                           NONPRECEDENTIAL DISPOSITION
                             To be cited only in accordance with
                                     Fed. R. App. P. 32.1




             United States Court of Appeals
                                    For the Seventh Circuit
                                    Chicago, Illinois 60604

                                   Argued November 9, 2009
                                   Decided February 16, 2010

                                             Before

                              TERENCE T. EVANS, Circuit Judge

                              DIANE S. SYKES, Circuit Judge

                              SAMUEL DER-YEGHIAYAN, District Judge *

Nos. 09-1895 and 09-2084

ESTATE OF TERRY GEE, JR.,                             Appeals from the United States District
Deceased, by Special Administrator,                   Court for the Southern District of Indiana,
Thomas Beeman,                                        Indianapolis Division.
                     Plaintiff-Appellee,
      v.                                              No. 1:06-CV-00094-WTL-TAB

JUDY JOHNSON, Captain, et al.,                        William T. Lawrence,
            Defendants-Appellants.                    Judge.


                                             ORDER

       Terry Gee developed pneumonia while being held as a pretrial detainee in the Monroe
County (Indiana) jail. He arrived at the jail on March 18, 2005. Thirteen days later, on
March 31, he was transferred to a hospital. He died at the hospital five days later on April 5.
The cause of death was “progressive respiratory failure related to adult respiratory distress
syndrome and perhaps fluid overload from renal failure.”

       Gee’s Estate brought suit under 42 U.S.C. §§ 1983 and 1988 against two sets of
defendants for failure to provide adequate medical care during Gee’s 13 days of incarceration

       *
           The Honorable Samuel Der-Yeghiayan, United States District Judge for the Northern
District of Illinois, sitting by designation.
Nos. 09-1895 and 09-2084                                                                   Page 2



at the jail: Bloomington Hospital and Health Care System, Inc., Wygonda Rogers, Jennifer
Anderson, Trina Estes, and Gwen Sunkel (the Medical Defendants); and Monroe County jail
officers Captain Judy Johnson and Sergeant James Edwards (the Jail Defendants). The Estate
also filed claims under state law against the Medical Defendants. Both sets of defendants
brought motions for summary judgment, asserting qualified immunity defenses. The district
court denied the motions. The defendants bring this interlocutory appeal, arguing that the
district court erred in denying their motions. We begin with the facts, which do not appear to
be disputed.

         Prior to Gee’s detention, Bloomington Hospital contracted with the Monroe County
sheriff to provide medical care to county jail inmates. The hospital agreed to provide a jail
doctor, a nurse practitioner, and four licensed practical nurses (LPNs) to care for the inmates
on a seven-days-a-week basis. The hospital was also expected to provide emergency care when
needed. At the time of Gee’s detention, Rogers served as the jail’s nurse practitioner. Anderson,
Estes, and Sunkel were three of the four LPNs. Rogers typically worked weekdays and the LPNs
covered morning and evening shifts. None of the nurses worked between 11 p.m. and 4 a.m., but
some of the jail officers were trained EMTs. In addition, jail officers were required to complete
two 40-hour training sessions, which included a class on medical considerations for inmates. Dr.
Tim Alward was the jail doctor at the time. He served a supervisory role and worked a minimum
of five hours a week at the jail. Dr. Alward was usually on call to consult on individual cases,
but he was on vacation during the last week of Gee’s detention.

        Gee was booked into the jail on March 18, 2005, following arrest on a theft charge. He
had been held in the jail on prior occasions and was a known diabetic and schizophrenic. Rogers
ordered that Gee receive a diabetic diet and insulin injections and have his blood sugar level
checked twice a day. The nurses contacted Gee’s mother regarding other medications he may
have been taking. Gee’s mother subsequently brought his prescriptions to the jail, and they were
administered regularly. During Gee’s detention he had contact with a nurse two to four times a
day, though he refused insulin injections at times.

