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

                                                                  FILED
                                                                February 6, 2008
                               No. 06-20917
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk
BILLY WAYNE HUFFMAN

                                          Plaintiff-Appellant

v.

LANNETTE LINTHICUM, Division Director, TDCJ Health Services Division;
ALBERT D WELLS, DDS - Dental Director, UTMB/CMC; JERRY DON TOOLE,
DDS, Cluster Dental Director, UTMB/CMC

                                          Defendants-Appellees


                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 4:06-CV-308


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
      Billy Wayne Huffman, Texas prisoner #1188783, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(1). Huffman alleges that he suffers from, among other things,
intense physical pain, swollen gums, weight loss, disfigurement and stomach
pain due to the failure of the defendants to provide him with dentures and
further argues that because he has been denied dentures, he is forced to eat a


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-20917

soft food diet without medical supervision. Huffman alleges that the denial of
dentures amounted to deliberate indifference to his serious medical needs and
that he was denied dentures pursuant to an unconstitutional prison policy on
dentures.
      A district court may dismiss a complaint as frivolous “‘where it lacks an
arguable basis either in law or in fact.’” Denton v. Hernandez, 504 U.S. 25, 31-33
(1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). We review a
dismissal as frivolous for abuse of discretion. Martin v. Scott, 156 F.3d 578, 580
(5th Cir. 1998). Prison officials violate the constitutional prohibition against
cruel and unusual punishment when they demonstrate deliberate indifference
to a prisoner’s serious medical needs, constituting an unnecessary and wanton
infliction of pain. See Wilson v. Seiter, 501 U.S. 294, 297 (1991). “A serious
medical need is 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 v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006). To prevail on a claim
of deliberate indifference to medical needs, the plaintiff must establish that the
defendant denied him treatment, purposefully gave him improper treatment, or
ignored his medical complaints. Domino v. Texas Dep’t of Criminal Justice,
239 F.3d 752, 756 (5th Cir. 2001).
      If Huffman suffered the injuries and conditions he alleges, then he may
have a serious medical need for dentures. See Farrow v. West, 320 F.3d 1235,
1239-41, 1244 (11th Cir. 2003); Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.
2001); Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1988). Huffman alleged
that Toole made the decision denying his request for dentures following the
removal of his remaining teeth. As Toole has not yet responded to Huffman’s
complaint, and it is possible that Toole knew of and disregarded Huffman’s
serious medical need, Huffman’s claim against Toole is not frivolous and was not
appropriate for dismissal.



                                        2
                                  No. 06-20917

      Huffman alleged that Linthicum, Wells, and Toole implemented and/or co-
authored the purportedly unconstitutional prison policy on dentures, pursuant
to which he was denied dentures. Supervisory liability may exist where the
supervisory official “implement[s] a policy so deficient that the policy itself is a
repudiation of constitutional rights and is the moving force of the constitutional
violation.” Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987) (internal
quotation marks and citation omitted). Even if Huffman failed to allege facts
suggesting “overt personal participation” by Wells and Linthicum, the district
court did not address whether any of the defendants implemented a policy which
itself deprived Huffman of his constitutional rights. Thompkins, 828 F.2d
at 304.
      Because Huffman’s claims against Toole, Linthicum, and Wells are not
indisputably meritless, we vacate and remand the dismissal of these claims for
further proceedings. In so ruling, we express no opinion as to the ultimate
merits of the case. Although Huffman’s more definite statement included as a
defendant an “unnamed dentist” at the Lindsay Unit, Huffman failed to allege
any specific factual allegations implicating the unnamed dentist in the purported
violation of his constitutional rights. See Thompson v. Steele, 709 F.2d 381, 382
(5th Cir. 1983). Therefore, we affirm in part the district court’s dismissal to the
extent that the court dismissed as frivolous Huffman’s claims against the
unnamed dentist.
      Huffman’s motion for the appointment of counsel is denied.
      AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS; MOTION DENIED.




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