Schillinger v. Yang

Filing 45

ORDER signed by Judge Brett H Ludwig on 3/6/25 that Defendant's motion for summary judgment 34 is GRANTED; Plaintiff's motion for summary judgment 30 is DENIED; and this case is DISMISSED. (cc: all counsel and mailed to pro se party)(jad)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL A. SCHILLINGER,
Plaintiff,
v.

Case No. 23-cv-1350-bhl

KWON C. YANG,
Defendant.
DECISION AND ORDER
Plaintiff Daniel A Schillinger, who is representing himself, is proceeding on an Eighth
Amendment deliberate indifference claim in connection with allegations that Defendant Dr.
Kwon Yang refused to treat his Temporomandibular Joint (TMJ) pain at the Racine Correctional
Institution. Dkt. Nos. 1 & 8. This matter comes before the Court on the parties’ cross-motions
for summary judgment. Dkt. Nos. 30 & 34. Because the facts in the record would not allow a
reasonable jury to find in Schillinger’s favor that Dr. Yang was deliberately indifferent towards
Schillinger’s TMJ pain, the Court will grant Dr. Yang’s motion, deny Schillinger’s motion, and
dismiss this case.
UNDISPUTED FACTS
Schillinger is an inmate at the Racine Correctional Institution, where Dr. Yang is a fulltime dentist. Dkt. No. 36, ¶¶1-2. Schillinger has a long history of Temporomandibular Joint
(TMJ) pain, which causes a popping sensation in his jaw and difficulty opening his mouth to eat
food. Id., ¶¶22-44; see also Dkt. No. 40, ¶¶ 21 & 23. TMJ pain is hard to diagnose but is typically
caused by misalignment of the discs in the joint, damaged cartilage in between the joint, or sudden

impact to the area. Dkt. No. 36, ¶¶7-10. Depending on the symptoms, TMJ pain can be
considered a dental problem, a medical problem, or both. Id., ¶14. Dentists, oral surgeons (OS),
and ear, nose, and throat doctors (ENTs) all work on TMJ disorders. Id. The Department of
Corrections (DOC) does not have a TMJ specialist on staff. Id., ¶¶15-16.
In November 2022, Schillinger asked for an appointment with Dr. Yang after physical
therapy for his TMJ pain, ordered by Dr. Urbanowicz (not a defendant), proved ineffective. Id.,
¶¶54-56. Dr. Yang placed Schillinger on the “Essential List” on November 7, 2022. Id., ¶56.
The Essential List is apparently a waiting list for inmates who need certain dental procedures.
Dr. Yang explains that the dental department uses the Essential List to schedule in-person
appointments. Id., ¶57.
About a month and a half later, on December 21, 2022, Dr. Yang examined Schillinger in
person in connection with his complaints of TMJ pain. Id., ¶59. Based on the examination, Dr.
Yang wanted to prescribe Flexeril (a muscle relaxant) to treat the TMJ pain. Id., ¶61. Dr. Yang
explains that Schillinger was allergic to non-steroidal anti-inflammatory drugs (NSAIDs) and Dr.
Urbanowicz had already concluded that physical therapy didn’t help. Id. Schillinger’s existing
prescriptions made prescribing Flexeril problematic. Id. Schillinger was already taking an
antidepressant called Venlafaxine and Flexeril was contraindicated with Venlafaxine.

Id.

Accordingly, Dr. Yang asked the Psychological Services Unit (PSU) whether they would agree
to change the antidepressant prescription from Venlafaxine to Amitriptyline. Id., ¶¶60-61. PSU
agreed to make the change but Schillinger refused to consent, insisting that Amitriptyline did not
work for him. Id., ¶¶64 & 67. Because Dr. Yang could not prescribe an NSAID (due to allergy)
or Flexeril (due to Schillinger’s refusal to change the contraindicated prescription), he turned to
a third option and offered Schillinger an occlusal appliance, otherwise known as a “night guard”

