United States District Court, W.D. Wisconsin
LEROY K. KUHNKE, Plaintiff,
RANDAL G. STELZNER, DALIA SULIENE, VICKI WALKER, LILLIAN TENEBRUSO, PAUL KETARKUS, MEREDITH BIRD, and KIM CAMPBELL, Defendants.
D. PETERSON DISTRICT JUDGE.
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.
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.
following facts are drawn from the parties' summary
judgment materials and are undisputed unless noted otherwise.
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 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.
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
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. 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.
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
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.
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.
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.
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.
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.
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
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.
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.
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 ...