*1 forum proper the nor this Court court actually seeks. she which the relief in the hands belonged case
Plaintiffs in the ultimately and courts
the Ohio Supreme States of the United
hands respectfully dissent. I therefore
Court. ZENTMYER, Plaintiff-
Brian
Appellant, ILLINOIS, COUNTY, Rich
KENDALL Randall, Kendall Coun
ard Sheriff Gawne, Hawkins, Deputy
ty, Deputy Flowers, Depu Hetzel, Deputy
Deputy Walton, Deputy Pfister, Deputy
ty
Howe, Deputy Blank
Klebba, Defendants-Appellees. 99-1163, 99-1823.
Nos. Appeals, States Court
United
Seventh Circuit. 4, 2000
Argued Jan.
Decided June Obviously, Plain- court. from that it such relief Ms. Brush when majority is hostile toward custody hearing in the seeking inappropriately makes credi- repeatedly and tiff is not process Brush before bility about Ms. in due determinations as an exercise Ohio courts i.e., Ms. Brush remanding case for custody futility. trial — Plaintiff wants case,” "lied,” to discuss "refused of her chil- wants the return because Plaintiff jury are matters for Plaintiff. These "hid” And, Appeals again, Court of the Ohio dren. opinion. majority place in the and have no expressly Supreme Court have the Ohio Court, Moreover, Supreme Ohio it was the relief, finding that it was not denied her such I, in the opined that it was not which interests. Unlike the children’s best returned to to be children’s best interests assertion, implicitly or make no majority, I majority for Plaintiff calls Plaintiff. When otherwise, courts were whether the Ohio as to hearings Ohio proper in the to have rather, Plaintiff holding; I direct in so correct courts, Ohio Su- implicitly undermines the it Court, Supreme where States to the United grant a writ preme refusal to Plaintiff Court’s long ago. proceeded she should have sought corpus time that she habeas each *2 jailers claiming they violated his rights and dis- Fourteenth Amendment deliberate indifference to his health played treating Namely, his infection. Zent- jail deputies’ failure to ad- myer cites the antibiotics to him on prescription minister *3 affirm a number of occasions. We sum- in mary judgment favor of the defendants fell and hold that the defendants’ actions stan- of the deliberate indifference short liability under the Fourteenth dard for Amendment.
I. HISTORY County morning Each at the Kendall medi- jail, deputies check each inmate for complaints complaints register any cal Deputies call form. forward on a sick directly to the com- emergency complaints officer, whether manding who then decides care. a doctor for immediate to summon complaints are recorded for the Routine nurse, jail who visits twice attention of may necessary, If the nurse weekly. nearby inmate to a medi- ailing transfer an facility, a doctor’s visit or order request cal for the in- medication non-prescription dispense required, mate. As to accordance with medication inmates partic- doctor’s orders. No the nurse’s or medi- designated give to deputy ular inmates, any deputy but instead cation to admin- time is authorized to duty on at the the shift medication scheduled ister Lom- Bryan (argued), James Sullivan record each inmate com- log. officials Jail bard, IL, Plaintiff-Appellant. for examination and adminis- plaint, medical (argued), Clifford G. George J. Casson tration of medication. O’Halloran, Kosoff, Kosoff, Geitner & bur- arresting him for residential After Cook, Northbrook, IL, Defendants-Ap- for Brian County police booked glary, Kendall pellees. jail as a County Kendall Zentmyer into the CUDAHY, KANNE and DIANE Before January pretrial detainee on WOOD, Judges. later, P. Circuit evening during months Three complained to
KANNE, Judge. Circuit an ear- that he had Deputy Dave Gawne discharge, swell- Observing no ear ache. pretrial as a detainee While incarcerated suggest- emergency, Gawne ing signs Brian Zent- County jail, at the Kendall call the next Zentmyer go on sick that he ed that an ear infection myer contracted Zentmyer’s com- reported morning and permanent hearing ultimately claims led to the subse- log, advising plaint in the shift Zentmyer brought right ear. loss his the nurse. duty notify deputy on against quent his under 42 suit U.S.C. every eight days taken once hours for ten morning, Zentmyer followed The next (eleven by asking Deputy Jim days counting day prescrip- Gawne’s instruction him on sick call and call place tion), eardrop Hetzel to and the antibiotic Otocort officials, jail According infection, how- the nurse. drops for the outer-ear four to be ever, deputies miscommunicated several daily the ear four administered to times result, radio, and as over empty. until the bottle was Gaddam also placed sick call and did not see was not physician in directed to see a day. Zent- Mariis Nurse Schumacher Tylenol two weeks and take complained Deputies Chris Pfister fever. Hetzel and returned to afternoon, later that and Rick Flowers a.m., jail an hour less than later. had al- apologized Pfister the nurse later that Gaddam testified Amoxicillin ready jail. gave painkilling left the Pfister effective, consistently must be taken to be and wrote *4 acknowledged that ear but the infection log that the nurse should examine shift long have been treated so as Zent- would Zentmyer during her next visit. myer thirty pills ingested all of Amoxicillin 20, 1995, Zentmyer again com- April On days following prescription, the