zentmyer was examined yet
again, this time by Dr. Robert Kramer who
declared Zentmyer’s ear "absolutely normal" with
no evidence of infection. Nonetheless, Zentmyer
continued to report pain and hearing loss. On
Kramer’s request, audiologist Kathy Betestini
tested Zentmyer’s hearing with a standard
audiogram and found that Zentmyer reported no
hearing at all in his right ear. Two years later,
audiologist David Lewis performed another
audiogram on Zentmyer and also found that
Zentmyer reported no hearing in his right ear.
However, suspicious of Zentmyer’s responses,
Lewis conducted a second hearing test which "did
not reveal that [Zentmyer’s hearing] is as bad as
Mr. Zentmyer is claiming."

  On April 22, 1997, Zentmyer sued the defendants
in district court under 42 U.S.C. sec. 1983
claiming that he was denied adequate medical care
in violation of his Eighth and Fourteenth
Amendment rights. Zentmyer argued that as a
result of the defendants’ deliberate indifference
to administering his medication properly, the
medication was rendered "useless" and he
sustained a "totally dead" right ear. The
district court immediately dismissed Zentmyer’s
Eighth Amendment claims, and on December 22,
1998, granted the defendants’ motion for summary
judgment on Zentmyer’s Fourteenth Amendment
claims.

II.   Analysis

  The Eighth Amendment proscription on the
infliction of cruel and unusual punishment
requires that the government "provide humane
conditions of confinement" and "ensure that
inmates receive adequate food, clothing, shelter,
and medical care." Farmer v. Brennan, 511 U.S.
825, 832 (1994). Among other things, these
principles prohibit jail guards from
"intentionally denying or delaying access to
medical care or intentionally interfering with
the treatment once prescribed." Estelle v.
Gamble, 429 U.S. 97, 104-05 (1976).

  However, liability results only when the
defendant exhibits "deliberate indifference to
serious medical needs." Id. at 104; see also
Henderson v. Sheahan, 196 F.3d 839, 844 (7th Cir.
1999). In Farmer, the Supreme Court explained
that an inmate must satisfy a two-prong test to
establish an Eighth Amendment claim: (1) the
deprivation alleged must be objectively serious;
(2) the prison official must have exhibited
deliberate indifference to the inmate’s health or
safety. Farmer, 511 U.S. at 834. Although the
Eighth Amendment does not extend to pretrial
detainees like Zentmyer, the Due Process Clause
of the Fourteenth Amendment protects pretrial
detainees under the same standard as the Eighth
Amendment. See Henderson, 196 F.3d at 844 n.2;
Payne v. Churchich, 161 F.3d 1030, 1041 (7th Cir.
1998). Zentmyer appeals summary judgment on his
Fourteenth Amendment claim "as to the individual
deputies in their individual capacities" and
argues that the defendants’ failure to administer
medication exactly as prescribed constituted
deliberate indifference to serious medical needs.
We review de novo the district court’s grant of
summary judgment and draw all reasonable and
justifiable inferences in favor of the non-moving
party Zentmyer. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); see also Reed v.
McBride, 178 F.3d 849, 852 (7th Cir. 1999).

  An objectively serious medical need is "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." Gutierrez v.
Peters, 111 F.3d 1364, 1373 (7th Cir. 1997)
(citation and internal quotation omitted).
Failure to "dispense bromides for the sniffles or
minor aches and pains or a tiny scratch or a mild
headache or minor fatigue--the sorts of ailments
for which many people who are not in prison do
not seek medical attention--does not . . .
violate the Constitution." Cooper v. Casey, 97
F.3d 914, 916 (7th Cir. 1996). Although an ear
infection is a common malady that typically
causes no permanent impairment, Zentmyer’s
condition inflicted prolonged suffering and
required treatment from a nurse and two doctors
who prescribed painkillers and antibiotics for
almost a month. Zentmyer also adduced evidence
and expert testimony indicating that the
infections lingered for months afterward and led
eventually to a permanent loss of hearing.
Defendants cite credible evidence that Zentmyer’s
ear infection was mild at worst and that Zentmyer
actually did not sustain hearing loss. However,
resolving all factual ambiguities in his favor,
we agree that Zentmyer raised a material question
of fact whether he suffered from an objectively
serious medical condition.

