### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30130

GERALD D. THIBODEAUX,

Plaintiff

- Appellant

v. PAT THOMAS; DOCTOR ENGLESON; TIM WILKINSON, CORRECTIONS CORPORATION OF AMERICA,

Defendants

- Appellees

Appeal from the United States District Court for th e Western District of Louisiana USDC No. 1:11

- CV

- 2135

Before JONES, WIENER, and GRAVES, Circuit Judges

. PER CURIAM: * Plaintiff

- Appellant Gerald D. Thibodeaux, Louisiana prisoner number 517407, appeals from the dismissal of his civil rights complaint for failure to state a claim , pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Thibodeaux’s complaint alleges cruel and unusual punishment resulting from a multi

- year delay in
extr ac ting his broken wisdom tooth. A prison dentist diagnosed the problem in October 2010 and attempted but failed to extract the tooth in November

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 5, 2013 Lyle W. Cayce Clerk Case: 13-30130 Document: 00512462245 Page: 1 Date Filed: 12/05/2013No. 13

- 30130 2010. The dentist referred Thibodeaux for oral surgery, but prison officials evidently transported Thibodeaux to a second facility, at which he had no appointment. The second facility refus ed to treat Thibodeaux, both because he had no appointment and because prison officials had not provided the facility with the required paperwork to indicat e the appropriate p riority level of Thibodeaux’s surgery. Thibodeaux fin ally underwent surgery in September
2012 , almost two years after diagnosis

. On appeal, Thibodeaux contends that the extreme, multiple delay s in his oral surgery constituted deliberate indifference to hi s serious medical needs and that the district court erroneously dismissed his complaint for failure to state a claim. He also claim s that the m agistrate judge erred by making credibility findings based on documents he provided along with his pleadings.
H e also insist s that the district court erred further by denying him leave to amend his complaint to add the prison company’s dental director as a defendant. We review a dismissal for failure to state a claim under § 1915(e)(2)(B)(ii) de novo , applying the same standard that we apply to dismissals under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 1 “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the comp laint are true (even if doubtful in fact).” 2 Prison officials violate the Eighth Amendment’s prohibition of cruel and unusual punishment when they demonstrate deliberate indifference to a prisoner’s serious medical needs if such indifference inflicts unnecessary suffering. 3 Deliberate indifference lies midway on the continuum between

1 Samford v. Dretke , 562 F.3d 6 74, 678 (5th Cir. 2009).
2 Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555 (2007) (internal citation omitted).
3 Estelle v. Gamble , 429 U.S. 97, 103

- 06 (1976). 2 Case: 13-30130 Document: 00512462245 Page: 2 Date Filed: 12/05/2013No. 13

- 30130 simple negligence and intentional conduct; a prison official shows deliberate indifference if “the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” 4 An official’s knowledge of a subs tantial risk of serious harm may be inferred i f the risk is obvious. 5 A delay in treatment may constitute an Eighth Amendment violation if a prison official’ s deliberate indifference results in substantial harm, including suffering during the period of delay. 6 Thibodeaux alleges that , (1) prison officials determined that his tooth required extraction surgery, which could not be provided on

- site ; (2) e ight months elapsed before officials transported him to a medical facility ; (3) that facility did not perform the surgery , allegedly because the pris on officials made an appointment at one facility but sent him to another, and did not file appropriate paperwork ; and (4) a nother year passed before Thibodeaux received surgery. Thibodeaux’s complaint further alleges that the named prison officials delibe rately

— and not merely negligently

— d elayed taking the steps known to them that would have allow ed the needed surgery to occur . The documents attached to Thibodeaux’s complaint corroborate his allegations , illustrat ing his repeated (1) attempts to alert pri son officials to his medical needs and (2) request s for updates on their progress in secur ing his treatment. Accepting these allegations as true, as we must for these purposes, we conclude that the prison officials were well aware of a serious risk to Thi bodeaux’s health , including prolonged suffering, and acted w ith delib erate indifference to that risk by delaying his treatment for almost two years

.

4 Farmer v. Brennan , 511 U.S. 825, 837 (1994).
5 Id. at 840

- 42.
6 Easter v. Powell , 467 F.3d 459, 464

- 65 (5th Cir. 2006). 3 Case: 13-30130 Document: 00512462245 Page: 3 Date Filed: 12/05/2013No. 13

- 30130
Whether Thibodeaux will be able to prove his alleg ations is another question, but it is not one that is currently before us. Thibodeaux’s allegations, however, state a colorable Eighth Amendment claim that rises above the speculative level. Accordingly, we REVERSE the district court’s dismissal of Thibodeaux’s complaint and REMAND for further proceedings c onsistent with this opinion.

4 Case: 13-30130 Document: 00512462245 Page: 4 Date Filed: 12/05/2013