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Kleser v. Rosenthal

United States District Court, E.D. Wisconsin

July 22, 2016



          WILLIAM E. DUFFIN U.S. Magistrate Judge.

         Corey 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.

         On April 11, 2016, the defendants filed a motion for summary judgment. That motion is now fully briefed and ready for the court's decision.


         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.

         At all 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.)

         At the 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. (Id.)

         A 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.)

         Rosenthal 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. (Id.)

         On 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.)

         In late 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.)

         On July 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.)

         On 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.)

         I. SUMMARY ...

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