     Case: 13-30130      Document: 00512462245         Page: 1    Date Filed: 12/05/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                      No. 13-30130                              FILED
                                                                         December 5, 2013
                                                                           Lyle W. Cayce
GERALD D. THIBODEAUX,                                                           Clerk

                                                 Plaintiff-Appellant
v.

PAT THOMAS; DOCTOR ENGLESON; TIM WILKINSON, CORRECTIONS
CORPORATION OF AMERICA,

                                                 Defendants-Appellees




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:11-CV-2135


Before JONES, WIENER, and GRAVES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Gerald D. Thibodeaux, Louisiana prisoner number
517407, appeals from the dismissal of his civil rights complaint for failure to
state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Thibodeaux’s complaint
alleges cruel and unusual punishment resulting from a multi-year delay in
extracting his broken wisdom tooth. A prison dentist diagnosed the problem
in October 2010 and attempted but failed to extract the tooth in November


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 13-30130
2010. The dentist referred Thibodeaux for oral surgery, but prison officials
evidently transported Thibodeaux to a second facility, at which he had no
appointment. The second facility refused to treat Thibodeaux, both because he
had no appointment and because prison officials had not provided the facility
with the required paperwork to indicate the appropriate priority level of
Thibodeaux’s surgery. Thibodeaux finally underwent surgery in September
2012, almost two years after diagnosis.
       On appeal, Thibodeaux contends that the extreme, multiple delays in his
oral surgery constituted deliberate indifference to his serious medical needs
and that the district court erroneously dismissed his complaint for failure to
state a claim. He also claims that the magistrate judge erred by making
credibility findings based on documents he provided along with his pleadings.
He also insists that the district court erred further by denying him leave to
amend his complaint to add the prison company’s dental director as a
defendant.
       We review a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii)
de novo, applying the same standard that we apply to dismissals under Rule
12(b)(6) of the Federal Rules of Civil Procedure. 1 “Factual allegations must be
enough to raise a right to relief above the speculative level . . . on the
assumption that all the allegations in the complaint are true (even if doubtful
in fact).” 2
       Prison officials violate the Eighth Amendment’s prohibition of cruel and
unusual punishment when they demonstrate deliberate indifference to a
prisoner’s serious medical needs if such indifference inflicts unnecessary
suffering. 3 Deliberate indifference lies midway on the continuum between


       1 Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).
       2 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citation omitted).
       3 Estelle v. Gamble, 429 U.S. 97, 103-06 (1976).

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                                       No. 13-30130
simple negligence and intentional conduct; a prison official shows deliberate
indifference if “the official knows of and disregards an excessive risk to inmate
health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” 4 An official’s knowledge of a substantial risk of
serious harm may be inferred if the risk is obvious. 5 A delay in treatment may
constitute an Eighth Amendment violation if a prison official’s deliberate
indifference results in substantial harm, including suffering during the period
of delay. 6
       Thibodeaux alleges that, (1) prison officials determined that his tooth
required extraction surgery, which could not be provided on-site; (2) eight
months elapsed before officials transported him to a medical facility; (3) that
facility did not perform the surgery, allegedly because the prison officials made
an appointment at one facility but sent him to another, and did not file
appropriate paperwork; and (4) another year passed before Thibodeaux
received surgery.      Thibodeaux’s complaint further alleges that the named
prison officials deliberately—and not merely negligently—delayed taking the
steps known to them that would have allowed the needed surgery to occur. The
documents attached to Thibodeaux’s complaint corroborate his allegations,
illustrating his repeated (1) attempts to alert prison officials to his medical
needs and (2) requests for updates on their progress in securing his treatment.
Accepting these allegations as true, as we must for these purposes, we conclude
that the prison officials were well aware of a serious risk to Thibodeaux’s
health, including prolonged suffering, and acted with deliberate indifference to
that risk by delaying his treatment for almost two years.


       4 Farmer v. Brennan, 511 U.S. 825, 837 (1994).
       5 Id. at 840-42.
       6 Easter v. Powell, 467 F.3d 459, 464-65 (5th Cir. 2006).

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      Whether Thibodeaux will be able to prove his allegations is another
question, but it is not one that is currently before us. Thibodeaux’s allegations,
however, state a colorable Eighth Amendment claim that rises above the
speculative level. Accordingly, we REVERSE the district court’s dismissal of
Thibodeaux’s complaint and REMAND for further proceedings consistent with
this opinion.




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