In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3180

TOBY R. CHAVEZ,

Plaintiff-Appellant,

v.

GILBERT "GIB" CADY, JANE BATTLES,
DON FULTON, BOB STRAIGHT, JOE FAMELLI,
and TOM SHOEMAKER,

Defendants-Appellees.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CV 4089--Joe B. McDade, Chief Judge.


Argued February 16, 2000--Decided March 22, 2000



  Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.

  EVANS, Circuit Judge. Toby Chavez, arrested for
possession of marijuana with intent to deliver,
was held in the Henry County jail from May 1996
until May 1997 when he pled guilty to the charge.
He alleges that while in the jail he suffered
from a serious medical need--he had a perforated
appendix--and that the defendants were
deliberately indifferent to his condition, in
violation of the Fourteenth Amendment to the
United States Constitution. He sued under 42
U.S.C. sec. 1983, naming as defendants Gilbert
Cady, the sheriff; Robert Streight, the jail
administrator; Joseph Femali, Don Fulton, and Tom
Shoemaker, correctional officers; and Jane
Battles, a nurse practitioner who was supervisor
of the jail clinic./1

  The district court granted summary judgment to
the defendants, a decision which we review de
novo. Summary judgment is proper only when there
is no genuine issue of material fact and the
moving party is entitled to judgment as a matter
of law. Rule 56, Federal Rules of Civil
Procedure. We must construe the facts in the
light most favorable to the nonmoving party and
draw all inferences in his favor. Holtz v. J.J.B.
Hilliard W.L. Lyons, Inc., 185 F.3d 732 (7th Cir.
1999).

  The facts show that the Henry County jail does
not have its own written manual of policies for
the operation of the jail; it follows the
Illinois County Jail Standards, which are issued
by the Illinois DOC. During the relevant time,
when a detainee complained of an illness, the
usual procedure was that a correctional officer
prepared a form for the jail nurse, who came in
once a week for sick call. The detainee would see
the nurse on sick call. If the illness was
serious, the officer could call a Health
Department nurse or a hospital emergency room. If
the illness seemed to present an emergency, the
officer contacted the senior deputy on duty so
that a decision could be made as to whether to
take the detainee to the hospital.

  After dinner on Monday, October 21, 1996,
Chavez, who all agree had never caused problems
at the jail, had severe stomach pain; he was
vomiting, he was sweating, had chills, and said
that he wanted to go to the hospital. He was
placed in a holding cell for observation. Femali
called a nurse (presumably the public health
nurse or an emergency room nurse), who said that
if the symptoms worsened, Chavez should be taken
to an emergency room. As the nurse instructed,
Chavez was given an aspirin, which he vomited
immediately. Femali recorded information about
Chavez in the jail log book so that the next
shift would know what was going on. During this
period, Chavez says that his stomach hurt so
badly that he was curled up in a ball on the
floor. He continued to vomit and later to have
dry heaves. He asked again during the night to go
to the hospital, but he was kept in the holding
cell. The next day the dry heaves stopped but,
still in pain, Chavez asked Streight, who was now
on duty and who had read the log book, if he
could see a doctor. Streight said the nurse would
be on duty on the 23rd and Chavez could see her
then. Chavez was moved back to his regular cell.
On the 23rd, in fact, Chavez saw nurse Battles
and told her of his symptoms. She asked about
diarrhea and Chavez said that, to the contrary,
he had not had a bowel movement for a couple of
days. Battles told him he had the flu and would
be put on a diet of soup and crackers. She also
noted that he should be given one Ex-Lax. She
said that if his symptoms increased he should see
a doctor. The medical reports the nurse prepares
after she sees detainees are available for review
by the correctional officers.

