United States District Court, W.D. Wisconsin
LEROY K. KUHNKE, Plaintiff,
RANDAL G. STELZNER, DALIA SULIENE, VICKI WALKER, LILLIAN TENEBRUSO, PAUL KETARKUS, MEREDITH MASHAK, and KIM JOHNSON, Defendants.
D. PETERSON, District Judge.
Leroy Kuhnke, a prisoner incarcerated at the Columbia
Correctional Institution, brings this lawsuit alleging that
defendant prison officials failed to properly treat his
dental emergency and maintained staff and emergency-care
policies that led to this failure. There are currently
several motions before the court.
Exhaustion and sanctions
alleges that in October 2010, when he suffered from
excruciating pain from an abscessed tooth, defendants
improperly diagnosed him, failed to seek emergency treatment,
delayed in getting him treatment, prescribed inadequate
medication, pulled his tooth against his wishes for a less
invasive procedure and without providing him adequate pain
medication, and did not treat him further to restore the
missing tooth. He also brings official-capacity claims
against CCI staff for maintaining policies of understaffing
dental professional positions and failing to provide for
off-site treatment for dental emergencies.
filed a motion for summary judgment alleging that Kuhnke
failed to exhaust his administrative remedies for his claims.
Dkt. 20. Under the Prison Litigation Reform Act, “[n]o
action shall be brought with respect to prison conditions . .
. until such administrative remedies are exhausted.” 42
U.S.C. § 1997e(a). The exhaustion requirement is
mandatory and “applies to all inmate suits.”
Woodford v. Ngo, 548 U.S. 81 (2006); Porter v.
Nussle, 534 U.S. 516, 524 (2002). The exhaustion
requirement's primary purpose is to “alert[ ] the
state” to the problem “and invit[e] corrective
action.” Riccardo v. Rausch, 375 F.3d 521, 524
(7th Cir. 2004).
1997e(a) requires “proper exhaustion, ”
Woodford, 548 U.S. at 93; Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002), which
means that the prisoner must follow prison rules when filing
the initial grievance and all necessary appeals, “in
the place, and at the time, the prison's administrative
rules require.” Burrell v. Powers, 431 F.3d
282, 284-85 (7th Cir. 2005). “[A] prisoner who does not
properly take each step within the administrative process has
failed to exhaust state remedies.” Pozo, 286
F.3d at 1024.
exhaustion is an affirmative defense, defendants bear the
burden of establishing that Kuhnke failed to exhaust his
available remedies. Jones v. Bock, 549 U.S. 199, 216
(2007). At the summary judgment stage, they must show that
there is no genuine dispute of material fact and that they
are entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
initially contended that Kuhnke failed to fully exhaust any
of the three grievances he filed in 2010 about his treatment.
This includes grievance no. CCI-2010-22489, in which Kuhnke
raised the bulk of his claims about delay in treatment.
Kuhnke's appeal of the dismissal of that grievance was
dismissed as untimely: the corrections complaint examiner
stated that the appeal was received on November 15, 2010,
more than ten days past the November 1 decision by the
reviewer, which violated Wis. Admin. Code § 310.13
(“A complainant dissatisfied with a reviewing authority
decision may, within 10 calendar days after the date of the
decision, appeal that decision . . . .”). See
Dkt. 22-2. In support of their motion, defendants submitted a
declaration from DOC employee Cindy O'Donnell incorrectly
stating that Wis. Admin. Code § 310.13 requires an
inmate to file an appeal within ten business days of
the reviewer's decision. Dkt. 22, at 5. Kuhnke opposed
the exhaustion motion, arguing that neither ten business days
nor ten calendar days had passed because of weekends and
legal holidays, as well as the fact that he placed his appeal
in the prison mail stream on November 9, 2010, only eight
days after the reviewer's decision. Cf. Taylor v.
Brown, 787 F.3d 851, 858- 59 (7th Cir. 2015) (under
“mailbox rule, ” prisoner submission is deemed
filed with court when he gives submission to prison officials
reply, the state agrees that the exhaustion motion should be
denied as to this grievance because defendants cannot prove
the date on which Kuhnke mailed his appeal. So I will deny
this portion of the summary judgment motion, which means the
bulk of his claims will go forward.
has filed a motion for sanctions, contending that
O'Donnell's incorrect declaration stating that he had
ten “business” days to file his grievance appeal
was submitted in bad faith, requesting that defendants'
counsel be held in contempt for submitting it, and asking for
$1, 000 to cover his expenses in litigating the exhaustion
motion. I will deny this motion because there is
no reason to think that O'Donnell's and counsel's
errors were malicious or made for the purpose of gaining an
advantage. In fact, the error could only have helped Kuhnke:
a deadline based on business days is more generous than a
calendar-day deadline. And, as stated above, this mistake
ultimately does not affect the outcome. Counsel also promptly
fixed the error after Kuhnke raised it, which also shows
defendants' good faith.
filed two other grievances in 2010: (1) no. CCI-2010-24464,
about defendant dentist Randal G. Stelzner pulling his tooth
instead of performing a less invasive procedure such as a
root canal; and (2) no. CCI-2010-24465, about Kuhnke being
forced to pay a $7.50 copayment for the tooth extraction.
Kuhnke did not fully exhaust either of these grievances. The
copay grievance is irrelevant because Kuhnke does not bring a
claim about it in this lawsuit. But Kuhnke does not directly
argue that the grievance about the extraction was properly
exhausted or that the full grievance procedure was
unavailable to him. He does suggest that his later 2016
grievances may have served to exhaust his claims, but those
grievances were about staffing policies and his January 2016
request for a dental bridge. They cannot exhaust his
complaint about Stelzner's 2010 decision to extract his
tooth instead of performing a different procedure. Because
Kuhnke failed to exhaust this claim against Stelzner, I will
dismiss it from the case without prejudice. Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (dismissal
for failure to exhaust is always without prejudice).
leaves Kuhnke's claims against defendant Meredith Mashak
and “the CCI dentist in his official capacity”
for denying his requests for a bridge or denture to allow him
to eat normally and prevent shifting of his remaining teeth.
In screening the complaint, I stated:
When Kuhnke states that “the CCI dentist in his
official capacity” denied him further treatment, I take
him to mean defendant Stelzner. But Kuhnke seems to be saying
that Stelzner was personally involved in denying him
treatment. This means that this claim will be against
Stelzner in his individual capacity, not his official
at 4-5. The exhaustion briefing suggests that Kuhnke's
claims about a bridge may have been aimed at 2016 conduct by
Mashak and a Dr. Thorpe rather than Stelzner. Defendants say
that Kuhnke's 2016 claims are not part of this lawsuit,
so he has not exhausted the bridgework claim. But because
Kuhnke's complaint was vague about the timing of his
request for bridgework, I cannot conclusively say that this
is so. If Kuhnke meant to bring claims about 2016 events,
then Thorpe rather than Stelzner would likely be the correct
defendant. And it remains unclear whether Kuhnke even wishes
to bring an individual capacity claim against a dentist for
this claim because he originally phrased the identity of the
wrongdoer as “the CCI dentist in his official
capacity.” Without knowing more precise contours of
this claim, I cannot say whether Kuhnke has exhausted it. I
will give him a short time to provide a ...