         A week after Gee entered the jail, Mark Estanislau became his cellmate. Gee complained
to Estanislau that he did not feel well and was in pain; as a result, Gee was not eating much of
anything. According to Estanislau, Gee said he did not want to get Estanislau sick. Over the
next few days, Gee’s health went into a rapid decline: he was falling out of bed, pacing in
circles, and suffering from severe back pain. Estanislau says that Gee asked his mother to urge
the staff to send him to the hospital. Estanislau also notes that he and other inmates repeatedly
told the medical staff and jail officers about Gee’s condition and said he needed to go to the
hospital.

       A couple of days after Estanislau and Gee became cellmates, Gee sought treatment from
Rogers. He was coughing and had a sore throat and a temperature of 100.3 degrees. Rogers
believed Gee had the flu and prescribed Benadryl, Robitussin, and Tylenol.
Nos. 09-1895 and 09-2084                                                                   Page 3



         The next day, during the morning medication pass, Anderson noticed that Gee was
unsteady on his feet and seemed dizzy. As Anderson checked his blood sugar level, Gee started
falling to the floor, and Anderson helped him get into bed. Gee had a fever of 103.7 degrees,
a high heart rate, and a respiration rate of 30 breaths per minute.1 Anderson contacted Rogers,
who told her to give Gee some Tylenol to reduce his temperature. His blood sugar, however,
remained high, which Anderson attributed to the fact that Gee refused breakfast.

         Later that morning, Rogers visited Gee, who complained of back pain and a sore throat.
He had a temperature of 100.2 degrees. Rogers concluded he still had the flu and ordered
Tylenol, Hydrocodone, Guaifenesin, rest, and fluid intake. When Gee’s mother called Rogers
to tell her that Gee needed to go to the hospital, Rogers said she was treating Gee’s symptoms.

        The following day, Anderson visited Gee to check his blood sugar and administer his
medications. When Estes relieved Anderson of her shift, Anderson says she told Estes that Gee
had the flu. Estes spoke to Gee on the evening medication pass about the importance of taking
his medication, getting rest, eating, and drinking fluids. She also checked his breathing, which
was short and rapid, and his blood sugar, which was high, even for a severe diabetic like Gee.
Estes called Rogers, expecting her to send Gee to the hospital. However, Rogers said she had
been treating Gee, and upon hearing his symptoms she concluded that he had a bacterial
infection. Rogers prescribed Keflex, an antibiotic, and asked Estes to check Gee’s blood sugar
again on the evening medication pass. If it exceeded a certain level, Estes was to administer a
double dose of insulin.

        On the evening pass, some of the inmates, including Estanislau, allegedly told Estes that
Gee had not eaten for several days and had passed out that morning. Estes told Gee he needed to
eat, drink fluids, and take his insulin. She checked Gee’s blood sugar level, which had dropped
but was still high, so she gave him a double dose of insulin as well as a double dose of Keflex.

        Estes called for Captain Johnson and recommended placing Gee in medical segregation
for observation. Johnson admits she overheard inmates saying Gee was sick and not eating and
they did not want to catch the flu from him. However, she denies that the inmates said Gee
needed to go to the hospital. Johnson approved Gee’s transfer to medical segregation and
signed an order which stated that Gee had an extremely high blood sugar level and a respiratory
condition. Gee was too weak to sign the paperwork or walk, so Johnson wheeled Gee to the
segregation cell where Estes and jail officers monitored him. They noted that he was lying
down and seemed to be resting. Estes finished her shift around 11:30 p.m., not expecting Gee’s
condition to worsen.



       1
         The average adult has respirations of 12-20 per minute at rest and 35-45 during strenuous
exercise. http://en.wikipedia.org/wiki/Respiratory_rate (last visited January 15, 2010).
Nos. 09-1895 and 09-2084                                                                     Page 4



       The next morning, March 31, Sunkel was on duty. On the first medication pass, Sunkel
gave Gee his prescriptions and tried to persuade him to eat, but she only succeeded in having him
drink half a glass of milk. Gee was pale and ashy in appearance and seemed tired and weak, but
Sunkel, like the other nurses, believed he had the flu. A couple of hours later, Gee was sleeping
and had not eaten. Sunkel gave him additional medications, including Keflex, and noted he was
responsive to verbal commands.

