United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DISMISSING COMPLAINT AND DIRECTING FURTHER
WALTON PRATT, JUDGE.
matter is before the Court on the Plaintiff Rodney Steven
Perry's Motion to Proceed In Forma Pauperis. The
assessment of even a partial filing fee is not feasible at
this time. Notwithstanding the foregoing ruling, the
plaintiff owes the filing fee. “All [28 U.S.C.] §
1915 has ever done is excuse pre-payment of the
docket fees; a litigant remains liable for them, and for
other costs, although poverty may make collection
impossible.” Abdul-Wadood v. Nathan, 91 F.3d
1023, 1025 (7th Cir. 1996). . For these reasons, the
request to proceed in forma pauperis [dkt. 2] is
Perry is a prisoner currently incarcerated at Pendleton
Correctional Industrial Facility (“Pendleton”).
Because he is a “prisoner” as defined by 28
U.S.C. § 1915(h), this Court has an obligation under 28
U.S.C. § 1915A(b) to screen his complaint before service
on the defendants. Pursuant to 28 U.S.C. § 1915A(b), the
Court must dismiss the complaint if it is frivolous or
malicious, fails to state a claim for relief, or seeks
monetary relief against a defendant who is immune from such
relief. In determining whether the complaint states a claim,
the Court applies the same standard as when addressing a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621,
624 (7th Cir. 2006). To survive dismissal,
[the] complaint must contain sufficient factual matter,
accepted as true, to state a claim for relief that is
plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se
complaints such as that filed by Mr. Perry are construed
liberally and held to a less stringent standard than formal
pleadings drafted by lawyers. Obriecht v. Raemisch,
517 F.3d 489, 491 n.2 (7th Cir. 2008).
Perry alleges that on March 11, 2016, the prison dentist,
Defendant Dr. Gregg Noll, extracted his tooth. Prior to the
extraction, Dr. Noll administered an anesthetic injection
which resulted in dental paresthesia, meaning the needle
inserted into Mr. Perry's jaw causing excruciating pain
when it damaged the nerve. As a result, Mr. Perry lost
feeling in his lip, jaw line and chin. Mr. Perry alleges
that Dr. Noll's treatment was negligent and he seeks
money damages to compensate him for the injury resulting from
this alleged malpractice. Mr. Perry seeks monetary damages.
the foregoing standard to the complaint, it is evident that
the complaint fails to state a claim upon which relief can be
granted. To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution
or laws of the United States and must show that the alleged
deprivation was committed by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48 (1988).
No constitutional violation has been alleged. No Eighth
Amendment claim has been alleged because there is no
allegation that Dr. Nolls “acted with a sufficiently
culpable state of mind.” Walker v. Benjamin,
293 F.3d 1030, 1037 (7th Cir. 2002) (citation omitted).
Negligence, even gross negligence, is insufficient to
establish deliberate indifference under the Eighth Amendment.
See Farmer v. Brennan, 511 U.S. 825, 835 (1994)
(“[D]eliberate indifference describes a state of mind
more blameworthy than negligence.”); Fisher v.
Lovejoy, 414 F.3d 659, 662 (7th Cir. 2005). A complaint
is sufficient only to the extent that it
“'contain[s] either direct or inferential
allegations respecting all the material elements necessary to
sustain recovery under some viable legal theory.'”
Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1969
(2007) (quoting Car Carriers, Inc. v. Ford Motor
Co., 745 F .2d 1101, 1106 (7th Cir. 1984)).
Noll's complaint must be dismissed for the reason set
forth above. Nothing in this action prevents Mr. Noll from
filing a malpractice action in state court. Mr. Noll shall
have through February 23, 2017, in which to show cause why
Judgment consistent with this Entry should not issue. See
Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022
(7th Cir. 2013) (“Without at least an opportunity to
amend or to respond to an order to show cause, an IFP
applicant's case could be tossed out of court without
giving the applicant any timely notice or opportunity to be
heard to clarify, contest, or simply request leave to
 For reference, see Garisto, G; Gaffen,
A; Lawrence, H; Tenenbaum, H; Haas, D (Jul 2010).
“Occurrence of Paresthesia After Dental Local
Anesthetic Administration in the United States.” The
Journal of the American Dental ...