In the
United States Court of Appeals
For the Seventh Circuit
No. 11-2897
R ICHARD M. S MEGO ,
Plaintiff-Appellant,
v.
JACQUELINE M ITCHELL, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 08-3142—Harold A. Baker, Judge.
S UBMITTED D ECEMBER 5, 2012—D ECIDED JULY 19, 2013
Before R OVNER, W ILLIAMS, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. Under 42 U.S.C. § 1983, plaintiff
Richard Smego, a civil detainee at the Rushville Treat-
ment and Detention Center in Illinois, sued a dentist,
two doctors, and a dental hygienist for violating his
After examining the briefs and record, we have concluded that
oral argument is unnecessary. Thus the appeal is submitted
on the briefs and record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 11-2897
constitutional rights by acting with deliberate indifference
to his serious dental problems. The district court granted
summary judgment for the defendants. We conclude
that Smego offered sufficient evidence for a jury to find
that three of those defendants violated his constitutional
rights, so we vacate the judgment in part and remand
for further proceedings.
We review the facts in the light most favorable to
Smego. See Foskett v. Great Wolf Resorts, Inc., 518 F.3d 518,
522 (7th Cir. 2008). In December 2005, Smego agreed to
be civilly committed by the State of Illinois under the
Sexually Violent Persons Commitment Act, 725 ILCS
207/1–99. During the intake process, he was seen by
defendant Dr. Jacqueline Mitchell, a dentist who
contracts with Wexford Health Sources, Inc. Dr. Mitchell
examined Smego and found that twelve teeth had cavi-
ties. All of those cavities, she said, were repairable,
and she promised to begin filling them in early 2006.
Yet she never followed through. Throughout 2006,
Smego’s cavities worsened and his teeth became
painful, but he was not summoned for a follow-up ap-
pointment with Dr. Mitchell. During that year he
made healthcare requests for other, unrelated medical
issues, but he did not submit one about his teeth. He
would testify later that he believed healthcare requests
were intended only for new problems and were not
necessary for problems already known to medical staff.
In February 2007, Smego was on his way to an appoint-
ment with Rushville’s optometrist when he encountered
defendant Kelly Lawshea, a Wexford dental hygienist
No. 11-2897 3
who worked with Dr. Mitchell. Believing that Lawshea
played a role in scheduling Dr. Mitchell’s appointments,
Smego asked why he had never been called for the fol-
low-up appointment. According to Smego, Lawshea
responded that the suction machine was inoperable
and that Dr. Mitchell could not work on his teeth without
it. Smego told her that he was in pain and needed to see
Dr. Mitchell, but Lawshea warned that being a “pest”
would not help him get an appointment.
Smego eventually saw Dr. Mitchell on June 24, 2007,
eighteen months after she had told him about his cavities
and said she would see him again soon to take care of
them. But during that visit and another on July 1, she put
off doing any work on his teeth, both times explaining
through Lawshea that she did not have the necessary
“supplies.” Dr. Mitchell finally commenced treatment
on July 23, but for only one of Smego’s affected teeth.
When he arrived for this appointment, Smego had told
her that a molar — tooth #2 on the dental numbering
system — was very painful. But Dr. Mitchell ignored
that tooth and instead installed a temporary filling on a
different tooth, #31. She did not work on Smego’s re-
maining teeth, and there is no evidence in the record
that she prescribed anything for his dental pain.
Dr. Mitchell next saw Smego a month later, and this time
she turned to tooth #2. Instead of filling the cavity, how-
ever, she declared the tooth unsalvageable and extracted it
after persuading Smego to sign a consent form. On this
visit Dr. Mitchell prescribed a painkiller, Motrin, but
Smego could not take it because he is allergic. The medica-
4 No. 11-2897
tion causes hives and painful swelling in his face. At the
time, this allergy was noted on the dental chart
Dr. Mitchell used to track Smego’s treatment.
After this Dr. Mitchell again failed to follow through.
Despite having treated teeth #2 and #31, she did not
address the ten others with cavities. Smego continued
experiencing significant dental pain, and in Novem-
ber 2007 — almost two years after his dental issues
had first been identified — he began complaining to
his therapist about the pain. The therapist, who was
Smego’s designated liaison to the medical staff at
Rushville, sent an e-mail to Dr. Mitchell inquiring about
Smego’s status. Dr. Mitchell responded to this e-mail but
still did not see Smego for several more months. The
therapist also mentioned Smego’s difficulties receiving
dental care to Dr. Michael Bednarz, the medical director
at Rushville. He also contacted Dr. Mitchell, and although
he no longer recalls the specifics of their conversation,
he concluded that Smego was receiving satisfactory care.
