                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 04-1430
RICHARD FOELKER,
                                          Plaintiff-Appellant,
                              v.

OUTAGAMIE COUNTY et al.,
                                       Defendants-Appellees.

                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
         No. 00-C-1464—William C. Griesbach, Judge.
                        ____________
  ARGUED NOVEMBER 2, 2004—DECIDED JANUARY 7, 2005
                   ____________




  Before POSNER, MANION, and EVANS, Circuit Judges.
  EVANS, Circuit Judge. After 2 days in the Outagamie
County jail, according to a social worker there, Richard
Foelker was “confused and disoriented” and, despite having
defecated in his cell and on himself, he was “unaware of the
mess that he created.” Although his condition, which
resulted from his forced withdrawal from methadone, con-
tinued to deteriorate, he was not taken to the hospital for 2
more days. That delay, along with Foelker’s inability to
obtain methadone while he was incarcerated, forms the
basis of this appeal from the dismissal of his suit alleging
a violation of his constitutional rights.
2                                                No. 04-1430

  Foelker turned himself in at the jail on April 27, 2000, to
begin serving a sentence in connection with a conviction for
operating a motor vehicle under the influence of an intoxi-
cant. At the time, Foelker was on a methadone maintenance
treatment program designed to wean people off of their
narcotic addition. The program was administered by Valley
Health Services, a clinic in the town of Menasha in
Outagamie County. He had been on the program for about
5 weeks when he self-reported at the jail, but he had not
taken his daily dose of methadone when he arrived. He says
he didn’t take his dose because he was ill in the morning
and the clinic closed at noon.
  Soon after Foelker’s arrival at the jail, Paul Mintzlaff, a
registered nurse, examined him. Foelker told Mintzlaff that
he needed to receive a dose of methadone to avoid going into
withdrawal. The next morning, Marcia Allain, the jail’s
nursing coordinator, evaluated Foelker and told him that he
would not receive methadone during his incarceration
because he had been off the drug for 3 days. Still, Allain
called Valley Health Services because it worked with the
jail and provided methadone for other inmates. Allain was
told that Foelker should receive a reduced dose of metha-
done. It is neither clear nor particularly relevant at this
point why the methadone never made it to the jail; it is only
important that Foelker did not receive any methadone that
day or, for that matter, at any time while he was there.
  At 1:15 p.m. on Foelker’s third day in a holding cell, Brian
Schertz, another registered nurse, checked on Foelker, then
reported to Sergeant John Behrent that Foelker could be
moved to a cell with the general population if necessary. An
hour later, Sergeant Behrent told Schertz that Foelker had
defecated on himself and on the floor of the holding cell and
that the stench was “unbearable.” Although Schertz says he
thought Foelker was “playing the system” and not in need
of medical attention, he arranged for Diane Mandler,
supervisor of the Outagamie County Crisis Program and the
Case Management Program of Outagamie County, to eval-
No. 04-1430                                                3

uate Foelker. Mandler, a social worker, examined Foelker at
4:15 p.m. and found that he was confused, disoriented, and
hearing voices, and that, although he knew that he had not
taken methadone for several days, he was unaware that he
had defecated on himself and on the floor of his cell.
Mandler recommended that Foelker be observed but did not
push for immediate medical attention.
   Neither Schertz nor Mandler saw Foelker the next day.
Foelker remained in his cell despite again defecating on the
floor. The following morning, Mintzlaff found Foelker to be
“disoriented.” Foelker thought he was at “the wedding hotel”
waiting to be married and was hallucinating about another
person in his cell. Mintzlaff left a message with Mandler
and called the jail’s doctor, who recommended that
Mintzlaff give Foelker thiamine, a drug used for alcohol
withdrawal, which he did. Mintzlaff returned 2 hours later
and found Foelker in the same condition. An hour after
that, Mintzlaff sent Foelker to the hospital. Foelker eventu-
ally was diagnosed with acute delirium, secondary to drug
withdrawal. Foelker spent 4 days in the hospital before
being transferred back to the Outagamie County jail.
  Foelker sued under 42 U.S.C. § 1983, claiming that those
responsible for caring for him violated his Eighth and
Fourteenth Amendment rights by denying him methadone
and, as his condition worsened, by failing to provide him
adequate medical care. After the complaints against several
defendants were dismissed, the district court granted a
motion for summary judgment in favor of the remaining
defendants. Foelker appeals only his Eighth Amendment
claims against Schertz and Mandler and his derivative
statutory indemnification claim against Outagamie County,
the outcome of which depends on the outcome of Foelker’s
claims against the County employees, see Wis. Stat.
§ 895.46 (2002).
  To prevail, Foelker must show deliberate indifference to
a serious medical need. See Estelle v. Gamble, 429 U.S. 97,
104 (1976). “A ‘serious’ medical need is one that has been
4                                                  No. 04-1430