  To overturn summary judgment, Zentmyer also must
demonstrate a genuine question of fact whether
the defendants were deliberately indifferent to
his medical condition. The Court explained in
Farmer that "deliberate indifference entails
something more than mere negligence." Farmer, 511
U.S. at 836; see also Pope v. Shafer, 86 F.3d 90,
92 (7th Cir. 1996); Williams v. O’Leary, 55 F.3d
320, 324 (7th Cir. 1995); Giron v. Corrections
Corp. of Am., 191 F.3d 1281, 1286 (10th Cir.
1999). For example, in Steele v. Choi, 82 F.3d
175, 178 (7th Cir. 1996), a prison doctor was not
deliberately indifferent, even assuming that a
minimally competent doctor would have been able
to identify and treat the plaintiff’s injury
under the circumstances, because he was not
subjectively aware of the plaintiff’s medical
needs. Under this standard, "a prison official
cannot be found liable . . . for denying an
inmate humane conditions of confinement unless
the official knows of and disregards an excessive
risk to inmate health or safety; the 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.

  Zentmyer cites the Court’s prohibition in
Estelle on "intentionally interfering with the
treatment once prescribed," Estelle, 429 U.S. at
105, and claims that the deputies are liable
because they collectively did not follow the
doctors’ orders in dispensing his medication.
Zentmyer points out that in total he missed five
pills of Amoxicillin out of thirty pills
prescribed over eleven days; twenty-six
applications of Otocort out of eighty
applications prescribed over twenty days; and one
dose each of Biaxin and Elocon out of ten doses
prescribed for each over six days.

  However, Zentmyer does not contend that any of
the deputies named as defendants knew that
Zentmyer might suffer serious injury or pain from
the missing doses of medication. In fact, there
is no evidence that any deputy thought missing
doses of medication for an ear infection would
cause a serious injury or loss of hearing. The
doctors did not communicate to the deputies that
the medication must be constantly applied or else
be rendered useless, and Zentmyer admits that
none of the defendants noticed any pus, discharge
or other physical signs of injury from his ear
infection. A string of negligent acts can
evidence a plaintiff’s exposure to a serious risk
and a prison official’s awareness of such
exposure, but "showing deliberate indifference
through a pattern of neglect entails a heavy
burden." Dunigan ex rel. Nyman v. Winnebago
County, 165 F.3d 587, 591 (7th Cir. 1999).
Furthermore, liability under sec. 1983 arises
only when the plaintiff can show that the
defendant was "personally responsible for a
deprivation of a constitutional right." Vance v.
Peters, 97 F.3d 987, 992 (7th Cir. 1996).
Zentmyer does not present evidence that any
individual defendant failed to administer so many
doses that the defendant’s actions by themselves
instantiate deliberate indifference, nor does
Zentmyer allege any agreement among the
defendants to deprive him of medical care.
Instead, Zentmyer argues that he missed some
medication and the deputies collectively were
responsible for administering it.

  The deputies’ failure to dispense Zentmyer’s
medication consistently on schedule does not
manifest conscious disregard for Zentmyer’s
health. They responded to Zentmyer’s complaints
and administered most of his medication according
to schedule. The deputies gave him painkillers at
least twice a day for twenty days and
administered 97 of 130 doses of prescription
medication on schedule as prescribed. In total,
the deputies administered medication of various
forms to Zentmyer 162 times over twenty days from
April 22 to May 11, 1995. Zentmyer was treated by
medical professionals and received antibiotics
and painkillers regularly for a month. Indeed,
Dr. Trevino concluded that Zentmyer’s middle-ear
infection had healed promptly under the deputies’
care. Based on the record before us, each of
several jail guards failed occasionally to
administer doses of medicine without knowledge
that serious consequences might result from their
lack of diligence in treating an earache. Failing
to dispense medication exactly as prescribed may
constitute negligence, see Jones v. United
States, 91 F.3d 623, 625 (3d Cir. 1996), but "the
presence of multiple acts of negligence is merely
evidentiary; it is not an alternative theory of
liability." Sellers v. Henman, 41 F.3d 1100, 1103
(7th Cir. 1994). Given that the deputies knew
only that Zentmyer suffered from an ear
infection, the deputies were not so neglectful
that deliberate indifference is apparent under
the facts alleged. See Mahan v. Plymouth County
House of Corrections, 64 F.3d 14, 18 (1st Cir.
1995) (finding that failure to administer
prescription medication did not constitute
deliberate indifference absent evidence that
prison officials knew the plaintiff would suffer
serious medical consequences without medication).

