United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

___________ No. 96-2701

___________ Edward Allen Moore, *
* Appellant, *
* v. * Appeal from the United States
* District Court for the Western Ernest-Jackson, D.D.S.; James * District of Missouri. Keith, M.D.; Randee Kaiser; * Karen Cornell; Ralf Salke; * [PUBLISHED] Gerald Bommel; Steve Long; * John Sydow; Judy P. Draper; * Dora Schriro; William Wade, M.D.; * Richard Washington; David Dormire; * Michael Groose; ARA Services, * doing business as Correctional * Medical Systems, *
* Appellees. *

___________ Submitted: March 24, 1997 Filed: August 22, 1997

___________ Before BOWMAN, BRIGHT and WOLLMAN, Circuit Judges.

___________ PER CURIAM.

## -2- Appellant Edward Allen Moore, an inmate in Missouri, filed a pro se § 1983 action against several defendants for deliberate indifference to hi s serious dental needs. The district court dismissed ten defendants pursuan t to Fed.R.Civ.P. 4(m) (Time Limit for Service), then granted the remaining defendants summary ju dgment. Moore challenges these dismissals. He also asserts the district court erred by denying his motion to file an amended complaint as well as his motion for sanctions. Finally, Moore contend s there is no final ord er regarding his medical malpractice claim and third party contract claim. We affirm in part and reverse in part.

BACKGROUND
Correctional Medical Services (CMS) provides medical services f or the Missou ri penitentiary system through a contract with the Department o f Corr ections. On May 4, 1994, Moore submitted an Internal Resolutio n Request (IRR) seeking medical services and claiming that he "submitted a Medical Services Requ est a week ago and . . . still have not received any med ical services." Dist. Ct. Doc. (DCD) #55, Exh. 4, at 5. On June 7 , Moore sub mitted an Inmate Grievance in which he stated: "I submitted a request for medical s ervices the last week of April 1994 and I still have not received any medi cal services. . . . I request health services from a qualified health service professional." Id. , Exh. 2, at 3. The parties dispute whether Moore filed the referenced earli er Medical Service Request (MSR) complaining of dental problems. Moore did not detail his specific medical need in this document, or any other document mentioned here, until August 25.

On June 8, appellee Ralf Salke, Regional Administrator for CMS , responded to Moore's IRR of May 4 and advised Moore to submit his MS R directlyto Cornell. DCD #55, Exh. 4, at 2. On July 15, appellee Karen Cornell, Administrator at Jefferson City Correct ional Center, responded to Moore's June 7 Grieva nce with a letter stating that she did not locate an MSR filed by Moore in April. DCD #33, Exh. A-8. Cornell then advise d Moore to "submit an MSR and discuss it with the nurse." Id.

## -3- On Jul y 14, Moore wrote to Steve Long, Assistant Director of th e Missou ri Department of Corrections, and detailed his efforts to obtai n medical treatment. D CD #44, Exh. M. That letter eventually forwarded to Salke.

On Jul y 15, Moore filed an Inmate Grievance Appeal. DCD #44, Exh

. J. Again, he detailed his attempts to receive medical treatment.

On August 2, Salke wrote a letter to Moore regarding his IRRs an d Grievances. DCD #44, Exh. J at 2. Salke again advised Moore that "if you feel you are in need of medical services and your MSR is not bein g forwarded accordingly, please direct it to KarenCornell, . . . so she may arrange to see you wi thin the Health Care Unit." Id. Salke copied this letter to Cornell and Appellee Dr. James Keith. Salke wrote Moore another letter on August 3 regarding Moore's letter to Long. DCD #44, Exh. P.

On August 11, Moore submitted another Inmate Grievance Appeal i n which he stated: "I submitted a Medical Service Request (MSR) the las t week of April 1994. I have since submitted othe r MSR's, an IRR, an Inmate Grievance, an Inmate Grievance Appeal, and I have written Mr. Steve Long.

. . . To this day I have not been afforded access to health services." DC D #44, Exh. K. The Department Director Response from Judy Draper states tha t "[w]hile it is possible that occasionally an MSR is misplaced, I do no t find this is a trend or that it occurs frequently." Id.

