     Case: 17-50025   Document: 00514379580     Page: 1   Date Filed: 03/09/2018




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

                                 No. 17-50025
                                                                       Fifth Circuit

                                                                     FILED
                                                                 March 9, 2018

GINO CARLUCCI,                                                  Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellant

v.

RACHEL CHAPA, Warden, Federal Correctional Institution La Tuna; MR.
NILES, Associate Warden, Federal Correctional Institution La Tuna; DR. M.
SPRINGER, D.D.S.; DR. THOMAS, D.D.S.; R. ACOSTA, Human Resource
Coordinator; MR. DUNNINGAN, Human Resources Coordinator,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      Gino Carlucci filed several claims against officials and medical personnel
at a federal correctional institution located in Texas. He alleged that the
defendants were deliberately indifferent to his serious medical needs in
violation of the Eighth Amendment and the Due Process Clause. The district
court dismissed Carlucci’s complaint as frivolous and for failure to state a
plausible claim upon which relief could be granted. We AFFIRM in part,
VACATE in part, and REMAND for further proceedings.
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                FACTUAL AND PROCEDURAL BACKGROUND
       Gino Carlucci was incarcerated at Federal Correctional Institution La
Tuna (“FCI La Tuna”) located in Anthony, Texas.                   Carlucci suffers from
temporomandibular joint disorder (“TMJD”), which causes pain and
dysfunction of the jaw. He alleges that because of his TMJD he “experience[d]
very violent jaw popping and the right side of [his] teeth were hitting really
bad.” In February 2013, one of Carlucci’s front teeth cracked and broke off. He
was sent directly to the dental clinic, where Dr. Springer concluded that
nothing could be done and recommended pulling the tooth. Carlucci disagreed.
Instead, Carlucci glued the broken tooth back in place. This self-remedy made
Carlucci’s bite “extremely uneven,” and several of his front upper teeth began
to crack.
       Carlucci notified Associate Warden Niles and Human Resources
Coordinator Dunnigan of his dental problems. 1 They assured Carlucci he
would receive care and scheduled an appointment with Dr. Thomas. The
appointment was on November 27, 2013. After examining Carlucci’s teeth, Dr.
Thomas concluded that the only effective treatment to prevent Carlucci’s teeth
from breaking or cracking was “to restore the missing bridge and repair the
fractured teeth.” Dr. Thomas further told Carlucci, however, that the Bureau
of Prisons “would never authorize” the treatment. In December 2013, Carlucci
reported the results of his dental exam to Associate Warden Niles, who told
Carlucci he was working to resolve this problem. Carlucci also filed a claim for
an administrative remedy but allegedly received no response.
       In January 2014, Carlucci met again with Niles and Dunnigan, who
again told Carlucci that they were trying to have his dental problems



       1 Carlucci does not include Niles and Dunnigan’s first names in his complaint, and the
court is unable to locate their first names anywhere in the record.
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                                   No. 17-50025
addressed. In February 2014, Carlucci received a bite-guard from Dr. Thomas.
While he was waiting for a response to his administrative remedy claim,
Carlucci learned that Niles and Dunnigan had both retired.
      In December 2014, Carlucci met with the new Human Resources
Coordinator, Acosta.     The next day, Acosta advised Carlucci to start the
administrative remedy process. Carlucci said “he had already completed the
administrative remedy process and the next step was to file an action in court
to seek a remedy.” This angered Acosta, who responded, “If you file a lawsuit
I am just going to say that you never went to your dentist appointments and
it[’]s your fault that you[’]r[e] not receiving dental care.”
      On June 4, 2015, Carlucci sued Warden Rachel Chapa, Former Associate
Warden Niles, Former Human Resources Coordinator Dunnigan, Human
Resources Coordinator Acosta, Dr. Springer, and Dr. Thomas under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971). In his complaint, Carlucci asserted three grounds for relief: (1) the
defendants were deliberately indifferent to his medical needs in violation of
the Eighth Amendment; (2) the defendants intentionally caused him wanton
pain and suffering by failing to treat his serious medical needs in violation of
the Eighth Amendment; and (3) the defendants failed to provide him necessary
medical treatment in violation of his due process rights under the Fifth
Amendment. In a report and recommendation, the magistrate judge assigned
to the case recommended a sua sponte dismissal of Carlucci’s complaint under
28 U.S.C. § 1915A as frivolous and for failure to state a claim. The district
court overruled Carlucci’s objections, adopted the magistrate judge’s
recommendation, dismissed the complaint, and awarded Carlucci a strike
under 28 U.S.C. § 1915(g). Carlucci timely appealed.