  This is not to say that prison officials may
substitute their judgments for a medical
professional’s prescription. Of course they
cannot. See Ralston v. McGovern, 167 F.3d 1160,
1162 (7th Cir. 1999); Johnson v. Hay, 931 F.2d
456, 461 (8th Cir. 1991). If a defendant
consciously chose to disregard a nurse or
doctor’s directions in the face of medical risks,
then he may well have exhibited the necessary
deliberate indifference. But deliberate
indifference is an onerous standard for the
plaintiff, and forgetting doses of medicine,
however incompetent, is not enough to meet it
here. Zentmyer cites several cases from other
circuits decided before Estelle and Farmer
finding that denial of prescribed medication,
when combined with other privations, violated a
prisoner’s substantive due process rights. None
of these cases hold that failure to administer
medication exactly as prescribed without
additional exacerbating hardships violates the
Eighth or Fourteenth Amendment. See Campbell v.
Beto, 460 F.2d 765 (5th Cir. 1972); Martinez v.
Mancusi, 443 F.2d 921 (2d Cir. 1970); Tolbert v.
Eyman, 434 F.2d 625 (9th Cir. 1970); Edwards v.
Duncan, 355 F.2d 993 (4th Cir. 1966).

  Lastly, the district court properly granted
summary judgment for Commander Hawkins on
Zentmyer’s Fourteenth Amendment claim. For
liability, a supervisor "must know about the
conduct and facilitate it, approve it, condone
it, or turn a blind eye," so Hawkins can be
liable as a supervisor only if Zentmyer
demonstrates that constitutionally deficient
medical care occurred at Hawkins’s direction or
with his knowledge and consent. Gentry v.
Duckworth, 65 F.3d 555, 561 (7th Cir. 1995).
Zentmyer’s attorney telephoned Hawkins about
Zentmyer’s earache and treatment, but Hawkins
investigated the complaint and was told by three
deputies that Zentmyer was receiving medication
as prescribed. Under the circumstances, Hawkins
reasonably believed his deputies’ reports and
otherwise had no involvement with Zentmyer’s
medical care.


III.   Conclusion

  For the foregoing reasons, we Affirm the decision
of the district court granting the defendants’
motion for summary judgment.



/1 Zentmyer took three pills of Amoxicillin a day on
six days. Gaddam prescribed Amoxicillin and
Otocort around midday on April 22, so Zentmyer
received only two pills of Amoxicillin and only
three applications of Otocort during the
remaining half day. Similarly, Zentmyer received
only one application of Otocort before his midday
departure from the jail on May 11.


/2 Zentmyer received one dose of each on May 6 after
his 4:20 p.m. appointment with Trevino and one
dose of each on May 11 before his midday
discharge from the jail. Zentmyer received the
prescribed two doses of both Biaxin and Elocon on
all the remaining days except May 7, when he
received only one dose of each.




  Diane P. Wood, Circuit Judge, concurring in part
and dissenting in part. I agree that the district
court correctly dismissed Brian Zentmyer’s sec.
1983 action with respect to all of the defendants
except Deputy Chris Pfister. With respect to him,
however, I find disputed issues of fact that
require this case to proceed to trial. I
therefore dissent with respect to the disposition
of that single claim.

