United States District Court, S.D. Indiana, Indianapolis Division
STEVEN PERRY, SR., #974441 PENDLETON CORRECTIONAL FACILITY
4490 WEST REFORMATORY ROAD PENDLETON, INDIANA 46064 JEB ADAM
CRANDALL BLEEKE DILLON CRANDALL ATTORNEYS
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT AND DIRECTING ENTRY OF FINAL JUDGMENT
WALTON PRATT, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Defendants Gregg Noll's,
(“Dr. Noll”) and Corizon Health's
(“Corizon”) (collectively, the
“Defendants”) Motion for Summary Judgment (Dkt.
54). Plaintiff Rodney S. Perry, Sr. (“Mr. Perry”)
brought this civil rights action pursuant to 42 U.S.C. §
1983 alleging that Dr. Noll violated his Eighth Amendment
rights through his constitutionally inadequate provision of
dental care and that Corizon is liable under Indiana state
law for the misconduct of its employee. For the reasons
explained below, the Defendants' Motion for Summary
Judgment, Dkt. 54, is granted.
SUMMARY JUDGMENT LEGAL STANDARD
judgment is appropriate when the movant shows that there is
no genuine dispute as to any material fact and that the
movant is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a). A “material
fact” is one that “might affect the outcome of
the suit.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). To survive a motion for summary
judgment, the non-moving party must set forth specific,
admissible evidence showing that there is a material issue
for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The court views the record in the light most
favorable to the non-moving party and draws all reasonable
inferences in that party's favor. Darst v. Interstate
Brands Corp., 512 F.3d 903, 907 (7th Cir. 2008). It
cannot weigh evidence or make credibility determinations on
summary judgment because those tasks are left to the
fact-finder. O'Leary v. Accretive Health, Inc.,
657 F.3d 625, 630 (7th Cir. 2011).
dispute about a material fact is genuine only “if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson,
477 U.S. at 248. If no reasonable jury could find for the
non-moving party, then there is no “genuine”
dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).
Rule 56-1(e) requires that facts asserted in a brief must be
supported “with a citation to a discovery response, a
deposition, an affidavit, or other admissible
evidence.” Id. In addition, the court will
assume that the facts as claimed and supported by admissible
evidence by the movant are admitted without controversy
unless “the non-movant specifically controverts the
facts in that party's ‘Statement of Material Facts
in Dispute' with admissible evidence” or “it
is shown that the movant's facts are not supported by
admissible evidence.” Local Rule 56-1(f). The court
“has no duty to search or consider any part of the
record not specifically cited in the manner described in
subdivision (e).” Local Rule 56-1(h); see
Kaszuk v. Bakery and Confectionery Union and Indus. Intner.
Pension Fund, 791 F.2d 548, 558 (7th Cir. 1986)
(“The court has no obligation to comb the record for
evidence contradicting the movant's affidavits.”);
Carson v. E.On Climate & Renewables, N.A., 154
F.Supp.3d 763, 764 (S.D. Ind. 2015) (“The Court gives
Carson the benefit of the doubt regarding any disputed facts,
however, it will not comb the record to identify facts that
might support his assertions.”).
following statement of facts is not necessarily objectively
true, but as the summary judgment standard requires, the
undisputed facts and the disputed evidence are presented in
the light reasonably most favorable to Mr. Perry as the
non-moving party with respect to the motion for summary
judgment. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 150 (2000).
Mr. Perry's Complaint
Perry's Amended Complaint alleges that on March 11, 2016,
he was subjected to unnecessary pain when Dr. Noll improperly
performed a tooth extraction procedure. Dkt. 17 at 3. He
asserts that Dr. Noll administered four anesthetic injections
and, upon administering the second injection, he inserted the
needle improperly, resulting in dental paresthesia. Mr. Perry
alleges that the needle caused excruciating pain when it
damaged the nerve. As a result, he suffers from permanent
loss of feeling in his lip, jaw line, and chin. He further
alleges that Dr. Noll delayed follow-up treatment for nine
Mr. Perry's Dental Care
January 27 and February 1, 2016, Mr. Perry submitted two
Requests for Health Care forms (“RFHC”) to have
his teeth examined and cleaned. Dkt. 56-2 at 1-2. He wrote
that he suffered from periodontal disease, bleeding gums, and
halitosis (bad breath). Id. On February 5, 2016, Mr.