  The same general pattern continued from the
24th though the 30th. Chavez felt sick and was
not eating properly and, in fact, may not have
been provided the diet the nurse ordered. On the
24th he again received an Ex-Lax, still with no
positive results. He continued to ask to see a
doctor. On the evening of the 27th, when he asked
to see a doctor, Femali told him he had to see
the nurse first. He asked again the next morning,
the next evening, and on the following days to
see a doctor or a nurse. Finally, on October 30,
he saw nurse Battles, who, because he had not yet
had a bowel movement, said he should have more
fluids and that she would given him a stronger
laxative, Dulcolax, one time only. Echoing her
words of a week earlier, she said that if the
Dulcolax did not provide relief he should be
referred to a doctor. That evening Chavez asked
Shoemaker for the Dulcolax; Shoemaker looked for
the laxative but there was none available.
Amazingly, Shoemaker said that he understood that
mineral oil would work and he gave it to a
somewhat reluctant Chavez, who claims that
Shoemaker said if he did not take the mineral oil
he would be refusing medical treatment.

  On the morning of October 31, because Chavez
did not see a guard on his cellblock, he called
his lawyer’s secretary to ask her to call the
jail to have them send one to see him. Fulton
responded and, although Chavez did not want more
laxative because he did not think it would do any
good, and although the nurse had not authorized
it beyond the one time on the 30th, Fulton gave
him two Dulcolax tablets at about 10:40 a.m.
Around 5 p.m., Chavez told Femali that the
Dulcolax had not worked and he wanted to go to a
hospital. At about 9:30 p.m. Femali called the
Kewanee Hospital emergency room and told a nurse
that Chavez had not had a bowel movement in 10
days. She said to give him more Dulcolax but, as
it turns out, there was none available in the
jail. Finally, Femali recommended that Chavez be
taken to the emergency room. Chavez was then
taken to the Hammond-Henry Hospital in Geneseo.

  In the emergency room, Dr. Lekha Prasad
examined him. At this time Chavez was complaining
of diffuse abdominal pain, especially in the
suprapubic region. He said he had pain after he
urinated and that he had had chills for 3 to 4
days. Dr. Prasad said in her report that Chavez
did not appear to be in acute distress, though he
looked ill. He had a mild fever. Blood tests
revealed a very high white blood count. Dr.
Prasad concluded that Chavez had a urinary tract
infection, which she now admits was a
misdiagnosis.

  Chavez’s condition deteriorated overnight in the
hospital, causing Dr. Prasad to change her
diagnosis to possible appendicitis. She called
Dr. Yogin Parikh for a consultation. His rectal
examination of Chavez showed "bogginess," which
suggested an abscess. Dr. Parikh’s impression was
that Chavez most likely had an acute appendicitis
perforation with an appendiceal abscess. Dr.
Parikh did an exploratory laparotomy on November
1. The post-operative diagnosis was that Chavez
had an appendicular abscess and a perforated
appendix. Chavez was released on November 7, with
no further medical problems. He contends,
however, that because of his deteriorated
condition the surgery lasted longer than normal,
and he had to have a tube down his throat for 4
days, which increases the risk that he may
develop adhesions.

  The district judge found that Chavez had a
serious medical need and expressed his dismay at
how the correctional officers treated Chavez. But
he concluded that Chavez had not shown that,
subjectively, the guards knew of the risk Chavez
faced and that the danger was not so objectively
great that actual knowledge of the danger could
be imputed to them. As to Battles, Chavez could
not show that her treatment constituted a
substantial departure from accepted professional
judgment. The judge interpreted the claim against
Sheriff Cady as being either a policy or
procedure claim or a respondeat superior claim.
He found that Chavez did not present evidence as
to the former and that the latter, of course,
does not apply.

  On appeal, the defendants’ argument is, first
of all, that while appendicitis is a serious
medical need, there was no indication until
Chavez was in the hospital that he, in fact,
suffered from appendicitis or any other serious
medical need. They argue that the nurse exercised
professional judgment (or at least Chavez has not
shown she did not); the correctional officers
were simply following her lead; and in any case,
the officers did not have subjective knowledge
regarding Chavez’s condition which would render
their treatment of him deliberately indifferent
and therefore unconstitutional.

