The Honorable William R. Wilson, Jr., United States District Judge for th e 1 Eastern District of Arkansas.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2342

___________ Shirley Ann Franklin, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Arkansas Harry A. Zain, M.D., * * Appellee. *

___________ Submitted: June 5, 1998 Filed: August 7, 1998

___________ Before McMI LLIAN, BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ McMILLIAN, Circuit Judge.
Shirley An n Franklin appeals from a final order entered in the United State s District Court for the Eastern District of Arkansas dismissing her negligence claim

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against Dr. Harry A. Z ain for lack of subject matter jurisdiction. Franklin v. Wallace , No. LR-C-96-934 (E.D. Ark. June 3, 1998) (order following remand for clarification); id. (Apr. 11, 1997) (order remanding case to state cour t). For reversal, Franklin argues the distr ict court erred in dismissing her claim because her complaint stated a clai m against Zain under 42 U.S.C. § 1983. For the reasons discussed below, which ar e different from those relied upon by the district court, we modify the order of the district court to di smiss the pendent state claim without prejudice and to toll the period o f limitations as noted and affirm the order as modified.
The district court had

subject matter jurisdiction over this civil rights complaint under 28 U.S.C. §§ 1331, 1343; as discussed below, the district court had supplemental ju risdiction over the pendent negligence claim against Zain under 28 U.S.C. § 1367

. The notice of appeal was timely filed under Fed. R. App. P. 4(a). We have jurisdiction over the final order of the district court under 28 U.S.C. § 1291.

In Novemb er 1996 Franklin filed a complaint in federal district court agains t Zain, the state of Arkansas, the Arkansas Department of Corrections (ADC), an d Virginia W allace, in her official capacity as Warden of the ADC’s Tucker Unit fo r Women, in violation of 42 U.S.C. §§ 1983, 1985. The complaint did not assert diversity as a basis for subject matter jurisdiction. According to her complaint, in 1994 Franklin was an ADC inmate; she sought medical treatment for urinary tract problems from June to November 1994; ADC emp loyees provided medical treatment on several occasions which failed

to adequately treat her problems. On November 28, 1994, the state made arrangements for Zain to treat Franklin. Because Zain confused her with another patient, Zain told Franklin th at her tests showed she had cervical cancer. Zain performed a biopsy and afterward explained the confusion and told her the biopsy had been unnecessary. Franklin’s urinary tract problems went untreated, and sh e experienced swelling, bleeding and pain that continued through January 1995 because of the unnecessary biopsy. ADC scheduled another appointment for Franklin to se e Zain, but she declined to see him.-3-

In her complaint Franklin alleged that “the acts and conduct of Defendants” in mistakenly testing for cervical cancer instead of treating the urinary tract infectio n cons tituteddeliberate indifference to her serious medical needs. She also asserted a pendent state claim for negligence against Zain. The complaint described Franklin and the individual defenda

nts as residents of Arkansas. Zain filed an answer asserting the district court lacked jurisdiction over him and the claim against him should have been broug ht in state court; he also denied that he was a resident of Arkansas. The stat e defendants filed motions to dismiss. The district court dis missed the federal civil rights claim against the state defendants on the ground of Elevent h Amendment immunity and grante d Franklin’s motion to amend the complaint to add a claim against defendan t Wallace in her individual capacity. Slip op. at 3 (Mar. 12, 1997) (order).
Zain the n filed a motion to remand the remaining pendent state claim to stat e court under 28 U.S.C. § 1367(c)(3). Zain chara cterized Franklin’s complaint as a civil rights action that included a pendent state claim for negligence against him. He argued that the dismissal of the underlying federal civil rights claim against th e state defendants left no independent basis for subject matter jurisdiction ov er the pendent state claim for neglig ence against him except supplemental jurisdiction under 28 U.S.C. § 1367

. Fran klinfiled an untimely response to the motion to remand. The response did no t make any specific argument but instead admitted or denied the allegati ons in the motion to rem and. The response denied the paragraph which asserted that the district cour t had dismissed the underlying federal civil rights claim against all the defendants.
Franklin also filed an amended complaint adding two new defendants, PH P Health care Corp. (PHP), an organization under contract with the state to provid e healthcare to ADC inmates, and another individual who was an employee of eithe r ADC or PHP. The amended complaint stated that Zain was a resident of Tennesse e but did not assert diversity as a basis for subject matter jurisdiction. The district court struc k the amended complaint on the ground that it had authorized Franklin only t o amend her complaint by adding an indiv idual capacity claim against Wallace. Slip op.-4-

