The Honorable William R. Wilson, Jr., United States District Judge for the

1

Eastern District of Arkansas. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2342

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Shirley Ann Franklin, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas

Harry A. Zain, M.D., *

*

Appellee. *

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 Submitted: June 5, 1998

 Filed: August 7, 1998 

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

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McMILLIAN, Circuit Judge.

Shirley Ann Franklin appeals from a final order entered in the United States

District Court1for the Eastern District of Arkansas dismissing her negligence claim
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against Dr. Harry A. Zain 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 court). For reversal, Franklin argues

the district court erred in dismissing her claim because her complaint stated a claim

against Zain under 42 U.S.C. § 1983. For the reasons discussed below, which are

different from those relied upon by the district court, we modify the order of the district

court to dismiss the pendent state claim without prejudice and to toll the period of

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

jurisdiction 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 November 1996 Franklin filed a complaint in federal district court against

Zain, the state of Arkansas, the Arkansas Department of Corrections (ADC), and

Virginia Wallace, in her official capacity as Warden of the ADC’s Tucker Unit for

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 employees 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 that 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 she

experienced swelling, bleeding and pain that continued through January 1995 because

of the unnecessary biopsy. ADC scheduled another appointment for Franklin to see

Zain, but she declined to see him.
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In her complaint Franklin alleged that “the acts and conduct of Defendants” in

mistakenly testing for cervical cancer instead of treating the urinary tract infection

constituted deliberate indifference to her serious medical needs. She also asserted a

pendent state claim for negligence against Zain. The complaint described Franklin and

the individual defendants as residents of Arkansas. Zain filed an answer asserting the

district court lacked jurisdiction over him and the claim against him should have been

brought in state court; he also denied that he was a resident of Arkansas. The state

defendants filed motions to dismiss. The district court dismissed the federal civil rights

claim against the state defendants on the ground of Eleventh Amendment immunity and

granted Franklin’s motion to amend the complaint to add a claim against defendant

Wallace in her individual capacity. Slip op. at 3 (Mar. 12, 1997) (order).

Zain then filed a motion to remand the remaining pendent state claim to state

court under 28 U.S.C. § 1367(c)(3). Zain characterized 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 the state defendants

left no independent basis for subject matter jurisdiction over the pendent state claim for

negligence against him except supplemental jurisdiction under 28 U.S.C. § 1367.

Franklin filed an untimely response to the motion to remand. The response did not

make any specific argument but instead admitted or denied the allegations in the motion

to remand. The response denied the paragraph which asserted that the district court

had dismissed the underlying federal civil rights claim against all the defendants.

Franklin also filed an amended complaint adding two new defendants, PHP

Healthcare Corp. (PHP), an organization under contract with the state to provide

healthcare to ADC inmates, and another individual who was an employee of either

ADC or PHP. The amended complaint stated that Zain was a resident of Tennessee

but did not assert diversity as a basis for subject matter jurisdiction. The district court

struck the amended complaint on the ground that it had authorized Franklin only to

amend her complaint by adding an individual capacity claim against Wallace. Slip op.
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at 2 (Apr. 11, 1997) (order) (noting that, pursuant to Fed. R. Civ. P. 15, party cannot

amend complaint after responsive pleading has been filed without leave of court). The

district court also granted Zain’s motion to remand on the ground that the only

remaining claim was a pendent state claim, not a federal claim, and “closed” the case.

Id. This appeal followed.

For reversal, Franklin argued that her complaint stated a federal civil rights claim

against Zain under 42 U.S.C. § 1983 and the district court therefore had no discretion

to remand her claim to state court. She acknowledged that the claim against Zain

individually 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 serious

medical needs in violation of the Eighth Amendment. Zain argued that Franklin

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 against 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. Relying on the reasons stated in its April 1997 order, the district

court denied the motion to remand and dismissed the case for lack of subject matter

jurisdiction. Slip op. (June 3, 1998) (order following remand for clarification). We

have considered the parties’ arguments and have carefully reviewed the record. For the

reasons discussed below, which are different from those relied upon by the district

court, we affirm the order of the district court. E.g., United States v. Sager, 743 F.2d
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1261, 1263 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 rights

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 needs. In the remand order the district court described the complaint as

alleging claims under 42 U.S.C. §§ 1983, 1985 against Wallace, in her official capacity,

the state, and Zain, and a pendent state law claim against Zain. Slip op. at 1 & n.1

(Apr. 11, 1997) (order). The district court had subject matter jurisdiction over the

federal civil rights claim against Zain. However, even considering all well-pleaded

factual allegations in the complaint to be true, the complaint at most alleged negligence

or possibly gross negligence. Zain confused Franklin with another patient, Franklin

underwent 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, 429 U.S. 97, 107 (1976) (medical negligence is not enough to maintain a 42

U.S.C. § 1983 action for deliberate indifference); Estate of Rosenberg ex rel.

Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995) (showing of even gross

negligence is not enough to establish deliberate indifference to serious medical needs).

Because Zain was not deliberately indifferent to Franklin’s serious medical needs, the

complaint failed to state an Eighth Amendment claim against Zain and the district court

correctly dismissed it.

After the district court dismissed the underlying federal civil rights claim against

the state defendants (Franklin has not appealed the dismissal of the state defendants)

and Zain, the only remaining claim was the pendent state claim against Zain. Franklin

failed to assert an independent jurisdictional basis for the pendent state claim in the
There may have been complete diversity of citizenship once the state defendants 2

had been dismissed. See Baylis v. Marriott Corp., 843 F.2d 658, 665 (2d Cir. 1988)

(holding diversity jurisdiction may exist once federal claims are dismissed against only

nondiverse party); Philan Ins. Ltd. v. Frank B. Hall & Co., 786 F. Supp. 345, 348

(S.D.N.Y. 1992) (holding existence of diversity jurisdiction should be considered in

light of dismissal of RICO counts and nondiverse defendants). The complaint alleged

Franklin was a resident of Arkansas, Zain’s answer denied he was a resident of

Arkansas, and the amended complaint, which the district court struck for

non-compliance, stated Zain was a resident of Tennessee. However, Franklin did not

allege diversity jurisdiction in either the complaint or the amended complaint or in her

brief on appeal, and the district court did not consider diversity as an independent

jurisdictional basis. 

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proceedings in the district court. The district court had supplemental jurisdiction under 2

28 U.S.C. § 1367(a) over the pendent state claim which arose out of the same incidents

and addressed the same course of conduct as the underlying federal civil rights claim.

Unlike a claim over which it has original jurisdiction, the district court may decline to

exercise supplemental jurisdiction over a pendent state claim if it has dismissed all

claims over which it has original jurisdiction. Id. § 1367(c)(3). In our view, that is

what in effect happened in the present case. The district court had subject matter over

the federal civil rights claim against all the defendants and supplemental jurisdiction

over the pendent state claim against Zain; once the district court dismissed the federal

civil rights claim against the state defendants on immunity grounds and against Zain for

failure to state a claim, the only remaining claim was the pendent state claim against

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 remanding and “closing”

the case, and then by dismissing it.

We hold the district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over the pendent state claim pursuant to 28 U.S.C.
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§ 1367(c)(3). Pursuant to 28 U.S.C. § 1367(d), the period of limitations for the

pendent state claim shall be tolled for the period while the claim was pending and for

a period 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 pendent

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.