     Case: 19-30168      Document: 00515287119         Page: 1    Date Filed: 01/27/2020




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

                                                                              FILED
                                                                         January 27, 2020
                                    No. 19-30168                           Lyle W. Cayce
                                  Summary Calendar                              Clerk


JASON EUGENE,

                                                 Plaintiff-Appellant

v.

KEITH DEVILLE, WARDEN, WINN CORRECTIONAL CENTER; JODY
FLOYD, Deputy Warden; BILL TIGNER, Assistant Warden; RANDI PRICE;
KATHLEEN RICHARDSON; JAMES M. LEBLANC, SECRETARY,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; LASALLE
CORRECTIONS, also known as LaSalle Management,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:18-CV-1077


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jason Eugene, Louisiana prisoner # 388863, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim upon
which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30168

U.S.C. § 1915A(b). A civil rights complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). “We accept all well-pleaded facts as true and view those facts
in the light most favorable to the plaintiff.” Whitley v. Hanna, 726 F.3d 631,
637 (5th Cir. 2013).
      Eugene’s claims relate to the dental care he has received while in prison.
Although in the district court he also challenged the treatment he was
receiving for his hepatitis C, he does not repeat those contentions on appeal
and they are deemed abandoned. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Pursuant to the Eighth
Amendment’s prohibition against cruel and unusual punishment, prisoners
are entitled to receive “adequate medical care.” Easter v. Powell, 467 F.3d 459,
463 (5th Cir. 2006) (citing Farmer v. Brennan, 511 U.S. 825, 832 (1994)). The
denial of dental care may violate the Eighth Amendment. See Carlucci v.
Chapa, 884 F.3d 534, 538-40 (5th Cir. 2018). A prison official violates the
Eighth Amendment if his conduct demonstrates “deliberate indifference” to a
prisoner’s “serious medical needs,” constituting an “unnecessary and wanton
infliction of pain.” Wilson v. Seiter, 501 U.S. 294, 297 (1991) (internal quotation
marks and citation omitted). To satisfy this standard, Eugene must establish
that prison officials “refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly
evince a wanton disregard for any serious medical needs.” Gobert v. Caldwell,
463 F.3d 339, 346 (5th Cir. 2006) (internal quotation marks and citation
omitted). The prison official must know of a substantial risk of serious bodily
harm and must disregard that risk by failing to take reasonable measures to
abate it. Id.



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                                  No. 19-30168

      The district court concluded that Eugene’s claim that he was
unconstitutionally deprived of dentures after extraction of his teeth did not
constitute deliberate indifference in light of prison policy authorizing dentures
if they were medically necessary. According to Eugene, the fact that he was
not ordered dentures establishes the deficiencies in the policy. A prison official
who deprives an inmate of a necessary medical device may violate the Eighth
Amendment. Brewster v. Dretke, 587 F.3d 764, 769 (5th Cir. 2009).
      However, a prison official may satisfy the Constitution “if they responded
reasonably to the risk, even if the harm ultimately was not averted.” Farmer,
511 U.S. at 844 (internal quotation marks and citation omitted). Numerous
unpublished decisions concerning dental care and dentures provide persuasive
authority that prison officials act reasonably when they provide extensive
dental treatment or soft food diets in lieu of dentures. See, e.g., Daugherty v.
Luong, 485 F. App’x 696, 696-97 (5th Cir. 2012); Hay v. Thaler, 470 F. App’x
411, 415 (5th Cir. 2012); Marquez v. Woody, 440 F. App’x 318, 320-21, 323 (5th
Cir. 2011). The record reflects that Eugene was placed on a soft food diet and
had his weight monitored. Eugene’s conclusional allegation that he has lost
weight does not establish constitutional error. See Taylor v. Books A Million,
Inc. 296 F.3d 376, 378 (5th Cir. 2002). Given that he has not shown a violation
of his constitutional rights, Eugene is not entitled to relief on his assertion that
the prison officials’ stated policy of allowing dentures only in limited
circumstances or the purported practice of never authorizing dentures caused
him harm. Cf. Porter v. Epps, 659 F.3d 440, 446 (5th Cir. 2011) (indicating
that a supervisory official may be liable if he implements an unconstitutional
policy that causes constitutional harm).
      In addition, Eugene complained about the 10-month delay between his
initial attempt to seek dental care for his broken and painful teeth and his first



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                                 No. 19-30168

visit with a dentist. The district court rejected his claim, finding no evidence
that Eugene had filed a grievance relating to the delay in dental care and
concluding that the delay did not cause him additional harm. A delay in
medical care violates the Constitution “‘if there has been deliberate
indifference [that] results in substantial harm.’”    Easter, 467 F.3d at 464
(quoting Mendoza v. Lynaugh, 989 F.2d 191, 193 (5th Cir. 1993)). Pain suffered
during the delay may constitute sufficient harm. Id. at 464-65. Eugene alleged
that he had filed grievances relating to the delay in dental care. The exhibits
submitted with Eugene’s amended complaint indicate that he advised medical
staff on multiple occasions during the 10-month delay that he was in pain and
needed dental care. Such allegations could show that the medical staff were
aware of his pain and failed to provide care. See id. at 464. In addition, Eugene
asserted in his original complaint that the prison administration had reduced
medical staff in order to save costs, which resulted in the undue delay in
treatment. The district court did not address this allegation or determine
whether such a claim could give rise to supervisory liability.
      We express no opinion on the merits of Eugene’s claims relating to the
delay in dental treatment. However, the district court is in a better position to
consider the merits and validity of Eugene’s allegations in the first instance,
including obtaining Eugene’s medical records and grievance history if
necessary. Accordingly, the judgment of the district court is AFFIRMED in
part and VACATED in part, and the case is remanded for proceedings
consistent herewith. Eugene’s motion for appointment of counsel is DENIED.




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