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or a “bite splint.” Id., ¶¶67. Dr. Yang explains that an occlusal appliance repositions the jaw
and can relieve pressure on the TMJ. Id., ¶¶12, 24-26, 68, & 80. Schillinger refused the occlusal
appliance as well, claiming he didn’t grind his teeth. Id., ¶67.
During this time period, between November 2022 and January 2023, Schillinger filed
several Dental Service Requests (DSRs), Health Service Requests (HSRs), and oral requests for:
(1) a TMJ specialist; and (2) surgery. Id., ¶¶55-67. Dr. Yang explains that both options required
the DOC Dental Director to give “Class 3 Authorization” and prison policy required Dr. Yang to
first exhaust all more conservative treatments before requesting that authorization. Id., ¶78. Dr.
Yang further explains that the available conservative options included an occlusal appliance,
physical therapy, and prescription medication. Id. Schillinger had rejected two out of three
conservative treatment options at that time.
In February 2023, Schillinger agreed to slowly taper off Venlafaxine, so that he could try
Flexeril. Id., ¶69. But, by March 2023, Schillinger had changed his mind again, arguing that he
had TMJ prior to starting Venlafaxine, so he wanted to stay on it. Id., ¶70. Dr. Yang again
suggested that Schillinger try an occlusal appliance, but he again refused. Id. Later, on March
21, 2023, Schillinger finally agreed to try an occlusal appliance, but the next available
appointment to make a mold of his teeth was five months later, on August 24, 2023. Id., ¶¶82 &
88. Dr. Yang explains that the typical timeframe to get an occlusal appliance (or any other
prosthetic) through the DOC is actually 52 weeks, as outlined in DAI Policy #500.40.32, but he
took affirmative steps to expedite Schillinger’s request due to his continued complaints of pain.
Id., ¶¶83 & 84. Indeed, between March 2023 and August 2023, Schillinger had filed at least five
DSRs complaining about TMJ pain. Id., ¶¶75, 76, 79, 81, 82, & 90. Dental staff and/or Dr. Yang
responded to each one with an explanation that he was on the appropriate waitlist to make a mold

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of his teeth. Id., ¶90. Throughout this time, Dr. Yang could not prescribe medication because
Schillinger was allergic to NSAIDs and refused to change the contraindicated antidepression
prescription to be able to try the muscle relaxant. Id., ¶¶67.
On September 26, 2023, Schillinger finally received his occlusal appliance. Id., ¶96. Dr.
Yang explains that it typically takes three to four weeks to receive the occlusal appliance after the
mold is made. Id., ¶95. There was a slight delay in this case, however, because the Dental Lab
created one type of occlusal appliance based on the mold of Schillinger’s teeth, but after it actually
created the occlusal appliance, it recommended something slightly different to account for
Schillinger’s deep overbite. Id., ¶93. Dr. Yang directed Schillinger to wear his occlusal appliance
and perform his physical therapy exercises. Id., ¶98. Ultimately, even with the occlusal appliance
and physical therapy exercises, Schillinger still reported TMJ pain. Id., ¶99. Accordingly, having
exhausted the available more conservative treatments, on October 2, 2024, Dr. Yang wrote to the
DOC Dental Director (not a defendant) seeking Class 3 Authorization for an appointment with
the TMJ & Orofacial Pain Treatment Center in the City of Racine. Id., ¶¶99-100. The DOC
Dental Director instructed Dr. Yang to fill out a Class 3 Authorization for Oral Surgery, which
Dr. Yang did. Id., ¶100.
After pursuing Class 3 Authorization, Dr. Yang was notified that the oral surgeons used by
the institution no longer evaluated TMJ pain. Id., ¶101. Dr. Yang was therefore instructed to
refer Schillinger to an ENT instead. Id. Dr. Yang complied and made the referral to an ENT.
Id., ¶¶101 & 106. Dr. Yang then discovered another issue with his Class 3 Authorization request;
the specialist he wanted—the TMJ Center—would not accept the DOC’s insurance plan. Id.,
¶102. On December 15, 2023, Schillinger saw ENT Dr. Mallorie Bergstrom (not a defendant).
Id., ¶104. Like Dr. Yang, Dr. Bergstrom also discussed conservative treatment options, but

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ultimately believed that Schillinger need a follow-up appointment with the TMJ Center. Id. Dr.
Bergstrom also recommended a soft, pureed diet, which Schillinger declined. Id., ¶105.
On December 19, 2023, Dr. Yang wrote to the DOC Dental Director explaining the
circumstances of his efforts to treat Schillinger. Id., ¶106. He explained that he had been told
that OS did not treat TMJ anymore, that both he and Dr. Bergstrom believed Schillinger needed
a referral to the TMJ Center, and that the TMJ Center would not accept the DOC’s insurance plan.
Id. To try to surmount these obstacles, Dr. Yang looked into alternative providers. Id., ¶¶107111. He directed his staff to contact the University of Wisconsin (UW), Dr. Mary Karkow, the
Marquette Oral Surgery Department, and TMJ Pain Solutions. Id. UW referred its TMJ patients
to dental, OS, and physical therapy; therefore, they could not be of assistance. Id., ¶107. Dr.
Mary Karkow did not return Dr. Yang’s call. Id., ¶110. The Marquette Oral Surgery Department
reported that they only did wisdom teeth and implants, not TMJ. Id., ¶111. And TMJ Pain
Solutions also would not accept the DOC’s insurance plan. Id., ¶113. Dr. Yang then personally
called the TMJ Center—the Provider that both he and Dr. Bergstrom had wanted—but the Center
reiterated that it would not accept the DOC’s insurance plan and that the service would have to
be paid out-of-pocket at the time of service. Id., ¶109. At this point, the DOC Dental Director
agreed to get involved and told Dr. Yang that he would inquire further up the chain of command
to identify other options that might work. Id., ¶113.
About five months later, in May 2024, the issue with the availability of the TMJ Center
finally resolved. Id., ¶¶114-118. Because the DOC’s insurance was processed through a
company in Michigan, Providers mistakenly believed the coverage was from an “out-of-state
insurance” (rather than State insurance). Id., ¶118. To resolve this confusion, all DOC schedulers
were then notified that, if a Provider refused DOC insurance, the scheduler needed to inform the

