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 the 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 

extracting 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 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.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2013

Lyle W. Cayce

Clerk

 

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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 refused to treat Thibodeaux, both because he 

had no appointment and because prison officials had not provided the facility 

with the required paperwork to indicate the appropriate priority level of 

Thibodeaux’s surgery. Thibodeaux finally underwent surgery in September 

2012, almost two years after diagnosis.

On appeal, Thibodeaux contends that the extreme, multiple delays in his 

oral surgery constituted deliberate indifference to his serious medical needs 

and that the district court erroneously dismissed his complaint for failure to 

state a claim. He also claims that the magistrate judge erred by making 

credibility findings based on documents he provided along with his pleadings. 

He also insists 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 complaint 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 674, 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).

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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 substantial risk of 

serious harm may be inferred if 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) eight 

months elapsed before officials transported him to a medical facility; (3) that 

facility did not perform the surgery, allegedly because the prison officials made 

an appointment at one facility but sent him to another, and did not file 

appropriate paperwork; and (4) another year passed before Thibodeaux 

received surgery. Thibodeaux’s complaint further alleges that the named

prison officials deliberately—and not merely negligently—delayed taking the 

steps known to them that would have allowed the needed surgery to occur. The 

documents attached to Thibodeaux’s complaint corroborate his allegations,

illustrating his repeated (1) attempts to alert prison officials to his medical 

needs and (2) requests for updates on their progress in securing 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 Thibodeaux’s 

health, including prolonged suffering, and acted with deliberate 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).

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Whether Thibodeaux will be able to prove his allegations 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 consistent with 

this opinion.

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