On Au gust 19, 22 and 25, Moore submitted MSRs complaining of a tooth ache. DCD #33, Exhs. A-2, A-3, A-4. Moore asserts he also sent a letter to Cornell on August 25 complaining that MSRs were being discarded, thereby preventing him from getting treatment for an infected tooth causin g him tremendous pain. Moore provides a copy of t hat letter. DCD #44, Exh. L. Cornell, however, denies receiving that lett er and states she was "not personallyaware of Mr. Moore's dental problems in the summer or fall of 1994." DCD #33, Exh. B, at 2. There was no response to this letter.

## -4- At 7:00 p.m. on August 26, Moore sub mitted a more detailed MSR which stated : "infected tooth, swelling to face/neck, fever, discharge eye & nose, intense pain." DCD #33, Exh. A-5. A nurse examined Moore later tha t evening after Moore p ersuaded a prison guard to summon medical help. The nurse made the following notations under "Nursin g Assessment": "S) Tooth died back in June, started hurting back in April . Infection started about 3 wks ago. Had MSRs, Grievances, etc. to see medical." DCD #33, Exh. A-5

. The nurse noted that Moore complained of "severe pain" and that he had not been seen f or this problem. Id. She observed swelling of the jaw , prov ided Tylenol for pain relief, and referred Moore to dental. Id

. Appellee Dr. Ernest Jackson, a dentist, stated that "those symptoms were indicative of the tooth being inflamed with a possible infection in th e pul p of the tooth. Once a tooth has infection in the pulp it is almos t always rendered non restorable." DCD #33, Exh. A, at 3.

The next morning, Moore filed another MSR complaining of "intens e pain," "swelling" and "discharge." Id. at Exh. A-6. There was n o response. Moore eventually filed suit on November 4, 1994, and included the names and address es of all the defendants in his complaint. A dental appoint ment was then made for him on December 2. On that date, Jackso n extracted Moore's #14 tooth due to irreversible pulpitis.

After Moore filed suit, appellees moved for summary judgment

. Moore's request to am end his complaint was denied. On February 27, 1996, Unite d States Magistrate Judge William A. Knox recommended grantin g appellees Jackson's a nd Keith's motions for summary judgment, but denying ap pellees Salke's, Cornell's and CMS's motions for summary judgment

. Despite this recommendation, the district court granted summary judgment in favor of all appellees. Moore appeals.

## Rule 4(m) states: 1


## Time Limit for Service . If service of the sum mons and complaint is not made upon a defendant within 120 days after the filing of th e complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that

service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend th e time for service for an appropriate period.
-5- I.

Moore first challenges the district court's dismissal of numerou s de fendants pursuant to Federal Rules of Civil Procedure 4(m). Th e 1 district court granted Moore permission to proce ed in forma pauperis. DCD #5, at 3. Moore then requested that the court direct the United State s Marshal to effect ser vice to the defendants. DCD #8. The district court ordered the United St ates Marshal to effect service, but only after Moore
com pleted waiver of service forms. DCD #9. Moore contends that thi s constitutes error. We agree. We review the district court's decision to dismiss an action fo r untimely service for an abuse of discretion. Ed wards v. Edwards , 754 F.2d 298, 299 (8th Cir. 1988) (per curiam). 28 U.S.C. § 1915(d) states that, for purposes of proceeding in forma pauperis, "[ t]he officers of the court shall issue and serve all process, and perform all duties in such cases." This language is compulsory. Mallard v. United States Dist. Court fo r Southern Dist. of Iowa , 490 U.S. 296, 302 (1989) ("Congress . . . knew how to require service when it deemed compulsory service appropriate.")

. Submit ting a waiver of service is a component of "all process" and § 1915( d) compels the officers of the court to perform "all duties " associated with such process. "So long as the prisoner has furnished the information necessary to identify the defendant, the marshal's failure to effect service 'is automatically good cause with the meaning o f [Fed.R.Civ.P.

## Of course, a district court does not hav e to serve defendants if "it is determined 2 

## the lawsuit is b aseless and that the plaintiff cannot make any rational argument in law or fact entitling him to relief." Williams v. White , 897 F.2d 942, 944 (8th Cir. 1990).