  A pretrial detainee’s claim alleging inadequate
medical care is a Due Process claim. Bell v.
Wolfish, 441 U.S. 520 (1979). In general, the
claim is analyzed in the same way as a claim
under the Eighth Amendment to determine whether
the officials showed deliberate indifference to
serious medical needs. County of Sacramento v.
Lewis, 523 U.S. 833 (1998). "Deliberate
indifference" is not self-defining. In Farmer v.
Brennan, 511 U.S. 825, 837 (1994), the Court
determined that it sets out a subjective, not an
objective, standard:

We hold instead that a prison official cannot be
found liable under the Eighth Amendment 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.

As to the correctional officers, this is the
standard which applies.

  As to a medical professional such as the nurse
in this case, however, the analysis is a little
different. In Collignon v. Milwaukee County, 163
F.3d 982 (7th Cir. 1998), we pointed out that the
professional judgment standard applies in
Fourteenth Amendment claims to decisions made by
professionals such as physicians and nurses
within their area of expertise. But we also said
that the Fourteenth Amendment professional
judgment standard is "comparable" to the
deliberate indifference standard and requires
"essentially the same analysis." Collignon, at
988, 989. First, a plaintiff must establish an
objectively serious medical need. Then the
plaintiff must show "(1) that the professional
knew of the serious medical need, and (2)
disregarded that need." At 989. The trier of fact
can conclude that the professional knew of the
need from evidence that it was obvious and,
further, it can be assumed that "what might not
be obvious to a lay person might be obvious to a
professional acting within her area of
expertise." At 989.

  Defendants provided a medical expert, Dr. Thomas
G. Soper, to establish that what nurse Battles
did was within the norm. They argue that because
Chavez did not offer expert testimony, he cannot
prevail on the claim against Battles. However, it
seems to us that Dr. Soper’s testimony cuts both
ways. Certainly it is not so convincing as to
require summary judgment for Battles.

  Dr. Soper testified that while Chavez’s symptoms
were like those of the stomach flu, they were
also consistent with food poisoning, mesenteric
adenitis, gallbladder gastritis, or appendicitis.
He found nurse Battles’ actions appropriate on
October 23rd when she ordered that if Chavez’s
symptoms worsened he should be taken to the
hospital. Then Dr. Soper admitted that his notes
show that Chavez’s condition worsened during the
night, but he testified that, in fact, there was
nothing, except Chavez’s word, to show that he
continued to be in considerable pain or that he
was getting worse. From the fact that the only
written observations of Chavez are nurses’ notes,
one page from the 23rd and one from the 30th, Dr.
Soper arrives at the somewhat questionable
conclusion that no one else observed that Chavez
was in bad shape because if they had, surely they
would have done something about it. "I just have
to assume in this dang [day and] age that if such
a thing occurred that they would at least pick up
the phone and make somebody aware that somebody
was really getting sicker and sicker." In other
words, there could have been nothing wrong
because if there had been, someone would have
done something about it; no one did; therefore
there was nothing wrong. An interesting logical
proposition. An opinion based on such a
foundation is not a solid basis for a grant of
summary judgment.

  As to the likely progress of Chavez’s illness,
Dr. Soper’s testimony is as helpful to Chavez as
to Battles. The doctor testified that at first
Chavez either had an infection in his appendix or
an obstruction of the appendix with inflammation.
After the appendicitis developed, the appendix
ruptured. After the rupture, the abscess
developed. Dr. Soper guessed that Chavez’s
appendix had been ruptured for at least 2 and at
the most 7 or 8 days. If that is the case, then
Chavez’s testimony regarding pain can hardly be
considered incredible as a matter of law.

  Dr. Soper nevertheless concludes that Battles
"complied with the applicable standard of care
for a medical professional . . . in her diagnosis
and treatment of Mr. Chavez on October 23 . . .
." He said the same of her treatment on October
30. But given the nature of his testimony, we
think that an issue of material fact exists as to
whether the treatment was a substantial departure
from accepted professional judgment. Battles did
virtually the same thing on the 30th as she had
on the 23rd, even though by then Chavez had
suffered for 7 extra days. Battles knew that her
order on the 23rd to take Chavez to the doctor if
he got worse was not heeded. Why would she assume
it would be heeded on the 30th? Dr. Soper’s
testimony is not sufficient for us to determine
that, as a matter of law, Chavez did not have a
serious medical need or that he cannot show that
the nurse’s treatment was a substantial departure
from accepted professional judgment.

