United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
Shane Gressel is proceeding on claims that dentist James
Thorpe, dental assistant Kathryn Lovell, health services unit
manager Karen Anderson and warden Michael Meisner failed to
provide Gressel appropriate dental care while he was
incarcerated at the Columbia Correctional Institution, in
violation of the Eighth Amendment. Three motions are before
the court: (1) defendants' motion for summary judgment,
Dkt. 20; (2) Gressel's “motion for leave to file
affidavit instanter, ” Dkt. 34; and (3) defendants'
motion to strike that affidavit, Dkt. 35.
court will deny defendants' motion for summary judgment
as it relates to Gressel's claims that Thorpe and
Anderson needlessly delayed dental care. Gressel alleges that
he was suffering from significant pain, bleeding, and other
serious symptoms and that he complained to both Thorpe and
Anderson about those symptoms. Anderson took no action on
some of Gressel's complaints and Thorpe failed to
schedule a prompt appointment or prescribe pain medication
while Gressel waited for treatment. Because neither defendant
explains the inaction, a reasonable jury could find that they
were deliberately indifferent to a serious medical need.
court will grant defendants' summary judgment motion as
to all other claims and defendants. Although the treatment
Thorpe eventually provided Gressel may not have resolved all
of his symptoms, the undisputed evidence shows that Thorpe
used sound medical judgment in deciding how to treat Gressel,
which is all that the Eighth Amendment requires.
Gressel's claims against the remaining defendants fail
because he has not adduced evidence showing either that they
were sufficiently aware of his condition to trigger a duty to
act or that they had the expertise, authority, or ability to
court can resolve the other two motions summarily. Gressel
asks for permission to file a new declaration, but the
information in that declaration relates primarily to symptoms
Gressel allegedly suffered as a result of not receiving
proper dental care. That information is already part of the
record and the little information that is new is not material
to deciding defendants' summary judgment motion. Thus,
although the declaration is late, the court will grant the
motion because the court sees no unfair prejudice to
defendants in allowing it and the court will deny
defendants' motion to strike.
setting out the undisputed facts, the court notes some
problems with both sides' proposed findings of fact.
First, Gressel objected to many if not most of
defendants' proposed facts on improper grounds. For
example, in response to a particular fact, Gressel often
stated that he “object[ed]” or
“disput[ed]” a fact “to the extent”
that it “implie[d]” that Gressel received
adequate care or that defendants acted appropriately, Dkt.
32, ¶¶ 6-13, 16-19, 21- 26, 34-37, 39, 41-45, 47,
50-51, 53, 55, 59-65, 67-68, 70, 75, 79, 84, 86-87, 94, 100,
and 101-02, but he either did not cite any contrary evidence
or he cited the same two allegations from his verified
complaint, neither of which were responsive to most of the
facts at issue. The court's procedures make it clear that
a party may dispute a proposed fact either by
“stat[ing] [his] version of the fact and cit[ing]
evidence that supports that version” or by raising an
evidentiary objection. Dkt. 15, at 12. A party may not simply
object to what he believes the proposed fact
“implies.” The court disregarded any objections
or disputes that did not comply with the court's
many of defendants' proposed findings of fact rely on
documentary evidence, such as medical records, grievances,
and letters. But defendants consistently supported their
proposed facts, not with citations to those documents, but
with declarations in which the witness summarized the
documents. Dkt. ¶¶ 27-28, 30, 32, 38, 41-44, 46,
52-53, 54, 66, 72-76, 78, 80-84, 88-89, and 95-99. This
practice violates the best evidence rule and can lead to
incomplete and even misleading proposed findings of fact.
Dugan v. R.J. Corman R. Co., 344 F.3d 662, 669 (7th
Cir. 2003) (“The meaning of quoted phrases often
depends critically on the unquoted context, and it is
therefore a bad practice (and will often and here violate
both the ‘best evidence' rule of Fed.R.Evid. 1002
and the ‘completeness' rule of Fed.R.Evid. 106) to
present trial excerpts from a key document without
introducing the document itself.”).
submitted the relevant documents along with their summary
judgment materials and the record in this case is relatively
small, so the court was able to locate the appropriate
documents without difficulty. But this court has admonished
the Wisconsin Department of Justice about this issue in
previous cases, e.g., Mathews v. Raemisch,
No. 10-cv-742, 2012 WL 12888031, at *2 (W.D. Wis. Feb. 23,
2012), Wilson v. Greetan, 571 F.Supp.2d 948, 952
(W.D. Wis. 2007), so it is not clear why the practice
endures. The court reminds counsel that the court may
disregard proposed findings of fact that are not properly
supported. Because this is a recurring problem, counsel
should forward a copy of this order to the Wisconsin
Department of Justice's director of the civil litigation
unit so that he can best determine how to stop the problem.
following facts are undisputed unless otherwise noted.
the events relevant to this case, Shane Gressel was a
prisoner at the Columbia Correctional Institution, which is
in Portage, Wisconsin. James Thorpe was a dentist at the
prison. Kathryn Lovell was Thorpe's dental assistant; her
duties included preparing equipment for examinations, taking
x-rays, scheduling appointments, and otherwise assisting
Thorpe. She did not make decisions about patient care. Karen
Anderson was the health services unit manager; she did not
provide direct care to prisoners or schedule dental
appointments and she did not have supervisory authority over
dentists. Michael Meisner was the prison warden.