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.” Jackson v.
Illinois Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002)
(quoting Gutierrez v. Peters, 111 F.3d 1364, 1371 (7th Cir.
1997)). We review the district court’s grant of summary
judgment de novo. See, e.g., Mateu-Anderegg v. School Dist.
of Whitefish Bay, 304 F.3d 618, 623 (7th Cir. 2002).
   Although the district court found otherwise, defendants
argue that Foelker failed to present evidence of a serious
medical need because he could not show that he was in
“pain or extreme distress.” We side with the district court.
That Foelker was not in extreme distress does not necessar-
ily mean that he did not have a serious medical need. Here,
as it turns out, the opposite is true. The fact that Foelker
was not distressed despite believing he was at the “wedding
hotel” and defecating on the floor of his cell and on himself
is strong evidence of a severe medical need. Defendants also
argue that Foelker must not have had a serious medical
need because both Schertz and Mandler examined him and
did not send him to the hospital. But that doesn’t mean
Foelker didn’t have a serious medical need, only that
defendants took no action to treat him, which is exactly
what Foelker claims was the problem.
   The question, then, is whether, as they now suggest,
Schertz and Mandler were merely negligent in their as-
sessment of Foelker’s condition or whether they were de-
liberately indifferent to his medical needs. See Jackson, 300
F.3d at 765 (“Evidence that the official acted negligently is
insufficient to prove deliberate indifference.”). “ ‘[D]eliberate
indifference’ is simply a synonym for intentional or reckless
conduct, and . . . ‘reckless’ describes conduct so dangerous
that the deliberate nature of the defendant’s actions can be
inferred.” Qian v. Kautz, 168 F.3d 949, 955 (7th Cir. 1999).
  Schertz and Mandler argue—and the district court
agreed—that Foelker failed to present evidence showing
No. 04-1430                                                 5

that the defendants knew how serious Foelker’s condition
was. While it is true that Foelker has not presented evi-
dence of, say, statements by Schertz and Mandler proving
that they knew the severity of Foelker’s condition, direct
evidence is not always necessary to state a claim. See
Farmer v. Brennan, 511 U.S. 825, 842 (1994) (allowing proof
of deliberate indifference by “inference from circumstantial
evidence”). Undisputed evidence shows that Schertz checked
on Foelker the night of April 28 and again around 1:15 p.m.
the next day. He did not seek further medical attention for
Foelker, even though Foelker had defecated on the floor of
his cell and on himself. Although Schertz might have
honestly believed, as he claims, that Foelker “was playing
the system,” a reasonable jury could consider that Schertz
knew that Foelker had not taken his methadone and was
exhibiting signs of withdrawal and thus conclude that
Schertz knew there was something seriously wrong with
Foelker. It could thus conclude that Schertz recklessly or
maliciously allowed the situation to fester.
   Similarly, after examining Foelker a few hours after
Schertz on April 29, Mandler found Foelker to be “confused
and disoriented” and “unaware” that he had defecated in his
cell. Although Mandler knew that Foelker might have been
suffering from methadone withdrawal, she recommended
only that he continue to be monitored. Again, she might not
have understood the severity of the situation and might
have negligently believed that Foelker did not need addi-
tional medical attention. But drawing all inferences in
Foelker’s favor, as we must at this stage, a reasonable jury
could also conclude that she intentionally allowed Foelker
to suffer from the effects of his withdrawal. We, of course,
cannot predict how a jury would view this situation. The
facts, as we have presented them, put the best light on
Foelker’s view of the case. A contrary view might actually
present a truer picture of the situation. At this stage of the
litigation, we think the case should not have been short-
6                                               No. 04-1430

circuited on summary judgment. Therefore, we REVERSE the
judgment and REMAND the case for further proceedings.




  MANION, Circuit Judge, dissenting. I agree with the dis-
trict court and this court that for summary judgment pur-
poses Richard Foelker established that he had a serious
medical need. However, contrary to the court’s opinion, the
district court correctly held that the evidence and its
reasonable inferences, when construed in favor of Foelker,
do not amount to deliberate indifference on the part of
Brian Schertz or Diane Mandler. At most, the evidence
shows that Schertz and Mandler were negligent in dealing
with Foelker’s serious medical need. Therefore, I respect-
fully dissent.
  To be deliberately indifferent, Schertz and Mandler must
have “had a sufficiently culpable state of mind.” Jackson v.
Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002)
(internal quotation omitted). Under this subjective standard,
Foelker “must proffer evidence demonstrating that [Schertz
and Mandler] were aware of a substantial risk of serious
injury to [Foelker] but nevertheless failed to take appropri-
ate steps to protect him from a known danger.” Id. (internal
quotation omitted).
  The evidence, viewed in favor of Foelker, merely shows
that Schertz and Mandler should have done more to rec-
ognize, understand, and alleviate his deteriorating condi-
tion: Schertz and Mandler should have been more mindful
of Foelker’s risk of serious withdrawal; Schertz should have
done more to obtain methadone; he should have done more
to obtain information from Foelker’s methadone provider;
he should have understood Foelker’s defecating on himself
No. 04-1430                                                7

