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Carlucci v. Chapa

United States Court of Appeals, Fifth Circuit

March 9, 2018

GINO CARLUCCI, 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.

          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 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.

          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 ...


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