                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-1191
                                    ___________

Reginald Smith,                         *
                                       *
              Appellant,               *
                                       *
      v.                               *    Appeal from the United States
                                       *    District Court for the
Missouri Department of Corrections,    *    Eastern District of Missouri.
Gary Kempker, Director; Charles        *
Chastain, III, Doctor; Sharon Roper;   *
Correctional Medical Services;         *    [UNPUBLISHED]
Elizabeth Conley,                       *
                                       *
              Appellees.               *
                                  ___________

                              Submitted: October 19, 2006
                                 Filed: November 6, 2006
                                  ___________

Before SMITH, MAGILL, and BENTON, Circuit Judges.
                            ___________

PER CURIAM.

       Missouri inmate Reginald Smith filed a 42 U.S.C. § 1983 action against
employees of the Missouri Department of Corrections (MDOC) and Correctional
Medical Services (CMS), claiming that defendants denied him adequate medical care
in violation of the Eighth Amendment. Specifically, Smith alleged that Dr. Charles
Chastain, III, exhibited deliberate indifference in diagnosing his diabetes-related foot
problem as gout, which led to the amputation of his foot. Smith alleged that he
“begged” for “standard care,” but that Dr. Chastain would not allow him to see a
specialist due to the cost, and told him, “Wait until you get to your regular institution
for all of these problems,” and, “We are not set up for all of this.” He alleged that the
other defendants did not intervene to provide proper care. He further alleged that
another doctor subsequently stated that Smith should have been given antibiotics. The
district court dismissed the complaint, finding that it was identical to an earlier
complaint Smith had filed in Smith v. Chastain, No. 2:03-CV-1621 (E.D. Mo. Sept.
9, 2004), which was dismissed without prejudice. The court held that the prior
dismissal had res judicata effect.

       We do not believe res judicata is a proper basis for dismissal. While res
judicata does apply to in forma pauperis (IFP) frivolousness determinations for future
IFP frivolousness determinations, see Waller v. Groose, 38 F.3d 1007, 1008 (8th Cir.
1994) (per curiam), here the conditions of res judicata are not met because the first
action was dismissed without prejudice. See Pohlmann v. Bil-Jax, Inc., 176 F.3d
1110, 1112 (8th Cir. 1999) (“generally agree[ing] that dismissal of a case without
prejudice . . . creates no res judicata bar”); see also Rosemann v. Roto-Die, Inc., 276
F.3d 393, 398 (8th Cir. 2002) (count dismissed without prejudice resulted in non-final
disposition that did not create res judicata bar).

        We further find that, liberally construed, Smith’s instant complaint states a
deliberate-indifference claim. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(complaint fails to state claim if it appears beyond doubt plaintiff can prove no facts
entitling him to relief); Atkinson v. Bohn, 91 F.3d 1127, 1128-29 (8th Cir. 1996) (per
curiam) (complaint should not be dismissed for failure to state claim unless it is clear
plaintiff can prove no set of facts supporting his claim which would entitle him to
relief; pro se complaints must be liberally construed); Burke v. N.D. Dep’t of Corr.
& Rehab., 294 F.3d 1043, 1044 (8th Cir. 2002) (per curiam) (medical treatment so
inappropriate as to evidence refusal to provide essential care violates Eighth
Amendment); Moore v. Duffy, 255 F.3d 543, 545 (8th Cir. 2001) (medical treatment

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may so deviate from applicable standard of care as to show deliberate indifference, but
such departure is factual question often requiring expert opinion to resolve); Smith v.
Jenkins, 919 F.2d 90, 92-94 (8th Cir. 1990) (grossly incompetent or inadequate care
can constitute deliberate indifference, as can doctor’s decision to take easier and less
efficacious course of treatment); Chance v. Armstrong, 143 F.3d 698, 703-04 (2d Cir.
1998) (action improperly dismissed for failure to state claim where inmate alleged
treatment recommendations were based on monetary incentives and not medical
views).

       Accordingly, we reverse and remand for further proceedings not inconsistent
with this opinion. We deny as moot Smith’s request for appellate counsel.
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