IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-50025

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. 

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2018

Lyle W. Cayce

Clerk

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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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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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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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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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