-6- 4(m)].'" Walker v. Sumner , 14 F.3d 1415, 1422 (9th Cir. 1994) (internal citation omitted).
Moore's complaint lists all defendan ts and their addresses. DCD #1, at 2B. Accordingly, Moore's cause of action against these defendant s cannot be dismissed for failure to complete waiver of service forms becaus e an inmate such as Moo re, proceeding in forma pauperis, is not required to do so. Waiver of service is the responsibility of the United State s Marshal in these settings. 2

II.

Moore nex t argues that the district court erred by granting summary judgment. To succeed on his medical claims, Moore must prove by a preponderance of the evidence a "deliberate indifference to serious medica l needs. " Estelle v. Gamble , 429 U.S. 97, 106 (1976). Moore mus t demonstrate that the medical deprivation was objectively serious and that prison officials subjectively knew about the deprivation and refused t o remed yit. Crowley v. Hedgepeth , 109 F.3d 500, 502 (8th Cir. 1997). A medical need is serious if it is "obvious to the layperson or supported by medical evidence, like a physician's diagnosis." Aswegan v. Henry , 49 F.3 d 461, 464 (8th Cir. 1995).

The district court granted summary judgment for all five remainin g defendants, despite the recommendation of the magistrate judge that summar y judgment against Salke, Cornell and CMS should be denied. "We review a grant of summary judgment de novo; like the district court, we mus t construe the evidence in the light most favorable to the non-moving party. " Marts v. Xerox, Inc. , 77 F.3d 1109, 1112 (8th Cir.

## -7-

1996). Summary judgment is an extreme remedy, to be granted only if n o genuine issue exists as to any material fact. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
Viewing the facts in the light most favorable to Moore, it took from April 1994 until December 1994 for Moore to rece ive adequate treatment for
a toothache. The tooth became infected and ultimately required extraction

. Something appears wro ng with the dental care system. The question before
us is whether Moore has a civil rights claim that survives summar y judgment. We think it does.

A.

We affirm the district court's grant of summary judgment fo r appellees Salke and Keith. A careful review of the record reveals tha t the re is no evidence they knew about Moore's serious medical condition , "refused to verify underlying facts that [they] strongly suspected to be true , or declined to confirm inferences of risk that [they] strongl y suspected to exist . . . ." Farmer v. Brennan , 511 U.S. 825, 843 n. 8 (1994). B.

We reverse the district court's grant of summary judgment fo r appellee J ackson. Jackson, a dentist, asserts that he was unaware o f Moore's request for medical care until Moore fil ed suit in November, 1994. The district court as serted that Moore "provided no evidence to show that any of the defendants knew about his need for dental care prior to August 25, 1994, when he sent a letter to defendant Cor nell." DCD #61, at 2. We disagree.

It is reasonable to infer that Moore filed an MSR in Apri l complaining of tooth pain when we view the facts in the light mos t favorable to Moore. This is supported by the fact that his tooth wa s infected and ultimately required extraction. It is a

## We also disagree with the district court's grant of summary judgment because 3 

## Moore failed to present verifying medical evidence establishing the detrimental effect of the delay in his dental treatment. Crowley, 109 F.3d at 502. On August 26, Moore's "symptoms were indicative of the toot h being inflamed with a possible infection in the pulp of the tooth. Once a tooth has infection in the pulp it is almost always rendered
non restorable." DCD #33, Exh. A, at 3 (emphasis added). According to thi s diagno sis, it is possible to save a tooth that has infection in the pulp. Viewing th e evid ence in the light most favorable to Moore, the three month delay in treatmen t ensured the tooth would require extraction. Thus, because immedi ate dental care might have saved Moore's tooth it is up to the jury, not the trial court, todetermine if the three month delay exacerbated Moore's condition.
-8- reasonable inference from the record, then, that Moore was in pain in late April as a result of his tooth. In addition, we have more than Moore' s mere asse rtion that he filed the MSR and that it was lost. Appellee s con cede MSRs may be lost or misplaced. DCD #3, Attachment (Inmat e Grieva nce, Response). Furthermore, Moore filed grievances and an IR R complaining that his April MSR was lost. Assuming Moore filed the April MSR, it is a reasonab le inference from the record that Jackson knew about Moore's condition.
Furthermore, under the "Nursing Assessment" section of Moore's August 19 MSR (received by the dental department on August 25) there is a handwritten note, "#14 TE", followed by a number 1 with a circle around it