  Construing the record in favor of Zentmyer, as
we must on this review of summary judgment, I
agree with the majority that Zentmyer raised a
material question of fact as to whether he
suffered a serious medical need. Two doctors, Dr.
Gaddam and Dr. Kramer, testified that Zentmyer’s
ear infection could cause permanent hearing loss
if improperly treated. Both doctors also offered
the medical opinion that antibiotics must be
administered on time to be effective (Dr. Gaddam
stated specifically that the medication had to be
given within two hours of the prescribed time).

  The next question, as the majority notes, is
whether Zentmyer raised a material issue of fact
with respect to the deliberate indifference of
any or all of the defendants. Here I part company
with them. It is true that it will not be easy
for Zentmyer to convince a trier of fact that
Deputy Pfister displayed deliberate indifference
to his serious medical need. He will have to
prove that Pfister was aware that substantial
harm could result from failing to administer the
medication correctly, and that he then
purposefully did not give it to Zentmyer
according to schedule. See Steele v. Choi, 82
F.3d 175, 178 (7th Cir. 1996) (internal citations
omitted). What Zentmyer does not have to do is
produce a direct admission of deliberate
indifference from Pfister. As is true for
everything else in the case, circumstantial
evidence may also be used to prove that the
defendant was aware of the substantial risk to
Zentmyer’s health and deliberately disregarded
that risk. See Vance v. Peters, 97 F.3d 987, 992
(7th Cir. 1996).

  Zentmyer offered evidence that Pfister knew that
on April 22, 1995, Dr. Gaddam prescribed
antibiotics which Zentmyer was to take three
times daily (Amoxicillin) and four times daily
(Otocort). Jail records show clearly that the
officials did not administer the medication
according to the prescription. Zentmyer also
offered evidence that the deputies (including
Pfister) knew that as of May 5, 1995, the
infection had not cleared up, because that was
when Dr. Trevino prescribed Biaxin and Elocon
cream to be administered twice daily, and this
prescription too appeared on jail records. Again,
despite the fact that this was the second go-
round of antibiotic treatment, the medications
were not administered correctly. Pfister, when
questioned about his treatment of Zentmyer, said
that it was his policy to treat inmates as well
as they treated him, and that Zentmyer did not
treat him too well. Pfister then added that
"[Zentmyer] received a lot of medication. I have
a grandmother. I don’t think she’s taken this
much medication."

  It is true that a jury would be entitled to
find, based on this evidence, that "[t]he
deputies’ failure to dispense Zentmyer’s
medication consistently on schedule does not
manifest conscious disregard for Zentmyer’s
health." Ante at 10. We may not, however, resolve
that question of material fact at the summary
judgment stage. This is not a cut and dried
situation, where a record of perfectly good
treatment was followed by a few isolated
occurrences of neglect. See Gutierrez v. Peters,
111 F.3d 1364, 1374 (7th Cir. 1997). The record
shows that Zentmyer’s medication was distributed
arbitrarily from the beginning of his treatment.
This is also not a case devoid of evidence that
Pfister was aware of the risks posed by lack of
treatment. Two doctors prescribed antibiotics for
Zentmyer. Zentmyer continuously complained of
pain, and of not receiving his medication at the
prescribed times. Pfister admitted to what a
reasonable person might construe as a motive to
ignore Zentmyer’s plight, since he apparently
viewed Zentmyer as a hypochondriac and had
resolved to engage in some kind of tit-for-tat
treatment of Zentmyer (i.e. Zentmyer behaved
badly to him, and so he would behave badly to
Zentmyer). In the face of this evidence, the fact
that Pfister never noticed effusive bleeding or
pus in Zentmyer’s ear is not conclusive on the
question of deliberate indifference. HIV, heart
disease, and many other ailments are often not
visible to the human eye, and it was not up to
Pfister or any other deputy to second-guess the
doctors’ decisions about prescription medicine.

  These disputed issues of fact are enough to
allow Zentmyer’s claim against Pfister to go
forward. I respectfully dissent with respect to
the disposition of that claim, and I concur in
the remainder of the court’s opinion.
