Kuhnke, Leroy v. Stelzner, Randal et al

Filing 23

ORDER granting defendants' 18 motion to stay the answer deadline for the Doe defendant; granting defendants' 19 motion for an extension of time to file an exhaustion-based motion for summary judgment. Plaintiff may have until May 1, 2017, to respond to this order regarding whether he still wishes to name Kim Johnson as the Doe defendant. Signed by District Judge James D. Peterson on 4/17/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LEROY K. KUHNKE,
Plaintiff,
v.
ORDER
RANDAL G. STELZNER, DALIA SULIENE,
VICKI WALKER, LILLIAN TENEBRUSO,
PAUL KETARKUS, MEREDITH MASHAK,
and KIM JOHNSON,

16-cv-629-jdp

Defendants.
Plaintiff 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. Kuhnke was allowed to proceed against four “John Doe” nurses who delayed in giving
him treatment for a tooth causing him severe pain. At the preliminary pretrial conference,
Magistrate Judge Stephen Crocker set out the process by which Kuhnke could use discovery
requests to learn the identities of the Doe defendants.
On March 6, 2017, Kuhnke submitted a supplement to his complaint naming Kim
Johnson as one of the Does, who “delivered the 24 pack of Ibuprofen to the plaintiff on
October 13, 2010.” Dkt. 12. (He said he was unable to identify the others.) The state did not
accept service because Johnson was in a contract position at the time of the events of this
case, but also stated that he currently works at the Dodge Correctional Institution. However,
less than a week later, the United States Marshal returned the service form for Johnson
unexecuted, stating that there was no Dodge employee with that name.

The state has now filed two motions. First, it requests a stay of the answer deadline
for the John Doe defendant, noting that Kim Johnson has not yet been served and that he is
very likely not the person Kuhnke really means to name as this defendant: Johnson is a man,
but Kuhnke’s supplement calls Johnson “she” and his discovery request identified the Doe
defendant as “the nurse (approx. 5’8” tall with blonde hair, approx.. 30 years old) who
brought the Ibuprofen to the plaintiff on 10-13-10”).
I will grant the motion to stay the answer deadline because the Doe defendant has not
yet been served. I will direct Kuhnke to respond to this order, explaining whether he means
to name Johnson as the Doe defendant, or whether this new information leads him to
consider naming someone else. If he decides the proper defendant is Johnson, the state
should respond, double-checking whether Johnson still works at the Dodge Correctional
Institution—it seems unlikely that he left the prison in the week between the state’s response
and the Marshal’s submission of the service form. If the state has not already provided
Kuhnke with the names of the nurses working at CCI the night of October 13, 2010, it
should do so.
The state has also filed a motion seeking to extend by two weeks its deadline to file a
motion for summary judgment based on Kuhnke’s failure to exhaust his administrative
remedies, due to a staffing shortage and the unexpected absence of the paralegal assigned to
the case. Dkt. 19. The state then followed up with its exhaustion motion. Dkt. 20. I will
grant the motion for extension of time. The clerk of court has set briefing on the merits of the
exhaustion motion.

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ORDER
IT IS ORDERED that:
1. Defendants’ motion to stay the answer deadline for the Doe defendant, Dkt. 18, is
GRANTED.
2. Defendants’ motion for an extension of time to file an exhaustion-based motion
for summary judgment, Dkt. 19, is GRANTED.
3. Plaintiff Leroy Kuhnke may have until May 1, 2017, to respond to this order
regarding whether he still wishes to name Kim Johnson as the Doe defendant.
Entered April 17, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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