Judges: Posner
Filed: Nov. 24, 2015
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2772 LESTER DOBBEY, Plaintiff-Appellant, v. JACQUELINE MITCHELL-LAWSHEA and MICHAEL DANGERFIELD, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 1739 — Robert M. Dow, Jr., Judge. _ SUBMITTED OCTOBER 29, 2015 — DECIDED NOVEMBER 24, 2015 _ Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. On January
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 14-2772 LESTER DOBBEY, Plaintiff-Appellant, v. JACQUELINE MITCHELL-LAWSHEA and MICHAEL DANGERFIELD, Defendants-Appellees. _ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 12 C 1739 — Robert M. Dow, Jr., Judge. _ SUBMITTED OCTOBER 29, 2015 — DECIDED NOVEMBER 24, 2015 _ Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges. POSNER, Circuit Judge. On January 7..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐2772
LESTER DOBBEY,
Plaintiff‐Appellant,
v.
JACQUELINE MITCHELL‐LAWSHEA and MICHAEL DANGERFIELD,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 1739 — Robert M. Dow, Jr., Judge.
____________________
SUBMITTED OCTOBER 29, 2015 — DECIDED NOVEMBER 24, 2015
____________________
Before WOOD, Chief Judge, and POSNER and EASTERBROOK,
Circuit Judges.
POSNER, Circuit Judge. On January 7, 2011, Lester Dobbey,
an inmate of Illinois’s Stateville prison, complained to a
medical technician that he had a loose tooth that was caus‐
ing him severe pain and required immediate medical atten‐
tion. He filled out an emergency request for treatment and
the technician wrote “abscess” on a form that referred him to
the prison infirmary for treatment. Jacqueline Mitchell‐
2 No. 14‐2772
Lawshea, a dentist who is one of the two defendants in Dob‐
bey’s suit, was on duty that day but claims not to have re‐
ceived the form, or otherwise to have learned of Dobbey’s
complaint, until January 12, when she wrote “reports ab‐
scess” on Dobbey’s medical chart and scheduled him to be
examined by her two days later. Although the defendants’
statement of uncontested facts says that she “was not re‐
sponsible for logging or scheduling appointments of offend‐
ers,” her affidavit states: “I logged and/or scheduled offend‐
er’s appointments.” And in response to the plaintiff’s state‐
ment of facts she admitted that she’d scheduled Dobbey’s
January 14 appointment.
Dobbey showed up on schedule on January 14 only to be
told by a guard—the other defendant, Michael Danger‐
field—that the appointment had been cancelled; no reason
was given. Dobbey told the guard that he was in pain,
showed him his infected tooth, and asked to be allowed to
remain in the infirmary’s waiting area until someone ap‐
peared who could prescribe pain medication for him. Dan‐
gerfield told Dobbey that he could not linger in the waiting
area and anyway that guards had arrived to take him back
to his prison cell.
One might have expected Mitchell‐Lawshea, who as a
dentist was surely aware of the dangers created by an un‐
treated tooth abscess, to have kept her appointment with
Dobbey or at least have seen him the next day. She has given
no explanation for her apparent dawdling—and we know
that at least four people, including her, were working in
Stateville’s dental office on January 14. Instead of seeing him
or asking one of the other members of the dental office staff
to see him, she rescheduled his appointment for January
No. 14‐2772 3
25—eleven days later. On January 20, with his abscessed
tooth still untreated even by pain medication, Dobbey was
taken from his cell to the prison infirmary complaining of
stomach pains, vomiting, and fever. He was released in time
for his dental appointment but the appointment was again
postponed, till the 28th, because Dobbey’s cell had been
changed. Why that should have affected his dental appoint‐
ment is another unexplained feature of this case. On January
28 he was at last examined by Mitchell‐Lawshea—16 days
after she’d learned he was complaining of a tooth abscess.
She diagnosed an abscessed molar and prescribed penicillin
and on February 3, the penicillin having brought the infec‐
tion under control, she extracted the molar.
Dobbey’s suit charges the defendants with deliberate in‐
difference to his abscess. “Deliberate indifference” to a pris‐
oner’s serious medical needs is held to be a violation of the
cruel and unusual punishments clause of the Eighth
Amendment, a clause made applicable to state officials and
employees by interpretation of the Fourteenth Amendment’s
due process clause. Estelle v. Gamble, 429 U.S. 97, 101, 104
(1976). The decision of a medical professional to do nothing,
even though she knows that a patient has a serious medical
condition requiring prompt treatment that the professional
is capable of and responsible for providing, amounts to de‐
liberate indifference. Any minimally competent dentist who
knows that a patient has reported an abscess also knows that
if the report is correct the patient needs prompt medical
treatment. A dentist demonstrates deliberate indifference by
failing to treat the patient promptly, thus prolonging the pa‐
tient’s pain, while knowing that the patient may well be in
serious pain that is treatable. And a guard who is aware of
complaints of pain and does nothing to help a suffering
4 No. 14‐2772
prisoner obtain treatment is likewise exhibiting deliberate
indifference. He knows the prisoner may be suffering and
knows whom to call to attend to the matter. His failure to do
so cannot be excused on grounds of cost or danger of acting,
see, e.g., Johnson v. Doughty, 433 F.3d 1001, 1011–13 (7th Cir.