. DCD #33, Exh. A-2. While we do not know what the number and circl e signi fy, it is clear from reviewing all the medical records that "#14 " refers to the tooth t hat was eventually extracted, and that "TE" may mean "Tooth Ex traction." See, e.g., DCD #33, Exh. A-7, at 2 (containin g "Services Rendered" f orm regarding extraction of Moore's tooth); DCD #33, Exh

. A-7, at 3 (containing "Surgical/Medical Procedure Authorization " form). Moore asserts that only dentists may authorize tooth extractions. Whil e there may be other explanations for this notation, viewing th e evidence in the light most favorable to Moore requires us to conclude ther e is a material issue of fact regarding whether Jackson knew about Moore's dental problems before Moore filed suit, but failed to ensure that Moore was treated until December. 3

## Moore wrote in part: "My mos t serious problem is an infected tooth. . . . I am 4


## no w experiencing pain on the entire left side (the side with the infected tooth) of my face. My left eye ev en hurts. I am having a discharge from my left nostril that smells like dead fish. . . . The situation has become urgent." DCD # 44, Exh. L.
-9- D.

We also r everse the grant of summary judgment for appellee Cornell. The di strict court correctly determined, for purposes of reviewing th e motion for summary judgment, that Moore sent a l etter to Cornell on August 25 d etailing the pain resulting from his tooth. The district cour t 4 gra nted summary judgment for Cornell, however, on the basis that "[t]h e next day, a nurse examined plaintiff, . . . Thus, defendant Cornell wa s justified in believing plaintiff's problem had been remedied." DCD #61, at 2. This conclusio n, however, contradicts Cornell's affidavit in which she denies receiving Moore's August 25 letter, and states that she was "no t personallyaware of Mr. Moore's dental problems in the summer or fall of 1994." DCD #33, Exh. B, at 2. In short, Cornell could not be "justified in beli eving plaintiff's problem had been remedied" if she denies an y knowl edge that a dental problem existed. We agree with the magistrat e judge w ho noted that Moore "provided sufficient evidence to show tha t defendant Cornell knew about his need for dental care in August 1994, that she had a duty to ensure he received treatment a nd that she failed to take action. Whether defendant Cornell actually received plaintiff's lette r requesting dental care in August 1994, is a ques tion of fact . . . ." DCD #54, at 3-4.

E.
We also reverse the grant of CMS's m otion for summary judgment. CMS argues, and the district court held, that Moore failed to demonstrate a CM S policy or custom for destroying or ignoring MSRs that led to a constitutional deprivation. We

## -10-

agr ee with the magistrate judge, however, who noted that Moore present s "suffici ent evidence from which a jury could find that . . . MSRs wer e destroyed or mishandled and that as a result, serious medical needs were unaddressed; . . . ." DCD #54, at 4.
Appellees acknowledge that it is possible for MSRs to be misplaced. DCD #44, Exh. K. Ind eed, appellees concede that "[i]t is . . . difficult with the large number of dental MSRs to determine the real level of need, and avoid missing legitimate problems." DCD #33, Exh. A, at 3. Viewing the evidence in the l ight most favorable to Moore, he submitted an MSR in April. That MSR was misplaced or destroyed, consequently, he received no response to it. Further support for Moore's claim that CMS's custom o r policies resulted in the denial of medical care is the lack of response to his August 27 MSR.
In fact, Moore only received dental care for his infected tooth after he complained to a prison guard and filed this l awsuit. It is appropriate for a jury , not the courts, to determine whether CMS had a custom o r procedure of misplacing, ignoring or destroying MSRs with resulting harm to the inmates.
The district court determined, alter natively, that even if "MSRs are destroyed pursuant to an institutional custom an d [Moore's] constitutional injuries resulted from that custom . . . that [Moore's] claims still fail. " DCD #61, at 2. The district court supported this statement by observing that Moore failed to follow Salke's advice to submit his MSR directly to Cornell. As an initial matter, we disagree with the district court' s conclusion that there is no issue for a jury when an inmate complains to prison officials of a medical need, the officials intentionally destro y such c ommunications without acting on them pursuant to an institutiona l cust om, and the inmate's tooth becomes infected, dies and is finall y extracted more than seven months after the initial complaint.

