Moore v. Jackson

• Decision Date: 15 October 1997
• Docket Number: No. 96-2701,96-2701
• Citation: 123 F.3d 1082
• Parties: Edward Allen MOORE, Appellant, v. Ernest JACKSON, D.D.S.; James Keith, M.D.; Randee Kaiser; Karen Cornell; Ralf Salke; 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.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1082

123 F.3d 1082

38 Fed.R.Serv.3d 1450

Edward Allen MOORE, Appellant, v. Ernest JACKSON, D.D.S.; James Keith, M.D.; Randee Kaiser;

Karen Cornell; Ralf Salke; 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.

No. 96-2701.

United States Court of Appeals,

Eighth Circuit.

Submitted March 24, 1997.

Decided Aug. 22, 1997.

Rehearing Denied Oct. 15, 1997.

Edward Allen Moore, pro se.

John J. Treu, Jefferson City, MO, for Appellees.

Before BOWMAN, BRIGHT and WOLLMAN, Circuit Judges.

PER CURIAM.

Appellant Edward Allen Moore, an inmate in Missouri, filed a pro se § 1983 action against several defendants for deliberate indifference to his serious dental needs. The district court dismissed ten defendants pursuant to Fed.R.Civ.P. 4(m) (Time Limit for Service), then granted the remaining defendants summary judgment. 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 contends there is no final order 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 for the Missouri penitentiary system through a contract with the Department of Corrections. On May 4, 1994, Moore submitted an Internal Resolution Request (IRR) seeking medical services and claiming that he "submitted a Medical Services Request a week ago and ... still have not received any medical services." Dist. Ct. Doc. (DCD) # 55, Exh. 4, at 5. On June 7, Moore submitted an Inmate Grievance in which he stated: "I submitted a request for medical services the last week of April 1994 and I still have not received any medical services.... I request health services from a qualified health service professional." Id., Exh. 2, at 3. The parties dispute whether Moore filed the referenced earlier 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 MSR directly to Cornell. DCD # 55, Exh. 4, at 2. On July 15, appellee Karen Cornell, Administrator at Jefferson City Correctional Center, responded to Moore's June 7 Grievance with a letter stating that she did not locate an MSR filed by Moore in April. DCD # 33, Exh. A-8. Cornell then advised Moore to "submit an MSR and discuss it with the nurse." Id.

On July 14, Moore wrote to Steve Long, Assistant Director of the Missouri Department of Corrections, and detailed his efforts to obtain medical treatment. DCD # 44, Exh. M. That letter eventually forwarded to Salke.

On July 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 and 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 being forwarded accordingly, please direct it to Karen Cornell, ... so she may arrange to see you within 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 in which he stated: "I submitted a Medical Service Request (MSR) the last week of April 1994. I have since submitted other 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." DCD # 44, Exh. K. The Department Director Response from Judy Draper states that "[w]hile it is possible that occasionally an MSR is misplaced, I do not find this is a trend or that it occurs frequently." Id.

On August 19, 22 and 25, Moore submitted MSRs complaining of a toothache. DCD # 33, Exhs. A-2, A-3, A-4. Moore asserts he At 7:00 p.m. on August 26, Moore submitted 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 that evening after Moore persuaded a prison guard to summon medical help. The nurse made the following notations under "Nursing 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 for this problem. Id. She observed swelling of the jaw, provided 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 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.

                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 causing him tremendous pain.  Moore provides a copy of that letter.  DCD # 44, Exh.  L. Cornell, however, denies receiving that letter and states she was "not personally aware 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
                

The next morning, Moore filed another MSR complaining of "intense pain," "swelling" and "discharge." Id. at Exh. A-6. There was no response. Moore eventually filed suit on November 4, 1994, and included the names and addresses of all the defendants in his complaint. A dental appointment was then made for him on December 2. On that date, Jackson extracted Moore's # 14 tooth due to irreversible pulpitis.

After Moore filed suit, appellees moved for summary judgment. Moore's request to amend his complaint was denied. On February 27, 1996, United States Magistrate Judge William A. Knox recommended granting appellees Jackson's and Keith's motions for summary judgment, but denying appellees 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.

I.

Moore first challenges the district court's dismissal of numerous defendants pursuant to Federal Rules of Civil Procedure 4(m). ¹ The district court granted Moore permission to proceed in forma pauperis. DCD # 5, at 3. Moore then requested that the court direct the United States Marshal to effect service to the defendants. DCD # 8. The district court ordered the United States Marshal to effect service, but only after Moore completed waiver of service forms. DCD # 9. Moore contends that this constitutes error. We agree.

We review the district court's decision to dismiss an action for untimely service for an abuse of discretion. Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir.1985) (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 for Southern Dist. of Iowa, 490 U.S. 296, 302, 109 S.Ct. 1814, 1818, 104 L.Ed.2d 318 (1989) ("Congress ... knew how to require service when it deemed compulsory service appropriate."). Submitting 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 of Moore's complaint lists all defendants and their addresses. DCD # 1, at 2B. Accordingly, Moore's cause of action against these defendants cannot be dismissed for failure to complete waiver of service forms because an inmate such as Moore, proceeding in forma pauperis, is not required to do so. Waiver of service is the responsibility of the United States Marshal in these settings. ²

[Fed.R.Civ.P. 4(m) ].' " Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994) (internal citation omitted).

II.

Moore next 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 medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976). Moore must demonstrate that the medical deprivation was objectively serious and that prison officials subjectively knew about the deprivation and refused to remedy it. 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.3d 461, 464 (8th Cir.1995).

The district court granted summary judgment for all five remaining defendants, despite the recommendation of the magistrate judge that summary judgment against Salke, Cornell and CMS should be denied. "We review a grant of summary judgment de novo; like the district court, we must construe the evidence in the light most favorable to the non-moving party." Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996). Summary judgment is an extreme remedy, to be granted only if no genuine issue exists as to any material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

Viewing the facts in the light most favorable to Moore, it took from April 1994 ...