Dental care practices
staff at the Columbia prison see patients two days a week.
(The parties do not explain why dental care is so limited.)
If a prisoner in the Wisconsin Department of Corrections
wants dental care, he may submit a dental service request.
The dentist reviews the request and determines the treatment
places prisoners on a “routine wait list” if they
request treatment for cavities, broken or cracked fillings,
restorative care, cosmetic work, or conditions that will not
result in a serious health risk if delayed. Thorpe places
prisoners on an “essential wait list” if a delay
in treatment “may result in advanced decay or
non-restorable teeth.” Dkt. 32, ¶ 12. Thorpe
considers infections, bleeding, continuous pain, and
“traumatic” fractures to be conditions that
require urgent or emergency care.
Gressel's dental care
April 27, 2011, Gressel filed a dental service request in
which he stated that a filling had fallen out of one of his
teeth and it was “giving [him] a lot of pain.”
Dkt. 30-1. As a result, staff placed Gressel on the essential
wait list and scheduled a “priority appointment.”
Dkt. 32, ¶ 15.
9, 2011, Thorpe met with Gressel for the first time. Thorpe
repaired the tooth with the lost filling and polished the
edges of several chipped or uneven teeth.
29, 2011, Gressel received a dental exam, a teeth cleaning,
and a dental x-ray from “Dr. Giswold” and a
hygienist. The records for this exam indicate that “a
potential need for future dental work on teeth ##2, 5, and
14.” Dkt. 32, ¶ 18. (Neither the records nor the
parties explain the potential problems with those teeth.) The
records also note a recommendation for a follow-up
appointment in 12 months. Thorpe had no involvement in the
June 29 appointment.
2012, Gressel submitted a dental service request in which he
said that he had a cavity and two cracked fillings. He also
complained that a molar was “giving [him] some pain,
” which he described as a “dull throb and
ac[he].” Dkt. 25-1, at 10. Thorpe instructed Kathryn
Lovell, his dental assistant, to add Gressel to the routine
August 2012, Gressel submitted another dental service
request, writing that he was in “dire need to have
[his] teeth cleaned/fixed” because he had
“constant headaches” as a result of fillings that
had cracked more than a year earlier. Dkt. 25-1, at 11.
Thorpe again placed Gressel on the routine wait list and
added him to the “teeth cleaning list” because it
had been more than a year since he had his teeth cleaned.
September 2012, Gressel wrote to Anderson, the health
services unit manager, about the failure of staff to provide
dental care or eye care. As to his dental care, Gressel wrote
that he had been waiting more than a year to receive
treatment for a cavity and several cracked fillings. He
complained about “serious pain” in his mouth and
various other symptoms. Dkt. 24-1, at 1.
was out of the office, so a nurse responded to the letter.
The nurse wrote that she had reviewed the schedule and
confirmed that Gressel was on the waiting list. But cracked
fillings and cavities were not considered to be a
“dental emergency, ” so they are not addressed
immediately. Id. at 3.
September 28, 2012, Gressel submitted a grievance about his
dental care in which he alleged that dental staff were
refusing to treat his cavity and cracked fillings and that he
was suffering from “serious pain” and bleeding.
Dkt. 24-3. An examiner recommended dismissal, but forwarded
the grievance to Anderson, who reviewed it. (Anderson does
not say how or whether she responded to the grievance).
October 7, 2012, Gressel submitted a dental service request
in which he complained that he was in “constant
pain” because of “headaches” from the
“[h]oles in [his] teeth.” Id. at 12.
Thorpe again placed Gressel on the routine wait list.
October 18, 2012, Gressel had an appointment with Thorpe.
Lovell assisted Thorpe during the appointment, but she did
not make any decisions about appropriate treatment. After
examining Gressel's teeth and reviewing x-rays, Thorpe
gave Gressel fillings in tooth #14 and tooth #20. He
determined that tooth #2 and tooth #5 did not require dental
work for the following reasons:
• he probed these teeth and determined that the depth of
the gum tissue was not significant enough to require further
• he flossed the teeth to make sure there was dental
contact between Gressel's teeth that was adequate to
prevent food from getting stuck;
• he used his explorer to determine whether there were
any “open margins, ” meaning that the tooth was
smooth and ...