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treating facility that the DOC had State insurance and that the coverage was merely processed by
an out-of-state company. Id. Once this issue was resolved Schillinger was able to be treated at
the TMJ Center. Id., ¶119.
On June 13, 2024, Schillinger finally visited the TMJ Center, where Dr. Connor Peck (not
a defendant) diagnosed him with bilateral TMJ disc disorder with reduction, B TMJ arthralgia
(pain in joint), and myofascial pain of masticatory muscles. Id., ¶120. In the end, after the lengthy
delays, Dr. Peck ultimately recommended that Schillinger be treated with an occlusal appliance,
the very same treatment Dr. Yang had already recommended and had already created for him in
September 2023. Id., ¶124. Schillinger appears to be satisfied with his occlusal appliance and is
not asking for any other medical care, but he seeks monetary damages for past pain and suffering.
Dkt. No. 31 at 10.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986); Ames v. Home Depot U.S.A., Inc., 629 F.3d 665, 668 (7th
Cir. 2011). “Material facts” are those under the applicable substantive law that “might affect the
outcome of the suit.” Anderson, 477 U.S. at 248. A dispute over a “material fact” is “genuine” if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The party asserting that a fact is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or

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(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1). “An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4).
ANALYSIS
The Eighth Amendment proscribes “deliberate indifference to serious medical needs of
prisoners” amounting to “the unnecessary and wanton infliction of pain.” Stockton v. Milwaukee
Cnty., 44 F.4th 605, 614 (7th Cir. 2022) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). To
survive summary judgment, Schillinger must point to evidence that: (1) he suffered an objectively
serious medical condition; (2) Dr. Yang knew of the condition and was deliberately indifferent to
treating him; and (3) this deliberate indifference injured him. Id. “Deliberate indifference occupies
a space slightly below intent and poses a ‘high hurdle and an exacting standard’ requiring
‘something approaching a total unconcern for the prisoner's welfare in the face of serious risks.’”
Id. at 615. Indeed, Schillinger must show that Dr. Yang’s medical decisions were “such a
substantial departure from accepted professional judgment, practice, or standards, as to
demonstrate that the person responsible actually did not base the decision on such a judgment.”
Sain v. Wood, 512 F.3d 886, 895 (7th Cir. 2008) (quoting Collignon v. Milwaukee County, 163
F.3d 982, 988 (7th Cir. 1998)). Schillinger must show “no minimally competent professional”
would have treated him as Defendants did. Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011).
For purposes of this motion, the Court will presume that Schillinger’s TMJ was an
objectively serious medical condition. But no reasonable jury could conclude that Dr. Yang was
deliberately indifferent towards it. To the contrary, the undisputed evidence shows that Dr. Yang
undertook extensive effort to try to help Schillinger with his TMJ pain. Dr. Yang examined
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Schillinger in person; attempted to prescribe medication to relax Schillinger’s jaw muscles (which
Schillinger rejected); offered an occlusal appliance (which Schillinger also initially rejected);
responded to the DSRs; moved Schillinger up the waitlist to make a mold of his teeth (even though
Schillinger caused the delay by initially refusing the occlusal appliance); sought and got approval
for Class 3 Authorization; ordered every referral that was recommended (OS, ENT, and the TMJ
Specialist); personally called the TMJ Center to confirm that they would not treat Schillinger due
to his insurance; explored alternative providers (Dr. Karkow, Marquette Oral Surgery, the
University of Wisconsin, and TMJ Pain Solutions); then ultimately succeeded in getting
Schillinger seen by the TMJ Center, where a specialist ultimately recommended the same final
treatment Dr. Yang had suggested more than a year earlier. Based on this record alone, no
reasonable jury could conclude that Dr. Yang was deliberately indifferent towards Schillinger’s
TMJ pain.
Additionally, there is nothing in the record to suggest that Dr. Yang’s treatment
recommendations were anything but sound. Indeed, his treatment recommendations were the same
as those made by Dr. Bergstrom (to go to the TMJ Center) and Dr. Peck (for an occlusal appliance).
Schillinger acknowledges this point—that Dr. Peck ultimately ordered the same treatment that Dr.
Yang had already recommended and provided since September 2023—but clarifies that his claim
is limited to the Dr. Yang’s conduct between March 2023 and August 2023. Dkt. No. 40.
Assuming that limiting the Court’s view of the facts is appropriate, even if the Court turns a blind
eye to Dr. Yang’s overall efforts to help Schillinger, it still does not save his claim. The record
confirms that any delays or denials in treatment during this specific time period were caused by
Schillinger’s own uncertainty on whether or not he wanted to try the more conservative treatment
options that Dr. Yang was required to explore before seeking Class 3 Authorization. Schillinger