  As to the correctional officers, Chavez must
show they were deliberately indifferent to his
serious medical needs. The defendants argue that
the judge was wrong to conclude that Chavez had
a serious medical need prior to October 31. But
we know Chavez complained of pain and distress.
It turns out that he had a ruptured appendix.
Because he also had an abscess, according to Dr.
Soper, the appendix had been ruptured for some
time. It is hard for us to say as a matter of law
that there was no serious medical need.
  We also cannot find that, as a matter of law,
the officers were not deliberately indifferent to
Chavez’s condition. The officers cannot hide
behind the nurse. Even if her treatment of Chavez
had clearly been proper, we know that some of the
officers did not follow her directives. The most
glaring example is Shoemaker using his own
judgment and substituting mineral oil for
Dulcolax.

  The officers point out that Farmer requires
that to be liable they must have subjective
knowledge of the seriousness of Chavez’s
condition. They deny such knowledge and also
contend that his condition was not so obviously
serious as to require a conclusion that they knew
about it. We have some difficulty with this
argument as well. Chavez did his part to let the
officers know he was suffering. The situation is
somewhat analogous to that in Reed v. McBride,
178 F.3d 849 (7th Cir. 1999). There we found that
an inmate’s letters to officials setting out his
medical condition put the officials on notice of
his potential problem, and that the question as
to whether the officers drew the inference that
certain things should be done for the inmate
could be determined by a jury on the basis of
circumstantial evidence.

  This is not a case in which officers have taken
so many steps to obtain medical care for a
prisoner that their very concern for the inmate
rules out a finding of deliberate indifference.
See Dunigan ex rel. Nyman v. Winnebago County,
165 F.3d 587, 592 ("WCJ officials were
continually solicitous of Vance’s medical needs.
For most of his stay at the WCJ he was housed in
a receiving cell so that he could be closely
observed. Over the course of Vance’s
incarceration at the WCJ and in response to his
health complaints, he was repeatedly examined by
staff nurses and the jail’s doctor, Dr. Krieger.
Dr. Haffar, a neurologist, examined Vance several
times. The WCJ guards were similarly responsive
to Vance’s needs . . . ."). It is also not a case
clearly involving a relatively minor illness
which one can ignore without being found to be
deliberately indifferent. Cooper v. Casey, 97
F.3d 914, 916 (7th Cir. 1996) (Refusal to
"dispense bromides for the sniffles or minor
aches and pains or a tiny scratch or a mild
headache or minor fatigue . . . does not violate
the Constitution."); Gibson v. McEvers, 631 F.2d
95 (7th Cir. 1980) (failure to treat a common
cold does not violate the Eighth Amendment.)
Rather, this is a case requiring that inferences
be drawn as to what the officers knew. Given the
circumstances of this case, that they said they
did not know Chavez was seriously ill cannot
carry the day if other evidence would allow an
inference that they did know of a serious medical
need and that they were deliberately indifferent
to it.

  Sheriff Cady, however, was properly dismissed
from this case. Chavez has not shown that he had
anything to do with these events personally nor
that the policies are inadequate. In order to be
held liable a supervisor must know about the
situation and approve of it. He cannot be liable
if he is merely negligent in failing to detect
and prevent his subordinates’ misconduct. See
Reed; Jones v. City of Chicago, 856 F.2d 985 (7th
Cir. 1988).

  Accordingly, the summary judgment decision
dismissing Sheriff Cady is AFFIRMED. The decision as
to all other defendants is REVERSED and the case is
REMANDED to the district court for further
proceedings.


/1 The caption lists the defendants as "Straight"
and "Famelli" but we used the spelling from the
defendants’ brief.