and the floor as an indication of a serious medical need and
responded to it better; and Mandler erred in recommending
additional monitoring of Foelker at the jail rather than
hospitalization. Yet none of this amounts to deliberate
indifference.
  Schertz and Mandler did not ignore Foelker’s needs. They
afforded him medical monitoring and treatment. Based on
his nursing notes made at 1:15 p.m. on Saturday, April 29,
2000, Schertz clearly is not being deliberately indifferent.
    “Inmate Rechecked in holding cell. V/S taken B/P
    148/78, AP 78 & regular, Resp - 24. Continues [with]
    mild tremors but ambulates with a steady gait. He is
    selectively oriented to person, place & time. Skin is
    warm/dry. Color is pink. Has No physical complaints &
    appears in No distress. Plan is to continue to keep
    inmate in monitored holding cell for close observation.
    S/Sgt. Behrent was advised inmate may be placed in
    general population if the holding cell is needed by some-
    one else. Encouraged inmate to push fluids.”
  An hour later Behrent informed Schertz that Foelker had
defecated on himself and the floor. Given the very recent
medical examination, it would not be unreasonable for
Schertz to speculate that Foelker was “gaming the system.”
Nevertheless, rather than deliberately ignoring Foelker’s
needs, he arranged for Mandler to examine him.
   Mandler, a social worker from the County Department of
Social Services, went to the jail to evaluate Foelker. Her
training was in social work, not medicine. Perhaps when he
told her that he was off his methadone for several days and
that he did not recall defecating on himself and the floor,
she should have alerted the officials that he needed immedi-
ate attention. Instead, she determined that he was not
experiencing acute distress and simply needed continued
observation. That conclusion may have been negligent, but
it was not deliberate indifference amounting to cruel and
unusual punishment.
8                                                    No. 04-1430

  On Sunday, April 30, 2000, Schertz was not on duty.
Mandler was on call, but no one called. In hindsight, both
should have done more. But “not every instance of poor
medical treatment amounts to a federal constitutional vio-
lation.” Steele v. Choi, 82 F.3d 175, 176 (7th Cir. 1996).
Moreover, while circumstantial evidence can be enough to
survive summary judgment, the circumstantial evidence here
shows, at most, that Schertz and Mandler were negligent in
failing to recognize how serious Foelker’s needs were or
negligent in failing to do enough to address those needs.1
  A reasonable jury cannot translate such evidence of mis-
judgment or negligence into deliberate indifference. It would
require much speculation to conclude that Schertz and
Mandler had a culpable state of mind, i.e., that they inten-
tionally or recklessly withheld treatment so as to inflict
punishment. It is well established, however, that “[i]nfer-
ences . . . supported by only speculation or conjecture will
not defeat a summary judgment motion.” McDonald v. Vill.
of Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004). Future
plaintiffs should not be able to survive summary judgment
by merely establishing a serious medical need and then
claiming that a defendant’s failure to do more to recognize
or treat that need amounted to deliberate indifference.



1
   In this regard, Foelker’s case is analogous to numerous other
deliberate-indifference cases that we have precluded from going
to trial. See, e.g., Matos v. O’Sullivan, 335 F.3d 553, 557-58 (7th
Cir. 2003); Chapman v. Keltner, 241 F.3d 842, 846 (7th Cir. 2001);
Walker v. Peters, 233 F.3d 494, 500-01 (7th Cir. 2000); Zentmyer
v. Kendall County, 220 F.3d 805, 811-12 (7th Cir. 2000); Higgins
v. Corr. Med. Servs. of Ill., Inc., 178 F.3d 508, 511-13 (7th Cir.
1999) (“An error in judgment does not imply a deliberate act.”);
Qian v. Kautz, 168 F.3d 949, 956 (7th Cir. 1999); Collignon v.
Milwaukee County, 163 F.3d 982, 989-91 (7th Cir. 1998); Gutierrez
v. Peters, 111 F.3d 1364, 1374-75 (7th Cir. 1997); Cole v. Fromm,
94 F.3d 254, 261-63 (7th Cir. 1996); Steele, 82 F.3d at 178-79.
No. 04-1430                                              9

  Although Foelker suffered some personal indignities and
some serious medical problems due to the unnecessary
withdrawal from his drug addiction, there is not sufficient
evidence for a reasonable jury to conclude that Schertz and
Mandler were deliberately indifferent to Foelker’s medical
needs. Therefore, for these and the reasons set out in the
district court’s opinion, I respectfully dissent.


A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—1-7-05