## Although we cannot affirm summary judgmen t for Jackson, Cornell or CMS on 5 

## the basis provided by the district court, we review the record to determine if summary judgmentc an be affirmed on other grounds. One reason appellees provide for no t tr eating Moore before December 2 is because "[t]he fact that the dental unit did no t receive any further MSRs [after Moore was seen by a nurse on August 26] complaining of severe pain in the months of September, October and November . . . gave rise to the presumption of the dental assistant that Mr. Moore's tooth no longer had detectabl e nerve enervation, and was thus not a medical emergency." DCD # 33, Exh. A, at 3-4. This statement is misleading. Moore filed a MSR complaining of severe pain the day after the nurse saw him. Furthermore, appellees' representations, when examined in context of other statements, place Moore in a disturbing Catch-22 if he wishes t o receive dental treatment. See Joseph Heller, Catch-22 (Simon and Schuster 1961 ) (1955). On the one hand, appellees chastise Moore's numerous attempts in April

August to bring attention to his allegedly misplaced MSR as impeding dental treatment:

The J efferson City Correctional Center has an inmate populatio n of over 2,000. . . . Multiple submissions of the same MSR complaint will
no t accomplish obtaining an appointment earlier. . . . The repeate d subm issionof MSRs and grievances only impedes service in that eac h MSR and grievance takes away valuable service time to proces s unnecessary paperwork. Appellees' Brief at 5. On the other h and, Moore's decision to file only one MSR after he was examined on August 26 "gave rise to the presumption . . . that Mr. Moore' s to oth. . . was . . . not a medical emergency." DCD #33, Exh. A, at 3-4. Thi s -11- Furthermore, a reasonable reading of Salke's letter to Moore su ggests that Moore followed Salke's advice rather than i gnored it. Salke informed Moore that if he is "in need of medical services and [his] MSR is no t being forwarded accordingly, please direct it to Karen Cornell, . . . ." DCD #44, Exh. J, at 2. This statement appears to refer specifically to th e April M SR, which was the basis of Moore's IRR reviewed by Salke. Moor e produced a copy of a letter to Cornell regardin g that MSR and was seen by
a nurse. He filed a new MSR on the following day seeking treatment

. Although he did not file this MSR with Cornell, a reasonable inference fro m the record is that Moore believed he should file his new MSR through norma l channels because Salke's letter advising Moore to contact Cornell concerne d only his April MSR. Accordingly, we reverse the grant of summary judgment in favor of CMS. 5

## contradiction speaks for itself.
-12- III.

Our r eview of the district court order confirms that the distric t court did not address Moore's medical malpractice claim against Dr. Jackso n or his third party beneficiary contract claim against CMS. Accordingly, these issues remain before the district court.

IV.

Moore als o asserts that the district court erred by denying hi s motion to amend his complaint. The district court's denial was withou t preju dice. "[L]eave [to amend a complaint] shall be freely given whe n justice so requires." Fed.R.Civ.P. 15(a). "Leave to amend should b e gra nted absent a good reason for the denial, such as undue delay, ba d faith, undue prejudice to the nonmoving party, or futility." Fuller v

. Secretary of Defense of the United States , 30 F. 3d 86, 88 (9th Cir. 1994). We review the district court's decision for an abuse of discretion. Id.

Moore sought to amend his complaint by adding three defendant s shortly after appelle es moved for summary judgment. The magistrate judge denied that request "without prejudice to reconsideration if his claim s survive . . . summary judgment." DCD #43. The denial did not constitute an abuse of discretion.

V.

## -13- Finally, Moore argues that the district court erred by denying hi s motion for discovery sanctions. We review the district court's denial to compel discovery for a gross abuse of discretion

. Kinkead v. Southwestern Bell Tel ephone Co. , 49 F.3d 454, 457 (8th Cir. 1995). After a carefu l review of the record, we conclude that the district court did not abuse it s discretion.

CONCLUSION
Accordingly, we affirm the district court's denial of Moore's motion to file an amended complaint and his motion for sanctions. We also affirm the grant of summary judgment for Salke and Keith. We reverse the distric t court's grant of summary judgment for Jackson, C ornell and CMS, as well as the dismissal of defendants pursuant to Fed.R.Civ.P. 4(m). Moore's medica l malpractice claim and third party contract claim remain before the distric t court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.