During this gap in treatment following the extrac-
tion of tooth #2 — which would ultimately last nine
months — Smego was seen for an unrelated medical issue
by Dr. Hughes Lochard, a Wexford physician working
at Rushville. Smego said his teeth were in pain (he even
pulled back his lips to display a broken tooth) and ex-
plained his lack of success in getting Dr. Mitchell to
follow through. Dr. Lochard replied that he did not want
to get involved in dental issues, so instead he offered to
prescribe Motrin (despite Smego’s allergy) and “just
refused to budge” on prescribing a different medication.
No. 11-2897 5
Smego finally saw Dr. Mitchell again in early May 2008,
four days after he submitted a healthcare request com-
plaining that the “temporary” filling in tooth #31 — which
had remained in place for six months — had fallen out.
Dr. Mitchell installed another temporary filling and again
prescribed the Motrin that Smego could not take. A few
weeks later she scheduled more work on tooth #31 but
blamed broken equipment when she postponed the
procedure. Then in June 2008 — thirty months after
Smego’s initial examination — Dr. Mitchell placed perma-
nent fillings in tooth #31 and two adjoining teeth.
Three days after that last visit, Smego filed suit against
Dr. Mitchell, hygienist Lawshea, Dr. Bednarz, and
Dr. Lochard. (Smego also named three other defendants,
but he reached settlements with two of them and has not
appealed the dismissal of his suit against the third.) He
claimed that Dr. Mitchell deliberately ignored his
tooth decay and the pain it caused and coerced him
into permitting the extraction of tooth #2. Smego named
Lawshea as a defendant because he thought she was
responsible for scheduling Dr. Mitchell’s patients and
for keeping the dental office stocked with supplies. He
named Dr. Bednarz and Dr. Lochard, he said, because
they knew about his difficulties with Dr. Mitchell but
had refused to issue a medical writ that would have
allowed him to seek dental care outside of Rushville.
In granting summary judgment, the district court
observed that Smego had not submitted any healthcare
requests about his teeth during 2006 or 2007. The court
concluded that Dr. Mitchell had not known about the
6 No. 11-2897
painful condition of Smego’s teeth and could not have
been deliberately indifferent to his need for treatment.
The court also concluded that Smego’s evidence would
not establish that Dr. Mitchell had deliberately ignored
his Motrin allergy. But the district court did not address
Smego’s testimony that he personally had told not only
Dr. Mitchell but also his therapist and Dr. Bednarz
about his pain. The court also failed to acknowledge
that Dr. Mitchell has never denied knowing about the
condition of Smego’s teeth and related pain or that his
concerns had been conveyed by Dr. Bednarz and
the therapist.
As for the other defendants, the district court said
nothing about Smego’s allegation that Lawshea, the
dental hygienist, had warned him not to be a “pest” when
he told her that he was in pain and needed to see
Dr. Mitchell. Instead the court declared that Lawshea’s
failure to schedule Smego for dental treatment had
been negligent at most. The court also declared that she
could not be blamed for supplies shortages because
she lacked authority to do anything more than place
orders and hope for delivery. As for Dr. Bednarz and
Dr. Lochard, the district court concluded that both had
deferred to Dr. Mitchell’s medical decisions and so
neither had been deliberately indifferent. The court added
that Smego had failed to introduce evidence that
Dr. Bednarz had the ability to secure dental supplies or
compel Dr. Mitchell to refer Smego to an outside dentist.
On appeal Smego asks that we reverse the grant of
summary judgment for the defendants. Although as a
No. 11-2897 7
civil detainee Smego’s claim of deliberate indifference is
derived from the Due Process Clause of the Fourteenth
Amendment, the protection afforded him is functionally
indistinguishable from the Eighth Amendment’s protec-
tion for convicted prisoners. See King v. Kramer, 680
F.3d 1013, 1017 (7th Cir. 2012) (pretrial detainee); Brown
v. Budz, 398 F.3d 904, 910 (7th Cir. 2005) (civil detainee).
