United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-1445

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Edward Allen Moore, *

 *

Appellant, *

 *

v. * Appeal from the United States

 * District Court for the

David J. Mercier; Dora Schriro; Michael * Western District of Missouri.

Groose; David Dormire; Gerald *

Bommel; Steve Long; Pat Faherty; * [UNPUBLISHED]

Chris Swicord; Ray New; Correctional *

Medical Systems, Inc., *

 *

Appellees. *

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 Submitted: August 7, 1997

 Filed: August 29, 1997

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Before McMILLIAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

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PER CURIAM.

Edward Allen Moore appeals the district court orders dismissing certain

defendants and granting summary judgment to the remaining defendants in this 42

U.S.C. § 1983 action claiming deliberate indifference to serious medical needs. We

affirm in part and reverse in part. 
Now codified at 28 U.S.C. § 1915(e) (2). 1

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Moore brought this action against various state officials, officials and employees

of Jefferson City Correctional Center (JCCC), Correctional Medical Services, Inc.

(CMS), and CMS&s on-site Health Services Administrator, David Mercier. During the

relevant time, CMS was the contract provider of medical services to JCCC. Under

prison and CMS policy, an inmate requested medical services by submitting a medical

service request (MSR). Moore maintains that from June to November 1993, he

submitted weekly MSRs seeking treatment for a fungal infection in his groin area and

a skin condition on his chest. Moore contends that after an initial July 21 examination

by a nurse--who promised to provide an anti-fungal ointment for his groin condition and

to schedule an appointment with a doctor for his other skin condition--he received no

response to his weekly MSRs.

The district court dismissed Moore’s claims against defendants Dora Schriro,

Michael Groose, David Dormire, and Gerald Bommel as frivolous pursuant to 28

U.S.C. section 1915(d), and denied Moore’s motion to amend his complaint. The

1

district court granted summary judgment to the remaining defendants, concluding that

as to Mercier and CMS, Moore produced no verifying medical evidence that the delay

in treatment was detrimental to his condition, or that they knew of his need for

treatment and denied treatment with a culpable state of mind; as to the other

defendants, the court determined there was no evidence they were involved in Moore’s

medical care from July to November 1993, or knew of Moore’s need for medical care

and prevented him from receiving that care. 

 

We conclude summary judgment was improper as to Mercier, and the court

abused its discretion in dismissing Dormire, Bommel, and Schriro. Moore presented

evidence that through the inmate grievance system, he repeatedly alerted these officials

to his inability to obtain treatment, and they repeatedly responded by denying he had

submitted MSRs and instructing him to do so. Only when Moore appealed to a non-
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defendant CMS Regional Administrator did he obtain the treatment he sought. We

believe Moore&s evidence is sufficient to create a genuine issue as to whether his MSRs

were being lost or destroyed, and as to whether defendants were deliberately indifferent

to Moore&s serious medical needs when they turned a deaf ear to his repeated pleas for

assistance. See Johnson v. Lockhart, 941 F.2d 705, 707 (8th Cir. 1991) (prison

officials& abdication of oversight and policymaking responsibility can constitute

deliberate indifference when facts indicate tacit authorization of subordinates&

misconduct); Johnson-El v. Schoemehl, 878 F.2d 1043, 1055 (8th Cir. 1989) (“Delay

in the provision of treatment or in providing examinations can violate inmates& rights

when the inmates& ailments are medically serious or painful in nature.”); cf. Logan v.

Clarke, No. 97-1314, slip op. at 5 (8th Cir. July 10, 1997) (painful skin infection is

serious medical need for summary judgment purposes).

We also conclude CMS may share potential liability, as Moore&s evidence

created a question as to whether CMS&s customs or policies in distributing and

processing MSRs led to Moore&s inability to obtain medical care. Cf. Ort v. Pinchback,

786 F.2d 1105, 1107 (11th Cir. 1986) (per curiam) (prison medical services provider

was not proper party where plaintiff did not allege provider was directly involved in

injury or injury resulted from policy or custom).

As Moore presented no evidence Groose was aware of his complaints, we agree

with the district court that dismissal as to Groose was proper. We also agree that

summary judgment was proper as to defendants Long, Faherty, Swicord, New, and

Sydow, as Moore provided no evidence they were involved in or knew of his

complaints. We reject Moore&s argument that the summary judgment motion of these

defendants was untimely, given the district court&s February 1, 1994 stay of all pending

matters. 

Finally, without the proposed amended complaint, it is impossible to determine

whether the district court abused its discretion in denying Moore’s motion to amend his
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complaint. See Brown v. Wallace, 957 F.2d 564, 565-66 (8th Cir. 1992) (per curiam)

(standard of review). Under Federal Rule of Civil Procedure 15(a), “leave [to amend]

shall be freely given when justice so requires.” To the extent Moore sought to amend

his initial notice pleading to specifically set forth the claims the parties have addressed

in their summary judgment pleadings, we believe such amendment should be allowed.

See Sanders v. Clemco Indus., 823 F.2d 214, 217 (8th Cir. 1987) (delay alone is not

by itself reason to deny leave to amend; delay must have resulted in unfair prejudice

to party opposing amendment). 

Accordingly, we affirm the district court&s dismissal as to defendant Groose, and

its grant of summary judgment to defendants Long, Faherty, Swicord, New, and

Sydow. We reverse the court&s dismissal as to Dormire, Bommel, and Schriro, and its

grant of summary judgment to Mercier and CMS, and we remand for further

proceedings. 

A true copy.

Attest:

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