United States District Court, E.D. Wisconsin
WILLIAM E. DUFFIN U.S. Magistrate Judge.
Javier Kleser, a Wisconsin state prisoner who is representing
himself, filed a complaint pursuant to 42 U.S.C. §1983,
alleging that his civil rights were violated. Judge J.P.
Stadtmueller (the judge assigned to the case at the time)
screened Kleser's complaint pursuant to 28 U.S.C
§1915A(a) and allowed him to proceed with his claim that
defendants Dr. Craig Rosenthal and Dr. Kenneth Luedtke were
deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment to the U.S. Constitution
when they failed to provide adequate treatment for his
injured tooth. The parties subsequently consented to the full
jurisdiction of this court, so, pursuant to General Local
Rule 73.1, the case was reassigned.
April 11, 2016, the defendants filed a motion for summary
judgment. That motion is now fully briefed and ready for the
facts in this section are primarily taken from
"Defendants' Proposed Findings of Fact." (ECF
No. 25.) Kleser did not respond to the defendants'
proposed facts in the form required by this district's
local rules; thus, the defendants' proposed facts are
admitted for the purpose of deciding summary judgment.
See Civil Local Rule 56(b)(4). That said, additional
facts are taken from Kleser's sworn amended complaint
(ECF No. 7) because the Court of Appeals for the Seventh
Circuit has instructed district courts to construe a sworn
complaint as an affidavit at the summary judgment stage.
Ford V. Wilson, 90 F.3d 245, 246-47 (7th Cir. 1996).
The facts are undisputed unless noted otherwise.
relevant times, Kleser was housed at Dodge Correctional
Institution, where Rosenthal and Luedtke were employed as
dentists. (ECF No. 25 at ¶3-4.) On February 14, 2015,
Kleser submitted a Dental Services Request form complaining
about pain in a tooth that had been filled several months
earlier. (Id. at ¶7.) Rosenthal reviewed
Kleser's request on Monday, February 16, 2015, the next
day that dental staff was on duty, and determined that Kleser
should be examined that same day. (Id. at ¶8.)
examination, Rosenthal examined Kleser's tooth #13, which
was a bicuspid located in the upper-left rear of Kleser's
mouth. (Id. at ¶9.) Rosenthal took an x- ray
and performed an examination, including percussion and cold
tests on the tooth. (Id.) The tests revealed "a
lack of vitality" in the tooth. (Id.) Based on
these tests, a review of Kleser's dental chart, and
Kleser's reported history, Rosenthal diagnosed a
"necrotic tooth" and prescribed medication for
Kleser to take every eight hours as needed for the pain.
necrotic tooth means that the nerve in the tooth is dead.
(Id. at ¶10.) If left untreated, a necrotic
tooth can get infected and develop an abscess, which can be
painful. (Id.; ECF No. 7 at 4.) The standard dental
remedy for a necrotic tooth is either to extract the tooth or
to perform a root canal, which is a dental procedure that
removes dead nerve tissues from the tooth. (ECF No. 25 at
¶10.) Typically, a root canal is performed by a dentist
with training in endodontics or by an endodontist, who is a
specialist. (Id.) If no infection has developed, a
patient may choose to take no action. (Id.)
was uncertain whether the tooth had a single root or multiple
roots. (Id. at ¶11.) This is important because
a root canal on a tooth with multiple roots is more
complicated and the risk of an unsuccessful procedure are
greater than a root canal on a tooth with a single root.
February 18, 2015, Rosenthal discussed the tooth with Luedtke
and scheduled an appointment with him for February 19, 2016,
to start the root canal in an attempt to save the tooth.
(Id. at ¶12.) At the appointment, Luedtke
informed Kleser that he had reevaluated the x-ray taken by
Rosenthal and determined that the tooth had multiple roots.
(Id. at ¶13.) Luedtke states that, based on his
clinical judgment and experience, he did not think it was
likely that a root canal procedure could be completed
successfully. (Id.) Although Luedtke understood
Kleser’s preference to preserve the tooth, Luedtke
informed Kleser that he would not do a root canal on the
tooth. (Id. at ¶13-14.) In light of the
resources available through the Department of Corrections
(DOC) and the complicated nature of the multiple roots,
Luedtke told Kleser that his options were to extract the
tooth or to do nothing about the tooth. (Id.) Kleser
chose to do nothing and declined to have the tooth extracted
at that time. (Id. at ¶14.)
February 2015, Kleser filed an inmate complaint stating that
root canals were not performed at Dodge and that Dodge did
not have the equipment to perform root canals. (Id.
at ¶15; ECF No. 7 at 5.) The defendants state that
Kleser’s complaints are not accurate. (ECF No. 25 at
¶15.) They explain that root canals are performed at
Dodge depending on the circumstances of the subject tooth.
(Id.) Further, under DOC policy DAI 500.40.06,
procedure IV, while root canal treatment is generally not
available for posterior teeth, the treating dentist may elect
to provide a posterior root canal based on his clinical
judgment. (Id. at ¶16; ECF No. 7 at 3.)
8, 2015, Kleser was seen by a dental hygienist. (ECF No. 25
at ¶18.) The records reflect no reports of problems, and
he was told to return in twelve months for an annual checkup.
(Id.) Kleser did not report a problem with the tooth
until September 2015, when the tooth became infected,
developed an abscess, and became painful. (Id. at
¶19.) On September 27, 2015, Kleser submitted a Dental
Service Request form, and Luedtke saw him the next day for a
triage appointment. (Id. at ¶20.) Based on
Kleser’s urging, Luedtke scheduled an appointment for
the next week to consider performing a root canal to save the
tooth. (Id.) In his notes, Luedtke stated that he
thought there was a poor prognosis for a successful root
canal procedure. (Id.) In the meantime, Luedtke
prescribed pain medication to address Kleser’s pain and
antibiotics for the infection. (Id.)
October 6, 2015, Kleser submitted a Dental Service Request
form because his medication had run out. (Id. at
¶21.) Luedtke tried to see Kleser that day, but he was
in segregation and unable to go to the appointment.
(Id.) Luedtke saw Kleser on October 13, 2015.
(Id. at ¶22.) By then, the abscess had become
more painful, and Kleser requested to have the tooth
extracted. (Id.) Luedtke extracted the tooth that
same day. (Id.)