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Gressel v. Thorpe

United States District Court, W.D. Wisconsin

September 18, 2017


          OPINION & ORDER


         Prisoner 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.

         The 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.

         The 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 help him.

         The 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.


         Before 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 procedures.

         Second, 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.”).

         Defendants 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.

         The following facts are undisputed unless otherwise noted.

         A. Parties

         During 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.

         B. Dental care practices

         Dental 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 priority.

         Thorpe 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.

         C. Gressel's dental care

         On 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.

         On May 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.

         On June 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.[2]

         In July 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 wait list.

         In 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.

         In 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.

         Anderson 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.

         On 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).

         On 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.

         On 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 treatment;
• 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 ...

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