To establish a claim of deliberate indifference based on
the denial of medical care, the plaintiff must show both
an objectively serious medical condition and the defen-
dant’s deliberate indifference to that condition. Farmer
v. Brennan, 511 U.S. 825, 835 (1994); King, 680 F.3d at
1018; Arnett v. Webster, 658 F.3d 742, 750 (7th Cir. 2011).
The defendants do not dispute that Smego’s tooth decay
and the pain it caused constituted serious medical condi-
tions. See McGowan v. Hulick, 612 F.3d 636, 640 (7th Cir.
2010); Berry v. Peterman, 604 F.3d 435, 440 (7th Cir. 2010).
We disagree with the district court’s conclusion that a
jury could not reasonably find that Dr. Mitchell was
more than negligent in failing to spare Smego thirty
months of serious dental pain by providing the treat-
ment that she herself had already decided was neces-
sary. A jury could conclude that Dr. Mitchell “fail[ed] to
act in the face of an unjustifiably high risk of harm that
is either known or so obvious that it should be
known.” Farmer, 511 U.S. at 836; see also Arnett, 658 F.3d
at 751. Dr. Mitchell knew in 2005 that Smego had cavities
in twelve teeth and promised to begin working on
them very soon. That promise is itself circumstantial
evidence of the need for rapid treatment. Rushville also
had a policy requiring annual dental exams. Yet after that
8 No. 11-2897
initial examination and promise of prompt treatment,
she provided no treatment for well over a year. When
faced with purported supply shortages or equipment
breakdowns, she repeatedly delayed treatment despite
her authority to simply send Smego to an outside den-
tist. When the supplies came in, she ignored his complaint
about the pain in tooth #2 (a tooth she had diagnosed as
having a cavity over twenty months earlier), did not
prescribe him painkillers, and waited a full month before
seeing him again and extracting the tooth. And during this
litigation, which has been going on now since 2008, Dr.
Mitchell admitted that even five years after she had diag-
nosed Smego’s cavities she still had not begun treating at
least two of them. Thus, there is ample evidence that
Dr. Mitchell knew about Smego’s tooth decay and pain
from her personal contact with him, as well as from her
conversations with his therapist and Dr. Bednarz. Smego’s
allegations of untreated dental pain echo those that
recently led us to reinstate another inmate’s civil rights suit
against Dr. Mitchell and another dentist. See Gevas v.
Mitchell, No. 11-2740, 2012 WL 3554085 (7th Cir. Aug. 20,
2012).
Moreover, a jury could conclude that what little treat-
ment Dr. Mitchell did provide Smego for his pain was
clearly inappropriate. See Arnett, 658 F.3d at 751. After
extracting tooth #2, Dr. Mitchell prescribed Motrin,
which Smego’s dental chart discloses he cannot take. She
did the same thing again shortly before Smego sued and
even after he filed his complaint. Moreover, the latter
incident occurred after Smego had submitted a healthcare
request reminding Dr. Mitchell that he is allergic to
No. 11-2897 9
Motrin and asking for a different drug. Although one
might doubt Smego’s account of doctors who
repeatedly prescribed medication that he could not take
because of an allergy, he actually is not the first person to
claim that a Wexford physician repeatedly prescribed
ibuprofen (the active ingredient in Motrin) despite a
known allergy. See Olive v. Wexford Corp., No. 11-3005,
2012 WL 53228016 (7th Cir. Oct. 31, 2012).
Our criticisms of defendants thus far make this an
appropriate point to remind a reader that we are
reviewing a grant of summary judgment, so that we
must accept Smego’s testimony about the course of his
treatment or the lack of it. Nevertheless, defendants
moved for summary judgment and invited such harsh
review of their actions and inactions.
Perhaps some of Dr. Mitchell’s alleged conduct, standing
alone, could be regarded simply as negligence. But a
reasonable jury could look at this pattern and infer de-
liberate indifference, particularly because Dr. Mitchell
offered no medical justification for the long delays in
treatment or her refusal to prescribe appropriate pain
medication. Dr. Mitchell cannot avoid liability simply
by pointing to Smego’s hesitancy to file healthcare re-
quests — a jury would be entitled to believe Smego’s
testimony that healthcare requests were not supposed to
be used for medical conditions that already were known
to the medical staff. And although Dr. Mitchell avers
that “[t]o schedule an appointment, a resident must file
a request form,” it appears from the record that Smego
met several times with Dr. Mitchell without filing one.