even Hetzel, taken plained to but the nurse had every if eight Zentmyer not taken hours. day a vacation and was unavailable. The of Amoxicillin received dose morning, Zentmyer next voiced no com- days1 following on seven of the eleven plaint Deputy surveyed when Tim Walker hospital eventually visit and took the en- However, for medical care. inmates thirty-pill tire bottle of Amoxicillin. Gad- day, Zentmyer later that told applications dam also testified that three that he Charles Walton day of Otocort a would be sufficient for checked asked to see doctor. Walton “prescribe treatment because doctors four who, with Howe after con- Sergeant James hoping will patients] [their times take it Hawkins, Michael or- sulting Commander Zentmyer pre- three times.” received the deputies next shift’s to take dered the scribed doses of on seven of twen- Otocort Zentmyer hospital. to the local Around 10 visit, ty days hospital following his 22, 1995, accompanied a.m. on Hetzel April at least on received three doses four of the room of the Zentmyer emergency remaining days during peri- thirteen that Community Hospital. Sandwich day, Zentmyer od. Each at received least Deenadayal Dr. Gaddam noticed inflam- painkillers day two in addition to his Zentmyer’s right mation in ear but did not prescription medication. boils, any swelling, discharge, blockage see Realizing that he was not taking his injury. Zentmyer signs report- other exactly according prescrip- to hearing signs ed no loss and exhibited no tion, Zentmyer complained Deputy to Pfis- diagnosed of inner-ear infection. Gaddam ter on and warned that he Zentmyer suffering only from otitis ex- if would sue he did not receive his medi- media, terna and otitis infections of the Pfister, According cation on schedule. to outer and middle ear. Gaddam later testi- “frustrated, condition, Zentmyer up- became seemed fied if un- left time, pacing set started back and forth.” up treated over could have cleared guards Pfister told him let the know if by might itself have but instead worsened attention, Zentmyer and led he needed medical potentially loss. Gad- responded duty dam the oral antibiotic Amoxi- it was the of the infection, deputies cillin for the and his middle-ear to be administer medication pills during remaining day. Similarly, 1. took three of Amoxicillin a half day days. on six Gaddam Amoxi- application only received one midday April cillin and around Olocort on midday departure before his Otocort only pills so received two of Amoxi- jail on applications cillin and three of Otocort later, August him Three months advised not to ask lawyer had Perry examined As he had been Santos for medication. Zentmyer complained trained, right again to ad- ear after Pfister instructed pain. report, told In his Santos observed “Deputy him Pfister” and dress in iso- is an excoriated area” placed “[t]here that he would be fingernail ear “most consistent with a kept complaining. right if When Zent- lation he found “no inflammation or Pfister decided to scratch.” He myer agitated, remained erythema evidence of acute him inmates infection “[a]ll vent” because “[l]et well as no evidence of chronic infection.” “didn’t feel that [Zent- vent” and Pfister explained that there was no evi- disciplinary action.” Zent- Santos myer] needed threatened, outer-ear infection but venting and of active myer continued dence wait, just going get you I’m there could be tenderness associated “You Indeed, February Zentmyer’s lawyer recently had healed infection. On court.” El-Diery Hawkins to Dr. L. examined Zent- already contacted Commander perforation As a re- and detected no of the protest Zentmyer’s treatment. sult, by eardrum but noticed some ear trauma that investigated questioning Hawkins Pfister, Lamons, suspected by “manipulation was caused Deputies Hetzel and Tara he place- canal was re- of the external ear with the but each answered prescribed. foreign ment of bodies the inmate.” ceiving medication as *5 15, 1996, Zentmyer was exam- complained April also about his ear On 1995, 26, yet time Dr. April again, by on to Gawne on ined this Robert to Flowers 1, 1995, May Zentmyer’s and For- Kramer who declared ear “ab- to Sabrina 3, 3, May solutely 2 normal” with no evidence of infec- May man on and 1995. On Nonetheless, 1995, examined Zent- tion. continued Nurse Schumacher earache, hearing loss. Kram- myer, complained report who of an and On request, audiologist Kathy Betestini bleeding headache and from the ear. er’s Zentmyer’s hearing with a standard bleeding Schumacher noticed no but found tested ear, Zentmyer re- right audiogram and found that yellow drainage Zentmyer’s ported hearing right no at all his ear. so she scheduled a visit Jose Trevi- later, audiologist David Lewis days years no for two later. Trevino found that Two healed, audiogram another on Zent- performed the middle-ear infection had but found that re- diagnosed Zentmyer suffering as still from and also ported right no in his ear. How- an outer-ear infection and ever, Elocon, responses, suspicious be antibiotics Biaxin and each to hearing test Lewis conducted a second daily. taken twice [Zentmyer’s which “did not reveal that 1995, 11, May May jail depu- From 6 is bad as Mr. hearing] ties administered the amounts claiming.” days.2 of Biaxin and Elocon on five of six 1997, 1995, 22, 11, Zentmyer sued the May Zentmyer