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                                 DISCUSSION
      The standard of review is de novo for a claim dismissed under 28 U.S.C.
§ 1915A(b)(1), which allows a district court to dismiss an in forma pauperis
prisoner’s civil right claim sua sponte if the complaint is frivolous, malicious,
or fails to state a claim upon which relief may be granted. Green v. Atkinson,
623 F.3d 278, 280 (5th Cir. 2010). We review the facts in the light most
favorable to the non-moving party. Id. A complaint that “lacks an arguable
basis either in law or in fact” is frivolous. Neitzke v. Williams, 490 U.S. 319,
325 (1989). The complaint has no arguable basis in law if it “alleges the
violation of a legal interest which clearly does not exist.”        McCormick v.
Stalder, 105 F.3d 1059, 1061 (5th Cir. 1997).
      To avoid dismissal for failure to state a claim, the complaint must allege
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The factual allegations must
“raise a right to relief above the speculative level.” Id. at 555. “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) (citing
Twombly, 550 U.S. at 556). If a complaint is written pro se, we are to give it a
liberal construction. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
      Carlucci, proceeding pro se, raises two issues in this appeal: (1) the
district court erred in dismissing his complaint for failing to state a claim upon
which relief could be granted; and (2) the district court erred in classifying his
complaint as a strike under Section 1915(g).         Carlucci asserts that his
allegations were sufficient for his Bivens claim to proceed.
      In certain factual scenarios, there is an implied right to recover damages
against a federal actor for violation of a constitutional right. See Bivens, 403
U.S. at 389.   Although the factual scenarios allowing recovery should be
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narrowly construed, there is an implied right of action against a federal actor
who shows deliberate indifference to a prisoner’s serious medical needs in
violation of the Eighth Amendment. Ziglar v. Abbasi, 137 S. Ct. 1843, 1856–
57 (2017). The denial or delay of treatment for serious medical needs violates
the Eighth Amendment, which prohibits cruel and unusual punishment. See
Estelle, 429 U.S. at 101.
      To show a violation of the Eighth Amendment, the plaintiff must prove:
(1) “objective exposure to a substantial risk of serious harm”; and (2) “that
prison officials acted or failed to act with deliberate indifference to that risk.”
Gobert v. Caldwell, 463 F.3d 339, 345–46 (5th Cir. 2006). A prison official
violates the Eighth Amendment when he shows deliberate indifference to a
prisoner’s serious medical needs, which equates to the “unnecessary and
wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). We
have defined “a serious medical need” as “one for which treatment has been
recommended or for which the need is so apparent that even laymen would
recognize that care is required.” Gobert, 463 F.3d at 345 n.12. Further, when
“balancing the needs of the prisoner against the burden on the penal system,
the district court should be mindful that the essential test is one of medical
necessity and not one simply of desirability.” Woodall v. Foti, 648 F.2d 268,
272 (5th Cir. Unit A 1981).
      To prevail on a claim for deliberate indifference, the plaintiff must show
that a federal actor denied him treatment, ignored his complaints, knowingly
treated him incorrectly, or otherwise evidenced a wanton disregard for his
serious medical needs. Domino v. Texas Dep’t of Criminal Justice, 239 F.3d
752, 756 (5th Cir. 2001). A disagreement about the recommended medical
treatment is generally not sufficient to show deliberate indifference, but the
denial of recommended medical treatment is often sufficient to show deliberate
indifference. See Gobert, 463 F.3d at 346; Woodall, 648 F.2d at 272. A delay
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in medical treatment that results in substantial harm can constitute deliberate
indifference. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993).
      Carlucci argues that he was exposed to a substantial risk of harm
because his teeth were cracking and breaking. The magistrate judge found
that Carlucci showed a substantial risk of serious harm, and the district court
adopted this finding.      Carlucci argues that the defendants acted with
deliberate indifference because they knew of his serious medical need yet failed
