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Vasquez v. Schettle

United States District Court, E.D. Wisconsin

April 21, 2018

LUIS VASQUEZ, Plaintiff,
JOHN SCHETTLE, et al., Defendants.



         Plaintiff Luis Vasquez, a Wisconsin state prisoner who is representing himself, filed this lawsuit under 42 U.S.C. § 1983. I allowed him to proceed on claims that:

(1) defendant Dr. John Schettle was deliberately indifferent to his dental needs;
(2) defendants Belinda Schrubbe, Barbara De Lap, Cynthia Thorpe, Lori Alsum, and Michael Thumer were deliberately indifferent to his dental needs in connection with their review of his inmate complaints; and (3) defendants Dr. Man Lee, Chrystal Marchant, Lori Alsum, and Brian Foster failed to ensure that institution dentists were complying with Department of Corrections (DOC) policies. Before me now is defendants' motion for summary judgment.

         I. BACKGROUND[1]

Plaintiff is an inmate at Waupun Correctional Institution. Dr. Schettle is a dentist at Waupun, under the supervision of Dr. Lee, the current dental director of the Bureau of Health Services (BHS). De Lap was the dental director prior to Dr. Lee. Alsum is the current BHS nursing coordinator. Thorpe was the BHS nursing coordinator until 2011, when she retired. Marchant is Waupun's current Health Services Unit (HSU) manager. Schrubbe was the HSU manager until she retired in 2015. Foster is the current warden at Waupun. During the events of this complaint Thurmer was the warden.

         A. Dr. Schettle's Treatment of Plaintiff's Dental Condition

         On July 29, 2010, plaintiff submitted a dental service request (DSR) to Dr. Schettle, asking him to check plaintiff for cavities, gum loss, and fungi/bacteria. Docket No. 32-1, at 11. Plaintiff explained that he was having “chronic pain . . ., a foul taste in [his] teeth, and foul smell.” Id. Plaintiff indicated that he would like medication for the “pain, fungi, [and] bacteria.” Id.

         Five days later, on August 3, 2010, plaintiff was seen by Dr. Schettle. Docket No. 46, ¶ 3. At the appointment, plaintiff complained about chronic pain and sensitivity to cold in his lower left tooth. Id. ¶ 4. Dr. Schettle informed plaintiff that there was a cavity in the tooth. Id. ¶ 5. Dr. Schettle decided not to address the cavity at that time. According to Dr. Schettle, plaintiff had inflamed gingival tissue that would have bled and “adversely affected the caries removal and placement of the filling.” Docket No. 44, ¶ 26. Plaintiff disputes this explanation, pointing out that Dr. Schettle's records do not make note of “inflamed gingival tissue.” According to plaintiff, the teeth on the left side of plaintiff's mouth had been cleaned at a previous appointment on June 4, 2010, and despite the cavity being on that side of plaintiff's mouth, Dr. Schettle wanted the teeth on the right side of plaintiff's mouth to be cleaned before he would address the cavity. Id. ¶ 11; Docket No. 44, ¶ 23.

         On August 30, 2010, plaintiff submitted a DSR to Dr. Schettle, expressing his concerns about the periodontal disease that he feared was “further attacking [his] gums.” Docket No. 32-1, at 13. Plaintiff asserted that he was brushing his teeth three times per day and flossing, but he believed he was continuing to lose gum tissue. Id. He stated that the conditions were “causing [him] chronic sensitivity and excruciating piercing-sharp pain.” Id. Plaintiff asked how much longer he would have to wait for “teeth cleaning and dental surgery to restore [his] gums.” Id. He also asked for “pain medication for the intense pain.” Id.

         Dr. Schettle responded the next day. In reference to plaintiff's request for “teeth cleaning, ” Dr. Schettle informed plaintiff that he “should be seen next week by the hygienist.” Id. He also explained that plaintiff's concerns would be addressed at his next dental visit.” Id. Dr. Schettle did not address plaintiff's request for pain medication. Docket No. 46, ¶ 26. He explains that he did not prescribe pain medication because, three weeks earlier, plaintiff had received a prescription for thirty tablets of 600 mg ibuprofen and plaintiff was being offered another pain reliever (gabapentin) four times per day. Docket No. 44, ¶ 33.

         A little over a week later, on September 10, 2010, plaintiff was seen by the hygienist, and the teeth on the right side of his mouth were cleaned. Id. ¶ 34. Dr. Schettle did not fill the cavity in plaintiff's tooth at the appointment because he was seen only by the hygienist. Docket No. 46, ¶ 45. After this appointment, Dr. Schettle received another DSR from plaintiff, which was dated the day before plaintiff's appointment. Docket No. 44, ¶ 37. The DSR requested medication and referenced issues with ten teeth. Id. ¶ 37. Plaintiff explained:

My dental condition(s) is causing severe headaches, chewing difficulties and inability to drink cold water, milk, juice, etc. My dental condition is also interfering with my daily activities and state of sleep. The ibuprofen 600 MG that the MD gave me doesn't adequately or effectively relieve the pain; the pain returns when I eat, chew, drink cold fluids, brush my teeth -gums and when I rinse my mouth. The sensitive toothpaste does not adequately soothe the nerve, nor adequately protect against sudden sharp or shock pain. The pain is unbearable. Please order for me a “strong” prescription for the pain.

         Docket No. 32-1, at 14; Docket No. 46, ¶¶ 36-40.

         Dr. Schettle responded, “Seen today with hygienist. Please start using dental floss on a daily basis as discussed with the hygienist.” Docket No. 32-1, at 14. Dr. Schettle did not address plaintiff's complaints of pain. Docket No. 46, ¶ 50. According to Dr. Schettle, the hygienist made no entry in her notes about complaints of pain, and “the scaling/root plane procedure should have resulted in a reduction of [plaintiff's] discomfort.” Docket No. 44, ¶ 38. He believed plaintiff's request for a “strong” prescription was a request for opioid medication, which he did not believe was medically necessary. Docket No. 44, ¶ 38. Despite informing plaintiff that he would attempt to restore his tooth after the hygienist cleaned his ...

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