Perry was diagnosed with a cavity in tooth #18 that needed to
be addressed before a full cleaning. Tooth #18 is a tooth on
the bottom jaw. Id. at 3. It is the second tooth
from the back in the left side of Mr. Perry's mouth, just
before the wisdom tooth, which is tooth #17. Dr. Noll
recommended that an occlusal resin be placed in tooth #18 and
took bitewing x-rays of Mr. Perry's teeth.
February 22, 2016, Dr. Noll restored the resin on tooth
using local anesthesia without incident. Id. That
same day, Mr. Perry submitted RFHC #182833 in which he
requested a cleaning. Id. at 7. On February 29,
2016, Dr. Noll performed an examination and noted no
cavities. Id. at 3. Dr. Noll recommended that Mr.
Perry be scheduled for a cleaning. Id.
March 2, 2016, Mr. Perry submitted RFHC #196267 and stated he
had a tooth filled and was eating when he felt excruciating
pain shoot through his bottom jaw where the tooth was filled.
Id. at 8. He stated that if the tooth could not be
fixed, he wanted it extracted. Id.
March 7, 2016, Mr. Perry came for his dental appointment and
stated that tooth #18 started to hurt after biting down on
something hard in his food. Mr. Perry stated that the pain
did not begin until after he opened his mouth after that
bite. Upon clinical examination, a crack on tooth #18 was
noted. Id. Because crown restorations are not
offered by the Indiana Department of Correction
(“IDOC”), extraction was the only other viable
option. Dkt. 56-1 at 4. Dr. Noll recommended that Mr. Perry
be scheduled for extraction of tooth #18, and took an x-ray
of the tooth. Dkt. 56-2 at 3-4. Mr. Perry declined pain
medication at that time - Mr. Perry already had a bottle of
ibuprofen that he purchased from commissary. Id.;
Dkt. 69 at 14.
March 11, 2016, Mr. Perry had an appointment with dental for
the extraction of tooth #18 with local anesthetic. Dkt. 56-2
at 4. Before the procedure, Dr. Noll explained the risks to
Mr. Perry, which include paresthesia, because the tooth is
very near the inferior alveolar nerve, and paresthesia may
result if that nerve is damaged. Dkt. 56-1 at 4. Mr. Perry
signed an informed consent form indicating that the risks and
consequences were explained to him, and that he understood
the alternatives. Dkt. 56-2 at 10. The form specifically
states, “I also release the Indiana Department of
Correction and/or its employees from any unforeseen results
therefrom.” Id. However, Mr. Perry disputes
that Dr. Noll explained the risks of the procedure to him or
that there was a risk of temporary or permanent paresthesia.
See Dkt. 68 at 2-3; Dkt. 69 at 9-10.
mandibular inferior alveolar nerve runs along the length of
the lower jaw in the center of the jawbone at a level near
the tip of the roots of the teeth. Dkt. 56-1 at 4-5. Towards
its end, it gives rise to the mental nerve that branches out
and runs to the lower lip and chin area. Most cases of
paresthesia occur in conjunction with the removal of lower
third molars (wisdom teeth) and, to a lesser extent, second
molars (the next tooth forward) because the nerves frequently
lie near these teeth and thus are at risk for damage during
the extraction process.
Noll has extracted approximately 800-1, 000 teeth annually
since beginning his dental practice in 1984. Dkt. 56-1 at 3.
Most of his extractions are of maxillary (upper) and
mandibular (lower) molars such as tooth #18, the tooth that
Dr. Noll extracted for Mr. Perry in this case. Id.
During dental school, students are given instruction in
giving various local nerve blocks and infiltration
techniques. This ...