transferred to On On 42 court under County jail temporary defendants district the Kane detain- he denied claiming 1983 was May until a 16 to a State of U.S.C. ment transfer in violation of his screening, adequate medical care prison. During Illinois medical loss, Amendment Eighth and Fourteenth report any hearing did not Zentmyer argued that as a result County jail rights. doctor noted the Kane deliberate indifference and recom- of the defendants’ Zentmyer’s outer-ear infection administering properly, his medication that he continue his medication. mended both May prescribed two doses of Zentmyer received of each on received the one dose remaining days p.m. appointment Biaxin and Elocon on all the 6 4:20 with Trevi- after his 7, May only one dose except when he received and of each on 11 before his no one dose midday discharge jail. of each. 810 exactly rendered “useless” and cation constituted de
the medication
“totally
right
dead”
ear.
medical
a
liberate indifference to serious
he sustained
immediately
court
dismissed
the district
The district
needs. We review de novo
claims,
-Amendment
Zentmyer’s Eighth
grant
summary judgment
court’s
1998,
22,
granted
justifiable
all
infer
and on December
draw
reasonable and
summary judgment
party
motion for
non-moving
defendants’
ences
favor of the
Zentmyer.
Liberty
Fourteenth Amendment
See Anderson v.
Lob
Inc.,
242, 255,
477
106
by,
claims.
U.S.
S.Ct.
(1986);
811 deputies indif plained in Farmer “deliberate the medication must something more than mere constantly applied ference entails be or else be rendered Farmer, 836, useless, 114 511 U.S. at negligence.” admits that none of 1970; Pope Shafer, also v. 86 S.Ct. see any pus, discharge the defendants noticed (7th Cir.1996); 90, 92 Williams v. F.3d physical signs injury or other of from his (7th 320, Cir.1995); O’Leary, 55 F.3d 324 ear A string negligent infection. of acts Am., Corp. v. 191 Giron Corrections plaintiffs exposure can evidence a a (10th Cir.1999). 1281, F.3d 1286 For ex prison serious risk and a official’s aware- Choi, ample, Steele 82 F.3d 178 exposure, “showing ness of such delib- (7th Cir.1996), prison not doctor was through pattern erate indifference indifferent, deliberately assuming even neglect heavy Dunigan entails a burden.” minimally competent that a doctor would Nyman ex rel. v. Winnebago County, 165 identify have been able to and treat (7th Cir.1999). F.3d 591 Further- circumstances, injury plaintiffs under the more, liability under 1983 arises subjectively because he aware plaintiff when the can show that the defen- this plaintiffs medical needs. Under “personally responsible dant was for a de- standard, prison “a cannot be found official privation right.” of constitutional Vance ... for an inmate humane denying hable Peters, 992 offi conditions of confinement unless the present does not evidence that disregards an excessive cial knows any individual defendant failed to adminis- the official safety; risk to inmate health many ter so doses that the defendant’s must both be aware of facts from which actions themselves instantiate deliber- the inference could be drawn that a sub indifference, Zentmyer allege ate nor does exists, risk of serious harm and he stantial any agreement among the defendants to Farmer, draw the inference.” must also Instead, deprive him of medical care. at U.S. S.Ct. Zentmyer argues that he missed some deputies collectively medication and the prohibition cites Court’s responsible it. administering were for “intentionally interfering in Estelle on Estelle, prescribed,” the treatment once deputies’ dispense The failure to Zent- at and claims U.S. S.Ct. myer’s consistently on schedule they that the are liable because disregard does not manifest conscious collectively did not follow the doctors’ or- Zentmyer’s They responded to health. in dispensing ders his medication. Zent- Zentmyer’s complaints and administered *7 points out that total he missed five according most of his medication to sched- pills thirty pills pre- of Amoxicillin of .out him deputies gave painkillers ule. The at days; twenty-six appli- scribed over eleven day twenty days least twice a eighty applica- cations of Otocort out of prescrip- 130 of administered 97 of doses prescribed twenty days; tions over prescribed. tion as medication schedule one dose each of Biaxin and Elocon out of total, In deputies administered medi- ten doses for each over six cation of various forms to 162 days. twenty days April 22 to times over from
However, 11, by not was treated does any professionals deputies contend that of the named as medical and received antibi- painkillers defendants knew that otics and for a might regularly suf month. Indeed, injury missing fer serious that Zent- Trevino concluded fact, In myer’s doses of medication. there is no middle-ear infection had healed any deputy thought missing promptly deputies’ evidence that under the care. Based us, jail doses of medication for an ear the record before each of several infection on injury guards occasionally would cause a serious or loss of failed to administer hearing. knowledge that The doctors did not communicate doses of medicine without
812
prop
Lastly, the district court
might result
from
consequences
serious
treating
an ear-
diligence
erly
summary judgment for Com
granted
their lack of
dispense medication ex-
Failing
Zentmyer’s
Hawkins on
Four
ache.