to provide adequate care. The magistrate judge and district court concluded
otherwise, holding that Carlucci had not pled “deliberate indifference because
his claims amount to nothing more than a disagreement with the type of dental
treatment” that the defendants offered to provide. The magistrate judge wrote
that “Carlucci declined to have any of []his teeth removed, even though it would
resolve[] the issue of his injured front teeth, because he preferred the
restoration of his missing bridge.”
      This reading of Carlucci’s complaint does not construe the facts in the
light most favorable to Carlucci, which is the standard that must be applied to
his complaint. In his complaint, Carlucci alleged that Dr. “Thomas performed
a radiograph of Plaintiff[’]s teeth that revealed several fractures, he explained
that . . . all of the teeth that are hitting will eventually break or crack and the
only way to stop this . . . is to restore the missing bridge and repair the
fractured teeth.”    Carlucci’s allegation is that the dentist recommended
restoring his bridge and repairing the fractured teeth. He did not claim that
the dentist recommended pulling the teeth and Carlucci disagreed.
      The nature of Carlucci’s claims are similar to some we have previously
considered and deemed sufficient. In one case, a dentist recommended pulling
a prisoner’s teeth but informed the prisoner that the operation could not be
done because it was not authorized. Thompson v. Williams, 56 F.3d 1385, 1385
(5th Cir. 1995) (unpublished). We wrote that “[u]nder certain circumstances,
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                                  No. 17-50025
allegations of deliberate indifference may be shown when prison officials deny
an inmate recommended treatment by medical professionals.” Id. (quoting
Payne v. Lynaugh, 843 F.2d 177, 178 (5th Cir. 1988)). We held that “Thompson
has stated a claim of denial of medical care under the Eighth Amendment[.]”
Id. Similarly, we also once held that a plaintiff stated a plausible claim for
relief when he alleged that he suffered severe physical pain yet the prison
officials failed to provide him with dentures to alleviate that pain. Huffman v.
Linthicum, 265 F. App’x 162, 163 (5th Cir. 2008). We agree with the reasoning
and analysis from Thompson and Huffman.
      Like the plaintiff in Thompson, Carlucci alleged that he was denied
medically recommended treatment. In his complaint, Carlucci claimed Dr.
Thomas recommended that a dentist “restore the missing bridge and repair
the fractured teeth.” Carlucci also alleged he never received such treatment.
Carlucci said he suffered “extreme pain,” that “four to five front upper teeth
were begin[n]ing to crack,” and that he suffered permanent physical injury.
These are claims similar to those in Huffman, 265 F. App’x at 163. Carlucci’s
allegations of severe physical pain and denial of recommended dental
treatment are sufficient to state a plausible claim for relief.
      The district court cited one of this court’s opinions to support that
Carlucci failed to state a claim upon which relief could be granted because a
prisoner is not entitled to restorative treatment. See McQueen v. Karr, 54 F.
App’x 406 (5th Cir. 2002). In McQueen, though, the plaintiff preferred an
alternative to the recommended treatment. Instead of having his teeth pulled,
which was the recommended dental procedure, the plaintiff wanted “more
expensive restorative treatment.” Id. Carlucci alleges that he wants the
recommended dental procedure, not a preferred alternative treatment.
      Without expressing an opinion on the merits of his claim, we vacate and
remand on Carlucci’s claim of deliberate indifference to his serious medical
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                                No. 17-50025
needs in violation of the Eighth Amendment. We therefore also vacate the
district court’s awarding Carlucci a strike under 28 U.S.C. § 1915(g).
      We affirm the district court’s dismissal of the claim that the defendants
violated the Due Process Clause. It is the Eighth Amendment that is relevant
to claims of the denial of medical care. Whitley v. Albers, 475 U.S. 312, 327
(1986). In the prison context, “the Due Process Clause affords . . . no greater
protection than does the Cruel and Unusual Punishments Clause.” Id.
      Carlucci’s motion for appointment of counsel is denied.
      AFFIRMED in part, VACATED in part, and REMANDED for further
proceedings. MOTION DENIED.




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