2006); Berry v. Peterman, 604 F.3d 435, 440–41 (7th Cir. 2010),
as there is neither cost nor danger.
In granting summary judgment in favor of the defend‐
ants, the district judge failed to appreciate the gravity of a
tooth abscess or attach sufficient weight to the slack re‐
sponse of prison staff to Dobbey’s medical problem. A tooth
abscess is not a simple toothache. It is a bacterial infection of
the root of the tooth, and it can spread to the adjacent gum
and beyond—way beyond. It is often painful and can be
dangerous. Loss of the tooth is common, though can some‐
times be prevented by prompt detection and treatment of
the abscess. Dobbey does not connect his abdominal woes to
the abscess, but he may well not have known that stomach
pain, nausea, and vomiting are common consequences of a
tooth abscess and so may have been caused or aggravated by
his abscess.
Because the bacteria in an abscessed tooth can spread to
other vital organs and even cause death, prompt treatment is
imperative. The district judge remarked that the prison den‐
tist may not have realized that Dobbey had a “serious” ab‐
scess. Any tooth abscess is serious; any dentist knows that.
Dobbey did not receive prompt treatment; he received a se‐
ries of runarounds, experienced weeks of pain, and lost the
tooth. The critical question is whether the botched treatment
can be ascribed to deliberate indifference by the two defend‐
ants—the dentist and the guard—or was merely negligence,
No. 14‐2772 5
in other words malpractice, which is not a violation of the
Eighth Amendment.
No reason has been given for the dentist’s having waited
two weeks before examining Dobbey. If a jury credits Dob‐
bey’s allegations, all the requirements of deliberate indiffer‐
ence will have been satisfied by that delay. Mitchell‐
Lawshea would have known that Dobbey had a serious
medical problem that was within her professional
knowledge and experience to solve. She would have known
that the problem would get worse the longer treatment was
delayed and that Dobbey would suffer acutely until the ab‐
scess was treated.
Obviously the guard can’t be faulted for being unable to
treat an abscessed tooth, but he can be for not having report‐
ed Dobbey’s complaints to the dentist, or perhaps to some‐
one else on the prison’s medical staff, who could alleviate
Dobbey’s pain—even if it was just the prison pharmacist, or
the medical technician to whom Dobbey had first turned.
See Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011); John‐
son v. Doughty, supra, 433 F.3d at 1010–11.
Prison guards have a responsibility for prisoners’ wel‐
fare. If a prisoner is writhing in agony, the guard cannot ig‐
nore him on the ground of not being a doctor; he has to
make an effort to find a doctor, or in this case a dentist, or a
technician, or a pharmacist—some medical professional.
Dangerfield made no effort. He argues that he had no re‐
sponsibility in the matter because Dobbey was under the
care of a physician, but Dobbey was under no one’s care.
Suppose a person collapses on the street after being ar‐
rested. The arresting officer asks him whether he’s under the
6 No. 14‐2772
care of a physician. And he says “yes, and could you call
him for me?” If the officer replied that “since you’re under
the care of a physician I’m not going to do anything to help
you,” he would be guilty of deliberate indifference. Accord‐
ing to Dobbey he had asked Dangerfield, “can I see a nurse
or somebody to look at my mouth to try to get something for
my mouth because it was paining and swollen,” and Dan‐
gerfield had replied, “No, partner, your ride is here,” mean‐
ing that an officer had arrived to escort Dobbey back to his
cell. That was on January 14. Not until two weeks later did
the dentist examine Dobbey.
On the record compiled to date, the evidence of deliber‐
ate indifference by the two defendants to a serious medical
need precludes granting summary judgment in their favor.
We therefore remand the case to the district court for further
proceedings consistent with the analysis in this opinion. We
suggest that the district judge recruit counsel to assist Dob‐
bey and perhaps exercise authority, conferred on him by
Fed. R. Evid. 706, to appoint a neutral expert witness to ad‐
vise on the medical issues presented by the case.
REVERSED AND REMANDED