10 No. 11-2897
We also conclude that remand is appropriate for the
claim against Ms. Lawshea. Although we agree with the
district court that Smego cannot establish deliberate
indifference based upon Ms. Lawshea’s failure to
schedule his appointments and obtain supplies, her
involvement did not end there. Even personnel who are
not doctors are not permitted simply to ignore a detainee’s
plight, King, 680 F.3d at 1018; Rice v. Corr. Med. Servs., 675
F.3d 650, 679 (7th Cir. 2012), nor can they deliberately
obstruct or delay a patient from receiving necessary
treatment, see McGowan, 612 F.3d at 640–41 (noting that
doctors can be deliberately indifferent when they delay
or deny access to a specialist).
Ms. Lawshea was in a position at least to bring
Smego’s pain and difficulty obtaining treatment to
Dr. Mitchell’s attention, but she did not. What she did
instead was tell Smego not to be a “pest.” A jury could
conclude that this warning discouraged Smego from
taking more aggressive steps to receive treatment from
the dental office, a particularly serious obstruction if the
jury chooses to believe Dr. Mitchell’s statement that a
detainee could not obtain an appointment without filing
a healthcare request. (A jury could also conclude that
Ms. Lawshea’s “pest” warning tends to bolster Smego’s
testimony about why he did not submit any further
healthcare requests.)
We also conclude, on the other hand, that Smego
failed to offer sufficient evidence against Dr. Bednarz to
support a finding that he was deliberately indifferent.
Smego argues that a jury could conclude that Dr. Bednarz’s
No. 11-2897 11
failure to obtain supplies for the dental unit or to
issue a medical writ for outside treatment constituted
deliberate indifference. But there is no evidence in the
record that Dr. Bednarz had control over the dental
unit’s purported problems with supplies and broken
equipment. And as the district court correctly noted,
Dr. Bednarz did not ignore Smego’s problem. He con-
tacted Dr. Mitchell and obtained assurance — whether
truthful or not — that Smego was receiving appropriate
treatment. Doctors may rely on the representations
of their colleagues absent clear evidence that those repre-
sentations are known to be false. See King, 680 F.3d
at 1019–20. There is no evidence in the record that
Dr. Bednarz ever examined Smego’s teeth, and in any
event, he is not a dentist, so his decision to rely on
Dr. Mitchell’s explanation was, at worst, negligent.
We reach the opposite conclusion regarding Dr. Lochard,
who unlike Dr. Bednarz had examined Smego’s painful
teeth and cannot claim ignorance about the lack of treat-
ment. The district court concluded that Dr. Lochard was
entitled to defer all dental decisions to Dr. Mitchell.
This belief that Dr. Lochard could meet his constitutional
obligation to Sm ego sim ply by ignoring his
untreated dental concerns is mistaken. Smego had told
Dr. Lochard both that he was in pain and that he was
unable to get necessary treatment from Dr. Mitchell. But
unlike Dr. Bednarz, who investigated the problem by
contacting Dr. Mitchell, there is no evidence in the
record that Dr. Lochard ever contacted Dr. Mitchell,
Dr. Bednarz, or Smego’s therapist to see why Smego
could not get dental care. That Dr. Lochard is not
12 No. 11-2897
himself a dentist is beside the point; even non-medical
personnel cannot stand by and ignore a detainee’s com-
plaints of serious medical issues. E.g., Berry, 604 F.3d at
441. Moreover, Dr. Lochard did not defer entirely to
Dr. Mitchell. He prescribed Motrin despite the availability
of substitutes and knowledge of Smego’s allergy. A
physician is deliberately indifferent when he persists in
an ineffective treatment — and prescribing painkillers
that cause a patient to experience pain certainly meets
this standard — for a serious condition. See Gonzales v.
Feinerman, 663 F.3d 311, 314 (7th Cir. 2011); Arnett, 658
F.3d at 754.
Accordingly, we V ACATE the grant of summary judg-
ment in favor of Dr. Mitchell, Ms. Lawshea, and
Dr. Lochard and R EMAND the case for further pro-
ceedings on Smego’s claim of deliberate indifference
against those defendants. In all other respects we A FFIRM
the judgment.
7-19-13