from the United States District Court for the Western
District of Texas
HIGGINBOTHAM, SOUTHWICK, and COSTA, Circuit Judges.
H. SOUTHWICK, CIRCUIT JUDGE
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
notified Associate Warden Niles and Human Resources
Coordinator Dunnigan of his dental problems. 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
January 2014, Carlucci met again with Niles and Dunnigan, who
again told Carlucci that they were trying to have his dental
problems 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.
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."
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
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).
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).
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 ...