United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-1445

___________ 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 Groose; David Dormire; Gerald * Bommel; Steve Long; Pat Faherty; * [UNPUBLISHED] Chris Swicord; Ray New; Correctional * Medical Systems, Inc., * * Appellees. *

___________ Submitted: August 7, 1997 Filed: August 29, 1997

___________ Before McMILLIAN, BEAM, an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.
Edward Allen Moore appeals the district court orders dismissing certai n defendants and granting summary judgment to the remaining defendants in this 4 2 U. S.C. § 1983 action claiming deliberate indifference to serious medical needs. W e affirm in part and reverse in part.Now codified at 28 U.S.C. § 1915(e) (2). 1
-2- Moore brought this action against various state offici als, officials and employees of Jeff erson 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. Unde r prison and CMS policy, an inmate req uested medical services by submitting a medical service r equest (MSR). Moore maintains that from June to November 1993, h e submitted weekly MSRs seeking treatment for a fungal infection in his groin area and a skin condition on his chest. Moo re 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 schedu le an appointment with a doctor for his other skin condition--he received no response to his weekly MSRs.

The dist rict court dismissed Moore’s claims against defendants Dora Schriro , Mi chael Groose, David Dormire, and Gerald Bommel as frivolous pursuant to 2 8 U.S.C. sec tion 1915(d), and denied Moore’s motion to amend his complaint. Th e 1 district court gra

nted summary judgment to the remaining defendants, concluding that as to Mercier and CMS, Moore produced n o verifying medical evidence that the delay in tr eatment was detrimental to his condition, or that they knew of his need fo r trea tment and denied treatment with a culpable state of mind; as to the othe r defendants, the court determined there was no evidence t hey were involved in Moore’s medical care from July to No vember 1993, or knew of Moore’s need for medical care and prevented him from receiving that care.

We co nclude summary judgment was improper as to Mercier, and the cour t
a b used 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--3-

de fendant CMS Regional Administrator did he obtain the treatment he sought. W e believe Moore & s evidence is sufficient to create a genuine issue as t o whether his MSRs were being lost or destroyed, and as to whether defendants were delibera tely indifferent to Moore & s serious medical needs when they tur ned a deaf ear to his repeated pleas for assistance

. See Johnson v. Lockhart , 941 F.2d 705, 707 (8th Cir. 1991) (priso n offi cials & abdication of oversight and policymaking responsibility can constitut e deliberate indifference when facts indicate tacit authorization of subordinates & misconduct); John son-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 i s serious medical need for summary judgment purposes).

We also conclude CMS may share potential liability, as Moore & s evidenc e created a question as to whether CMS & s customs or policies in distributing an d 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 no t proper party where plaintiff did not allege provider was directly involved i n injury or injury resulted from policy or custom).
As Moore presented no evidence Groose was aware of his complaints, we agree withthe district court that dismissal as to Groose was proper. We also agree tha t
summa ry judgment was proper as to defendants Long, Faherty, Swicord, New, an d Sydo w, as Moore provided no evidence they were involved in or knew of hi s complaints. We rej ect Moore & s argument that the summary judgment motion of these defendants was untimely, given the district court & s Feb ruary 1, 1994 stay of all pending matters. Finally, without t

he proposed amended complaint, it is impossible to determine whether the district court abused its discretion in denying Moore’s motion to amend his-4-

complaint. See Brown v. Walla ce , 957 F.2d 564, 565-66 (8th Cir. 1992) (per curiam) (standard of review). Under Feder al Rule of Civil Procedure 15(a), “leave [to amend] shall be freely given wh en justice so requires.” To the extent Moore sought to amend his initial notice pleading to specific ally set forth the claims the parties have addressed in their summary judgment p leadings, 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 prejudic e to party opposing amendment).
Accordingly, we affirm the district court & s dismissal a s to defendant Groose, and its grant of summary judgment to defendants Long, Faherty, Swicord, New, an d Sydow. We reverse the court & s dismi ssal as to Dormire, Bommel, and Schriro, and its grant of su mmary judgment to Mercier and CMS, and we remand for furthe r proceedings.
A true copy.

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