        About an hour later, Rogers visited Gee and noticed he was dusky and kind of gray in
color, which suggested he had a respiratory problem. Rogers believed Gee had developed
pneumonia, and she told Sergeant Edwards that Gee needed to go to the hospital. When an
officer arrived to take Gee to the hospital a half hour later, Gee was disoriented. He had to be
wheeled to the van. Upon arriving at the hospital, the officer sought help in the emergency room.
When he returned to the van, Gee was no longer breathing. Gee was taken into the emergency
room, where doctors found that Gee had a severe case of pneumonia, his kidneys were not
working properly, and he was in critical condition. He died at the hospital five days later, on
April 5, 2005.

        Several experts who examined Gee’s treatment records concluded that his symptoms
clearly indicated a need for immediate medical attention and that he should have been taken to
the hospital much sooner than he was. They believe Gee received inadequate medical care at the
jail. Dr. Alward also testified that Gee should have been taken to the hospital sooner, and Rogers
admits, in retrospect, she should have handled things differently.

        We review orders denying claims of qualified immunity under the “collateral order
doctrine.” Sain v. Wood, 512 F.3d 886, 890 (7th Cir. 2008). Qualified immunity protects
government officials from liability for damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). A two-part test
determines whether qualified immunity exists. Courts look at whether the facts alleged show
that the defendants violated a constitutional right, and then they decide whether the right was
clearly established. Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001). We need not address
the two prongs in sequence. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

       As a threshold matter, the Estate contends that the Medical Defendants are not entitled to
invoke qualified immunity because they are not “state actors.” Although in some cases private
defendants can claim qualified immunity, this is not one of those cases. In making that
determination, we consider the immunity historically accorded the relevant official at common
law and the interests behind it. Malinowski v. DeLuca, 177 F.3d 623, 627 (7th Cir. 1999)
(quoting Butz v. Economou, 438 U.S. 478, 508, 98 S. Ct. 2894, 2912 (1978)). But the Medical
Defendants fail to provide any evidence that prison nurses (or private hospitals) have historically
enjoyed qualified immunity.
Nos. 09-1895 and 09-2084                                                                    Page 5



        Instead, the Medical Defendants argue that they can assert the defense based upon their
performance of a governmental function. However, we do not use a functional approach to
determine qualified immunity, “especially for a private person who performs a job without
government supervision or direction.” Richardson v. McKnight, 521 U.S. 399, 408-409, 117
S. Ct. 2100, 2106 (1997). The Court in Richardson denied the defense of qualified immunity to
privately employed prison guards, making special note of the context in which the case arose: a
private firm “systematically organized to assume a major lengthy administrative task (managing
an institution) with limited direct supervision by the government . . . .” The Court left open the
question of whether a private individual “briefly associated with a government body, serving as
an adjunct to government in an essential governmental activity, or acting under close official
supervision” could assert qualified immunity. Id. at 413. The Medical Defendants in our case
are in a position that is fairly analogous to that of the defendants in Richardson. Their
association with Monroe County was not brief, and it seems they performed their jobs with little
to no supervision from the Monroe County sheriff. Stephen Sharp, the elected sheriff at the time
of Gee’s death, maintains that, according to the contract, the hospital was “acting as an
independent contractor and not in the capacity of an agent or under an employment relationship
with the jail or the county,” and the nurses “served as independent contractors for the Monroe
County sheriff, not as agents, servants or employees of the sheriff.”

        So, if push came to shove, we might very well conclude that the Medical Defendants
here are not entitled to claim qualified immunity. But push has not come to shove. We need not
definitively decide the issue. Like the district court, we take a pass because even if the defense
could be claimed by the Medical Defendants, it would be rejected on the merits in this case.