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initially rejected, then agreed to try, and then again rejected Dr. Yang’s suggestion that he taper
off Venlafaxine so he could try a muscle relaxant in an effort to resolve his pain. Schillinger
similarly rejected and then agreed to try the occlusal appliance. Dr. Yang offered both treatment
options as early as January 2023. That Schillinger vacillated on accepting these options and
delayed his own treatment does not support a finding that Dr. Yang was deliberately indifferent.
Schillinger reiterates throughout his response materials that Dr. Yang continuously told
him, “there is nothing I can do,” regarding his TMJ pain. This statement was of course accurate
in context. The record as a whole shows that Dr. Yang did in fact take a series of actions to try to
help treat Schillinger’s TMJ pain. He went above and beyond the minimum of his obligations by
making personal phone calls to uncooperative Providers and relentlessly emailing the DOC Dental
Director. Dr. Yang undertook extensive efforts to help Schillinger and took steps to overcome a
series of obstacles, including some difficulties put in place by Schillinger himself. Dr. Yang’s
sentiment that he could “do nothing” is understandable given the constant barriers he faced. In the
beginning, Schillinger stood in his own way and refused to try prescription medication and an
occlusal appliance, both of which were required before Dr. Yang could request Class 3
Authorization for a TMJ specialist.

After Dr. Yang was finally able to retrieve Class 3

Authorization, both TMJ specialists categorically refused DOC insurance. Dr. Yang’s words of
frustration and defeat would have been an accurate representation of the situation being out of his
hands. It certainly was not an indication of deliberate indifference towards Schillinger’s medical
situation.
Schillinger’s remaining arguments have no merit. He claims that Dr. Yang refused a TMJ
specialist to “save money.” There is nothing in the record to support that unsupported assertion.
Dr. Yang made the request for a TMJ specialist several times, including placing a personal call to

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one of the treatment centers, but both clinics refused the appointment due to insurance issues. This
was not the result of any decision by Dr. Yang and was outside his control. Schillinger also states
that the ENT appointment was unnecessary; that Dr. Yang could have re-ordered physical therapy;
and that surgery could have been an early option. But inmates are not constitutionally entitled to
the medical care of their choosing. See Walker v. Wexford Health Sources, Inc., 940 F.3d 954,
965 (7th Cir. 2019) (“[A]n inmate is not entitled to demand specific care”). Additionally,
Schillinger’s disagreement with Dr. Yang’s his use of medical judgment does not support a
deliberate indifference claim.

See Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014)

(“Disagreement between a prisoner and his doctor, or even between two medical professionals,
about the proper course of treatment generally is insufficient, by itself, to establish an Eighth
Amendment violation.”).
Based on the undisputed record, no reasonable jury could conclude that Dr. Yang was
deliberately indifferent towards Schillinger’s TMJ pain. Therefore, he is entitled to summary
judgment. Accordingly, the Court will grant Dr. Yang’s motion, deny Schillinger’s motion, and
will dismiss this case.
CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that Defendant’s motion for
summary judgment (Dkt. No. 34) is GRANTED; Plaintiff’s motion for summary judgment
(Dkt. No. 30) is DENIED; and this case is DISMISSED. The Clerk shall enter judgment
accordingly.
Dated at Milwaukee, Wisconsin on March 6, 2025.
s/ Brett H. Ludwig
BRETT H. LUDWIG
United States District Judge

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This order and the judgment to follow are final. Plaintiff may appeal this Court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this Court a notice of appeal within 30 days of the entry
of judgment. See Fed. R. App. P. 3, 4. This Court may extend this deadline if a party timely requests
an extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). If Plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If Plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this Court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. §1915(g). If Plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serious physical injury. Id.
Under certain circumstances, a party may ask this Court to alter or amend its judgment under Federal
Rule of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure
60(b). Any motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the
entry of judgment. Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a
reasonable time, generally no more than one year after the entry of judgment. The Court cannot extend
these deadlines. See Fed. R. Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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