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Kuhnke v. Stelzner

United States District Court, W.D. Wisconsin

July 18, 2018

LEROY K. KUHNKE, Plaintiff,



         Plaintiff Leroy Kuhnke, appearing pro se, is a prisoner incarcerated at the Columbia Correctional Institution. Kuhnke developed an abscessed tooth, for which prison officials gave him pain medication and antibiotics. A week after he first reported the problem, a dentist at the prison pulled the tooth. Kuhnke brings this lawsuit alleging that the prison officials failed to promptly treat this problem and adequately treat his pain. Defendants have filed a motion for summary judgment.

         Kuhnke had to wait a week before seeing a dentist about a painful, abscessed tooth. He shouldn't have had to wait that long, but the delay was primarily the result of the prison's dentist calling in sick. None of the defendants ignored Kuhnke's dental problem. I conclude that the undisputed facts show that none of the defendants acted with deliberate indifference to Kuhnke's medical needs, so I will grant summary judgment to defendants and dismiss the case.


         The following facts are drawn from the parties' summary judgment materials and are undisputed unless noted otherwise.

         Plaintiff Leroy Kuhnke is a prisoner incarcerated at the Columbia Correctional Institution. Defendants Paul Ketarkus and Kim Campbell held the position of “Nurse Clinician II” in the Health Services Unit at CCI. Defendant Vicki Kamrath[1] was a dental assistant at CCI. Defendant Dalia Suliene was a physician at CCI. Defendant Randal Stelzner was a dentist for the Department of Corrections. Meredith Mashak and Lilian Tenebruso were health services managers at CCI.

         On October 13, 2010, Kuhnke began experiencing severe pain around one of his teeth, which had previously had a root canal. Kuhnke's gums near that tooth were swollen and very tender. At about 9:10 p.m., Kuhnke told an officer on his housing unit that he had an abscessed tooth and was in severe pain.

         Defendant Ketarkus, a nurse clinician, received a call from Kuhnke's housing unit. Ketarkus says that the housing unit officer reported that Kuhnke was complaining only of a toothache. Kuhnke disputes this, saying that he told the officer that he had an abscessed tooth. Kuhnke cites a log entry from the officer stating that Kuhnke “was complaining he had an absess [sic] tooth.” Dkt. 32-1, at 7.[2] Ketarkus told the officer to have Kuhnke submit a dental service request form (DSR) because it was not an urgent or emergent problem under the prison dental policy.

         However, the prison's dental policy states that “high fever with dental infection” is an example of a “life-threatening condition” that requires “immediate care.” Dkt. 49-3, at 2. Neither Ketarkus nor any of the defendants discussed below took Kuhnke's vital signs in the few days after he first reported the problem. The policy also uses “abscess” as an example of the type of “urgent” problem that should be scheduled for appointment the same day, or “[i]f it is not clinically possible to definitively treat the urgent problem that day . . . then appropriate medications including necessary pain medications shall be prescribed until the dentist can provide definitive treatment.” Id. at 6. To get Kuhnke through the night, Ketarkus had a “colleague” take 24 ibuprofen 200 mg tablets to Kuhnke's housing unit. Ketarkus said that Kuhnke would be seen by a doctor the next day.

         The identity of the colleague who brought down the ibuprofen is in dispute. Kuhnke saw the nurse but he does not know for sure who she was. In his discovery materials he referred to her as “Nurse Kim, ” and described her as “a woman approx. 5'8” tall with blonde hair, approx. 30 years old, ” and “resembled Britney Spears.” See Dkt. 64, at 3. Defendant Kim Campbell is approximately five feet eight and she has blonde hair. The record does not show whether she resembles Britney Spears. In October 2010, she was 33 years old. Campbell worked in the Health Services Unit on October 13, 2010, but the staffing records show that she only worked until 1:30 p.m. that day, and the visit to Kuhnke's cell took place at 9:10 that night.

         Kuhnke explained to the nurse that he had an abscessed tooth and he was in extreme pain. The nurse responded by telling him to put in a “yellow slip” and walked away stating “I'm not even supposed to be here.” There was no dentist, dental hygienist, or medical doctor at CCI at that time of night. Ketarkus did not get another call from the housing unit with further reports of pain from Kuhnke. Kuhnke submitted a DSR, dated October 13, 2010, requesting emergency care, stating, “some sort of absess [sic] has developed under/around my molar that was root canalled years ago. I am experiencing extreme pain.” Dkt. 48-1, at 2.

         On October 14, 2010, defendant Kamrath, a dental assistant, received a phone call from the housing unit reporting that Kuhnke had been advised by medical staff to see dental staff for a possible abscessed tooth, and that medical staff had given him ibuprofen. Kamrath told unit staff that Kuhnke was scheduled to be seen the next morning because there was no dentist on-site on October 14.

         Kuhnke says that his pain worsened, he developed dry heaves and chills, he could not eat or drink, and his “mental health deteriorated . . . [and] he began praying for death.” Dkt. 59, at 4.

         Kuhnke's DSR was received by dental staff on October 15. Kamrath responded to Kuhnke, stating that a “priority appointment” was made. Later that morning, an officer reported that Kuhnke was complaining of dental pain and asking to be sent to dental services immediately. Kamrath authorized Kuhnke to be sent to dental services. Kuhnke arrived at about 10 a.m. Kamrath took an x-ray of his lower right teeth. She thought that tooth 30 appeared abscessed. Because the on-site dentist had called in sick that day, Kamrath showed the x-ray to defendant Suliene, a physician. From the x-ray and reported symptoms, Suliene prescribed Clindamycin (an antibiotic) and Tylenol III. She immediately gave Kuhnke a “loading dose” of Clindamycin. Defendant Stelzner, a dentist, says that the use of an antibiotic for several days before pulling the tooth is appropriate dental practice.

         Kamrath scheduled Kuhnke for a follow-up appointment on Monday, October 18, 2010 (dental services is closed on the weekend) and for an appointment with the dentist on Wednesday, October 20, 2010, the next time the dentist was scheduled to be on-site.

         On October 18, Kamrath saw Kuhnke for a follow-up. Kuhnke reported that his tooth was still bothering him and he was concerned of running out of the antibiotic. She retrieved some doses of the antibiotic that had already been placed in the housing unit's mail for Kuhnke and gave it directly to him. In her notes, she also states that Kuhnke would receive Tylenol III and a box of ibuprofen, to last him until he could be seen by the dentist.

         On October 20, 2010, defendant Stelzner saw Kuhnke in the dental services unit, discussed the procedure to extract his abscessed tooth, obtained his informed consent, administered local anesthesia, and extracted his tooth. Kuhnke's medical chart does not show complaints of pain at the extraction site following the extraction.


         To succeed on a motion for summary judgment, the moving party must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broad. Grp., Inc. , 414 F.3d 686, 692 (7th Cir. 2005). All reasonable inferences from the facts in the summary judgment record must be drawn in the nonmoving party's favor. Baron v. City of Highland Park, 195 F.3d 333, 338 (7th Cir. 1999). If the nonmoving party ...

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