        Inmates have a constitutional right to receive adequate medical treatment. Estelle v.
Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 290 (1976). Because Gee was a pretrial detainee rather
than a convicted prisoner, the Estate’s claim falls under the Due Process Clause of the Fourteenth
Amendment rather than the Eighth Amendment, but the standards are pretty much the same.
Velez v. Johnson, 395 F.3d 732, 735 (7th Cir. 2005). To ultimately succeed on its § 1983 claim,
the Estate must show deliberate indifference to Gee’s medical needs, which involves proving
both an objective component--a sufficiently serious medical need--and a subjective component--a
sufficiently culpable state of mind on the part of the defendants in denying medical care. Greeno
v. Daley, 414 F.3d 645, 653 (7th Cir. 2005). To be liable, the defendants must have known of
Gee’s serious medical need and consciously disregarded that need so as to inflict cruel and
unusual punishment upon him. Johnson v. Doughty, 433 F.3d 1001, 1010 (7th Cir. 2006).

        The Medical Defendants do not put up much of a fight on the objective prong, and the
Jail Defendants fully concede that Gee had a serious medical need. A medical condition is
sufficiently serious when it has either been “diagnosed by a physician as mandating treatment or
one that is so obvious that even a lay person would perceive the need for a doctor’s attention.”
Thomas v. Cook County Sheriff’s Dep’t, 588 F.3d 445, 452 (7th Cir. 2009). Gee’s condition as
an insulin-dependent diabetic and schizophrenic, who complained of pain and was not eating,
Nos. 09-1895 and 09-2084                                                                      Page 6



clearly meets this standard. Accordingly, we focus on whether the defendants were deliberately
indifferent.

        The Medical Defendants point out that “Gee was not locked into some corner of the
jail and ignored by the medical staff.” But Gee does not need to show he was literally ignored.
Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000). Gee’s treatment may be found
constitutionally inadequate if it was “so blatantly inappropriate as to evidence intentional
mistreatment likely to seriously aggravate” his condition. Greeno, 414 F.3d at 654 (quoting
Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996)). Given the evidence presented by the
Estate, a reasonable jury could find that the Medical Defendants provided “blatantly
inappropriate” treatment. Gee was a severe diabetic who was experiencing unstable blood sugar
levels, suffering intense pain, and refusing to eat or hydrate. He started falling to the floor while
Anderson tried to administer insulin, and when Estes decided to move Gee to a segregation cell
he could not walk. Furthermore, Gee’s mother and other inmates allegedly told the jail and
medical staff that Gee needed to go to the hospital. Given these and other allegations, there is a
genuine issue of material fact as to whether the Medical Defendants were deliberately indifferent
to Gee’s needs.

        Unlike the Medical Defendants, the Jail Defendants are clearly state actors, and they
can assert qualified immunity. While the case is closer against the Jail Defendants, a jury could
determine that they, too, were deliberately indifferent to Gee’s medical condition. Johnson and
Edwards argue that they were entitled to rely on the nurses’ judgments, and generally prison
officials can defer to medical professionals’ opinions. Burks v. Raemisch, 555 F.3d 592, 595 (7th
Cir. 2009). However, there is an exception when a risk to the prisoner’s health is so obvious that
a jury may reasonably infer actual knowledge on the part of the defendants. Vinning-El v. Long,
482 F.3d 923, 925 (7th Cir. 2007) (citing Hall v. Bennett, 379 F.3d 462, 464 (7th Cir. 2004)).
This may be one of the rare cases where a layperson would recognize that Gee received treatment
so inadequate that Johnson’s and Edwards’ deference to the nurses was unreasonable. Johnson,
433 F.3d at 1011. Gee was clearly in terrible shape, and he was deteriorating right before
everyone’s eyes. We agree with the district court that it is conceivable Johnson and Edwards
should have realized that Gee needed immediate medical care, probably in a hospital.

       For these reasons, the district court’s judgment is AFFIRMED.
