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 middleear 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 goround 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.