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Perry v. Noll

United States District Court, S.D. Indiana, Indianapolis Division

August 3, 2018

GREGG NOLL[1], PCF Dentist, and CORIZON HEALTH, Defendants.




         This 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 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).

         A 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).

         Local 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.”).


         The 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).

         A. Mr. Perry's Complaint

         Mr. 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 months.

         B. Mr. Perry's Dental Care

         On 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.

         On February 22, 2016, Dr. Noll restored the resin on tooth #18[2] 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.

         On 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.

         On 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.

         On 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.

         The 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.

         Dr. 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 ...

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