a t 2 (Apr. 11, 1997) (order) (noting that, pursuant to Fed. R. Civ. P. 15, party cannot amend complaint after responsive pleading h as been filed without leave of court). The dis trict court also granted Zain’s motion to remand on the ground that the onl y remaining claim was a pende nt state claim, not a federal claim, and “closed” the case. Id. This appeal followed. For reversal, Franklin argued that her complaint stated a feder al civil rights claim against Zain under 4 2 U.S.C. § 1983 and the district court therefore had no discretion to re mand her claim to state court. She acknowledged that the claim against Zai n individu ally was set forth under the heading “pendent state claim” but argues that the complaint made clear that all the defendants, including Zain, were being sued pursuant to 42 U.S.C. § 1983. She argued that both the unnecessary biopsy and the failure to treat her urinary tract problems constituted deliberate indifference to her seriou s medical needs in violation of the Eighth Amendment. Zain argued that Frankli n consistently referred to her claim against him as a pendent state claim throughout the district court proceedings and that she cannot re-label her claim aga inst him as a federal civil rights claim for the first time on appeal.
After the briefs were filed, we noted that, because this case was initially filed in federal district court, not state court, it was not a removed case and therefore could not be remanded to state court. E.g., Carnegie-Mellon University v. Cohill , 484 U.S. 343 (1988) (discussing removal and remand under 28 U.S.C. § 1441). We remanded the case to the district court for the limited purpose of allowing the district court to clarify its April 1997 order. Relyingon the reasons stated in its April 1997 order, the district court deni ed the motion to remand and dismissed the case for lack of subject matte r ju risdiction. Slip op. (June 3, 1998) (order following remand for clarification). W e have considered the parties’ arguments and have carefully reviewed th e record. For the
reas ons discussed below, which are different from those relied upon by the distric t court, we affirm the order of the district court. E.g., United States v. Sager , 743 F.2d-5-

1261, 126 3 n.4 (8th Cir. 1984) (court of appeals can affirm judgment of district court on any ground supported by the record), cert. denied , 469 U.S. 1217 (1985).
First , we agree with Franklin that her complaint asserted a federal civil right s claim against all the defendants, including Zain. As noted above, the complaint alleged “the acts and conduct of Defendants” constituted deliberate indifference to her serious medical need s. In the remand order the district court described the complaint a s alleging claims under 42 U.S.C. §§ 1983, 1985 against Wallace, in her offici al capacity, the state, and Zain, and a pendent state law claim against Zain. Slip op. at 1 & n. 1 (Apr. 1 1, 1997) (order). The district court had subject matter jurisdiction over th e federa lcivil rights claim against Zain. However, even considering all well-pleade d factual allegations in the complaint to be true, the complaint at most alleged negligence
or p ossibly gross negligence. Zain confused Franklin with another patient, Frankli n un derwent

an unnecessary medical test, and her medical problems were not treated

. Arrangements were made for follow-up treatment by Zain, but Franklin declined to see him. Zain did not refuse to treat her once he realized his mistake. See Estelle v

. Gamble , 42 9 U.S. 97, 107 (1976) (medical negligence is not enough to maintain a 42 U.S.C. § 1 983 action for deliberate indifference); Estate of Rosenberg ex rel

. Rosenberg v. Crandell , 56 F.3d 35, 37 (8th Cir. 1995) (showing of even gros s negligence is not enough to establish de liberate indifference to serious medical needs). Because Zain was not de liberately indifferent to Franklin’s serious medical needs, the complaint failed to state an Eighth Amendment claim agains t Zain and the district court correctly dismissed it. After the district court dismissed the underly ing federal civil rights claim against the state defendants (Franklin has not appealed the dismissal of the state defendants) and Zain, the only remaining cla im was the pendent state claim against Zain. Franklin failed to assert an independent jurisdictional basis for the pendent state claim in theThere may have been complete diversity of citizenship once the sta te defendants 2 hadbeen dismissed. See Baylis v. Marriott Corp. , 843 F.2d 658, 665 (2d Cir. 1988) (holding diversity jurisdiction may exist on ce federal claims are dismissed against only nondiverse par ty); Philan Ins. Ltd. v. Frank B. Hall & Co. , 786 F. Supp. 345, 34 8 (S.D.N.Y

. 1992) (holding existence of diversity jurisdiction should be considered i n light of dismissal of RIC O counts and nondiverse defendants). The complaint alleged Frankli n was a resident of Arkansas, Zain’s answer denied he was a resident o f Arkan sas, and the amended complaint, which the district court struck fo r non-compliance, s tated Zain was a resident of Tennessee. However, Franklin did not allege diversity jurisdic tion in either the complaint or the amended complaint or in her brief o n appeal, and the district court did not consider diversity as an independen t jurisdictional basis.

-6- proceedings in the district court. The district court had supplementa l jurisdiction under 2 28 U.S.C. § 1367(a) over the pendent state claim which arose o ut of the same incidents and addressed th e same course of conduct as the underlying federal civil rights claim. Unlike a claim ove

r which it has original jurisdiction, the district court may decline to
exerc ise supplemental jurisdiction over a pendent state claim if it has dismissed al l claim s over which it has original jurisdiction. Id. § 1367(c)(3). In our view, that i s what in effect happened in the present case. The district court had subject matter over the feder al civil rights claim against all the defendants and supplemental jurisdictio n over the pendent state c laim against Zain; once the district court dismissed the federal civil rights claim against the state defendants on immunit y grounds and against Zain for failure to state a claim, the only remaining claim was the pendent state claim agains t Zain, for which no independent jurisdictional basis had been asserted; having dismissed all claims over which it had original jurisdiction, the district court declined to exercise supplemental jurisdiction over the pendent state claim, first by rema nding and “closing” the case, and then by dismissing it.

We ho ld the district court did not abuse its discretion in declining to exercis e supplemental jurisdiction over the pendent state claim pursuant to 28 U.S.C.-7-

§ 1367(c )(3). Pursuant to 28 U.S.C. § 1367(d), the period of limitations for th e pendent state claim shall be tolled for the period while the claim was pending and for
aperiod of 30 days after it is dismissed unless state law provides for a longer tolling period. Accordingly, the order of the district court is modified to dismiss the penden t state claim without prejudice and to toll the period of limitations as noted. The order of the district court is affirmed as modified.

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