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Kemmerly v. Haubenstein

United States District Court, D. Kansas

July 19, 2018

CHRISTOPHER KEMMERLY, Plaintiff,
v.
BROOK HAUBENSTEIN, Defendant.

          MEMORANDUM AND ORDER

          JOHN W. BROOMES, UNITED STATES DISTRICT JUDGE

         This case comes before the court on Defendant's motion for summary judgment. (Doc. 19.) The motion is ripe for decision as Plaintiff has failed to file a timely response. (Docs. 20, 21, 30.) Defendant's motion is GRANTED for the reasons stated herein.[1]

         I. Procedural History

         On March 16, 2018, Defendant moved for summary judgment. (Doc. 19.) As required by Local Rule 56.1(f), Defendant provided Plaintiff, who is proceeding pro se, with the required notice regarding motions for summary judgment. (Doc. 22.) The notice was mailed to Plaintiff's address of record. (Doc. 22.) Plaintiff's original response deadline was April 16, 2018. Plaintiff failed to respond by that date. On May 2, Plaintiff moved for an order denying Defendant's motion and also sought an extension to respond. (Doc. 28.) The court granted the extension but denied Plaintiff's request to deny Defendant's motion. (Doc. 30.) The court ordered Plaintiff to respond on or before July 9 and stated that a failure to respond would result in the court considering Defendant's facts set forth in the motion for summary judgment as uncontested pursuant to Local Rule 7.4. The court's order was mailed to Plaintiff's address of record on file with the court but subsequently returned to the court as Plaintiff has been released from custody. (Doc. 33.) Plaintiff, however, failed to notify the court of his change of address.

         Pursuant to Local Rule 5.1(c)(3), Plaintiff is required to notify the court of his current mailing address. Any notice sent to Plaintiff's last address of record, including the court order granting the extension, is deemed to be sufficient notice. D. Kan. Rule 5.1(c)(3).

         Therefore, because Plaintiff has failed to timely file a response as required by the court, Defendant's statement of facts set forth in the memorandum are deemed to be admitted. D. Kan. Rule 7.4.

         II. Uncontroverted Facts

         Plaintiff was incarcerated in the Butler County Jail (“the jail”) in 2017. At all times relevant to the complaint, Plaintiff was a pretrial detainee. (Doc. 1 at 3.) During his incarceration at the jail, he received medical care by various professionals. Defendant Haubenstein is a nurse who is employed by Advanced Correctional Healthcare, Inc., and provides medical services to inmates at the jail. (Doc. 12 at 1.)

         On July 24, 2017, Plaintiff was seen by Defendant for a physical. During the appointment, Plaintiff informed Defendant that he had a chipped tooth from an incident that occurred three months prior to his incarceration. Plaintiff did not complain of tooth pain. Plaintiff also denied that he had a sexually transmitted disease (“STD”) and did not complain of STD symptoms. Plaintiff indicated that he wore contacts but did not tell Defendant that he had an issue with his contacts. (Doc. 20 at 1, 4-5.)

         On August 2, Defendant responded to Plaintiff's question regarding corrective lenses. Defendant told Plaintiff that he could purchase reading glasses from the commissary or have his family purchase a pair of glasses. Defendant further instructed Plaintiff to submit a sick call request if he had headaches. (Doc. 20 at 2.)

         On August 2, 2017, Plaintiff submitted a sick call request. Plaintiff requested blood work and a urine analysis for STDs. Plaintiff stated that he had stomach pain and pain in his genitals. He also requested to see a dentist and asked for corrective lenses. On August 6, Nurse Lacey, who is not a named defendant, examined Plaintiff. Plaintiff was fully examined and treated. A urinalysis was performed that showed trace protein but all other values were within normal limits. Plaintiff was prescribed Tylenol and told to use a salt water rinse for 5 days. Also, a request was sent to Walmart Vision Center in order to obtain Plaintiff's prior eye examination. (Doc. 20 at 2-3.)

         On August 23, 2017, Plaintiff filed a grievance and stated that he needed glasses and medical care for his abdominal pain and tooth. On August 24, Defendant submitted a response to the grievance. Defendant told Plaintiff that he needed to submit a sick call request if he needed medical care for the abdominal issues or tooth pain. Defendant stated that the jail does not provide glasses or contacts but that Plaintiff's family could send in his glasses. (Doc. 20 at 3.)

         On August 26, Plaintiff filled out a sick call request. Plaintiff indicated that he had a burning sensation in his urethra and possible STD. On September 1, Plaintiff was examined by Nurse Lacey. Nurse Practitioner Bergkamp diagnosed Plaintiff with an STD and prescribed medication to treat the condition. A urinalysis was completed and it was negative. Plaintiff was instructed to take the medications and follow up as directed. (Id. at 3-4.)

         On September 6, Plaintiff was seen by Nurse Practitioner Bergkamp due to complaints of vision loss, urethral pain and tooth sensitivity to warm/cold foods. Nurse Practitioner Bergkamp examined Plaintiff and diagnosed him with urethritis, a cavity, and long-term vision loss myopia. She prescribed him Azithromycin for the urethritis, Dentamp for his ...


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