mander
may
negli-
constitute
actly
liability,
claim. For
a
teenth Amendment
States, 91 F.3d
v. United
gence, see Jones
know
supervisor “must
about the conduct
(3d Cir.1996),
623,
presence
but “the
625
it,
it,
it,
approve
and facilitate
condone
negligence merely
is
evi-
multiple acts of
eye,”
turn a blind
so Hawkins can be liable
theory
an alternative
dentiary;
it is not
supervisor only Zentmyer
if
demon
Henman,
41
F.3d
liability.” Sellers
medi
constitutionally
strates that
deficient
(7th Cir.1994).
depu-
that the
1103
Given
cal care occurred at Hawkins’s direction or
ties knew
suffered
knowledge
Gentry
with his
and consent.
infection,
deputies
were
from an ear
(7th
Duckworth,
561
65 F.3d
Cir.
that deliberate indiffer-
neglectful
not so
1995). Zentmyer’s attorney telephoned
apparent
alleged.
under the facts
ence
Zentmyer’s
Hawkins about
earache and
County
Plymouth
Mahan v.
House
See
treatment,
investigated
but Hawkins
Cir.1995)
(1st
Connections,
18
complaint
and was told
three
prescrip-
(finding that failure to administer
receiving
tion medication did
constitute deliber-
circumstances,
prescribed. Under
pris-
indifference
evidence that
ate
absent
reasonably
deputies’
Hawkins
believed his
plaintiff
on officials knew the
would suffer
reports and otherwise had no involvement
without
consequences
serious medical
with
medical care.
medication).
prison
officials
say
This is not to
III. Conclusion
may
judgments
substitute their
for medi
reasons,
foregoing
For
we
AffiRM
professional’s prescription.
cal
Of course
court granting
the decision of
district
McGovern,
they cannot. See Ralston v.
summary judg-
the defendants’ motion for
(7th
Cir.1999);
F.3d
Johnson v.
ment.
If
Hay, 931 F.2d
consciously
disregard
a defendant
chose to
Wood,
P.
Judge,
Diane
Circuit
in the
nurse or doctor’s directions
face
concurring
part
dissenting
part.
risks,
may
medical
he
well have ex
then
necessary
hibited the
indiffer
deliberate
agree
correctly
I
that the district court
ence. But deliberate indifference is an
dismissed Brian
1983 action
plaintiff,
onerous standard for
and for
respect
except
to all of the defendants
medicine,
getting doses of
however incom Deputy
respect
Chris Pfister. With
petent,
it
enough
is not
to meet
here.
him, however,
disputed
I find
issues offact
Zentmyer cites several cases from other
require
proceed
this case to
to trial.
circuits decided
Estelle and Farmer
before
I
respect
therefore dissent with
finding
that denial of
medi
disposition
single
of that
claim.
cation,
priva
when combined with other
*8
Construing the record
favor of Zent-
tions,
prisoner’s
violated a
substantive due
myer, as we must on this review of sum-
process rights.
of
hold
None
these cases
mary
majority
I
judgment,
agree with the
that failure to administer medication exact
question
raised a material
ly
prescribed
without additional exacer
of fact as to whether he suffered a serious
bating hardships
Eighth
violates the
doctors,
need.
Dr.
medical
Two
Gaddam
Fourteenth
Campbell
Amendment. See
Kramer,
Beto,
(5th Cir.1972);
Zentmyer’s
and Dr.
testified
not treat him too well. Pfister then added “[Zentmyer] received a lot of medi-