                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0360n.06
                             Filed: June 23, 2008

                                          No. 07-1521

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


RUDY REYNOSA,                          )
                                       )
      Plaintiff-Appellant,             )                ON APPEAL FROM THE
                                       )                UNITED STATES DISTRICT
v.                                     )                COURT FOR THE WESTERN
                                       )                DISTRICT OF MICHIGAN
KURT SCHULTZ, et al.,                  )
                                       )
      Defendants-Appellees.            )
_______________________________________)

                                           OPINION

Before: KEITH and SUTTON, Circuit Judges; ACKERMAN, Senior District Judge.*

       HAROLD A. ACKERMAN, Senior District Judge. Rudy Reynosa appeals from the

District Court’s dismissal of his claims against Defendants Vaughn Smith and unknown parties

John and Jane Doe. Reynosa brought suit against Defendants after he suffered an overdose of

medication in prison. The District Court dismissed Reynosa’s claims against Smith for failure to

state a claim, and dismissed the claims against unnamed Defendants for failure to effect service.

Reynosa now appeals the District Court’s dismissal. For the reasons stated below, we affirm the

dismissal of claims against Smith, but reverse and remand the dismissal of claims against

unidentified Defendants John and Jane Doe .

       *
        The Honorable Harold A. Ackerman, Senior United States District Judge for the District
of New Jersey, sitting by designation.

                                                1
                                                 I.

       Rudy Reynosa is presently an inmate at the Marquette Branch Prison located in

Marquette, Michigan. On May 25, 2005, while Reynosa was incarcerated at the Florence Crane

Correctional Facility (“Florence”) in Coldwater, Michigan, he took an overdose of pain

medication. At approximately 1 p.m., Defendant Vaughn Smith, the Resident Unit Officer

employed at Florence who was charged with overseeing Reynosa’s section, observed Reynosa

sitting at a table with a dazed look on his face. Smith determined that the quickest way to obtain

health care for Reynosa was to run the approximately 1000 feet to prison health services rather

than opt for a slower alternative of calling the control center and waiting for personnel to contact

health services. Smith ran down the hallway to health services and described Reynosa’s

condition. Smith was instructed by health care personnel to have Reynosa lie down on his bed.

Smith immediately returned to Reynosa’s section and attempted to move Reynosa, without

success. Smith went back to health care services and informed personnel that he was unable to

move Reynosa. Smith was then instructed to bring Reynosa to the clinic, which Smith

accomplished using a wheelchair. This entire sequence of events took 35 minutes. Reynosa was

later transported to a hospital by ambulance and received treatment for his self-inflicted drug

overdose.

       Reynosa brought a civil action, pro se, pursuant to 42 U.S.C. § 1983, naming Smith, Jane

and John Doe healthcare providers, and other named defendants.1 The Complaint was served on


       1
         The other named defendants included the Marquette Branch Supervisor, Kurt Schultz,
and City of Coldwater Prosecuting Attorney Kirk Kashion. Reynosa alleged that Schultz
violated his Eighth Amendment rights by ordering him to operate a jackhammer, which resulted
in Reynosa’s injury, and that Kashion violated his due process rights by failing to respond to his
written complaints concerning the above incidents. The District Court dismissed Reynosa’s

                                                 2
Smith. Reynosa claimed that Smith failed to follow proper policy concerning medical

emergencies, and that policy required Smith to phone or radio control center about the

emergency. Instead, Reynosa alleged, Smith went directly to health services and notified them.

Reynosa requested an award of monetary damages.

       On April 9, 2007, the District Court granted Smith’s motion for summary judgment on all

claims. Adopting the Report and Recommendation (“R&R”) of the Magistrate Judge, the

District Court noted that “the undisputed facts failed to establish either the objective or

subjective components of an Eighth Amendment claim against Smith.” (JA, Ex. 11 at 1.)

       Concerning Reynosa’s claims against unknown Defendants John and Jane Doe, Reynosa

alleged that they failed to provide him with adequate medical care. However, after some effort,

Reynosa failed to identify such defendants within the statutorily-prescribed 120 days.

Accordingly, the District Court dismissed, without prejudice, the claims against unknown

Defendants.

       Reynosa now appeals the District Court’s dismissal. Smith, represented by the State of

Michigan, relies on his briefing papers below, and Reynosa proceeds pro se.



                                                II.

       This Court reviews de novo a district court’s grant of summary judgment, and utilizes the

same test employed by the district court. Jackson v. Leighton, 168 F.3d 903, 909 (6th Cir. 1999);

see also Lucas v. Monroe County, 203 F.3d 964, 971 (6th Cir. 2000). A party is entitled to


claims against Schultz and Kashion for failure to state claims upon which relief could be granted.
Reynosa does not challenge, and our Opinion does not address, the District Court’s dismissal of
claims against Defendants Schultz and Kashion.

                                                  3
summary judgment when the “record taken as a whole could not lead a rational trier of fact to

find for the non-moving party” because there is no genuine issue of material fact. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 599 (1986) (internal citation omitted).

The moving party has the burden of showing an absence of evidence to support the non-moving

party’s case. Wright v. Murray Guard, Inc., 455 F.3d 702, 706 (6th Cir. 2006). Once the moving

party has satisfied its burden of production, the non-moving party must come forward with

significant probative evidence showing that a genuine issue exists for trial. Id. When addressing

a party’s pro se papers, the Court must read them with less stringency, see Haines v. Kerner, 404

U.S. 519, 520 (1972), and accept the pro se party’s allegations as true, unless they are clearly

irrational or wholly incredible, Denton v. Hernandez, 504 U.S. 25, 33 (1992).



                                                III.

       To state a claim under 42 U.S.C. § 1983, Reynosa must allege the violation of a right

secured by the Constitution or laws of the United States and must show that the deprivation was

committed by a person acting under color of state law. Parratt v. Taylor, 451 U.S. 527, 535

(1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327 (1986). In his

Complaint, Reynosa sought to fulfill the first requirement by alleging a violation of his rights

secured by the Eighth Amendment. (JA, Ex. 1 at 1.) This allegation contradicts his assertion in

his briefing where he writes: “It is clear and unambiguous that [I] asserted only State Law Tort

claims against Smith. There is absolutely nothing in [my] complaint to suggest otherwise.”




                                                 4
(Reynosa Br. at 7.)2 If we were to read Reynosa’s contention as an abandonment of his Eighth

Amendment claim, see Kocsis v. Multi-Care Mgmt., 97 F.3d 876, 881 (6th Cir. 1996), we likely

would decline to exercise federal jurisdiction over Reynosa’s state law claims, see 28 U.S.C. §

1367(c)(3) (describing a court’s discretion to dismiss supplemental state law claims). However,

reading Reynosa’s pro se papers with latitude, we will address Reynosa’s Eighth Amendment

claim as he originally, though opaquely, alleged on the face of his Complaint.

       The Eighth Amendment states: “Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII. This bar is

made applicable to the States by the Fourteenth Amendment. The principles underlying the

Eighth Amendment include “the government’s obligation to provide medical care for those

whom it is punishing by incarceration.” Estelle v. Gamble, 429 U.S. 97, 102 (1976). When

prison officials’ inattention to a prisoner’s serious medical needs rises to deliberate indifference,

such indifference constitutes the “unnecessary and wanton infliction of pain” proscribed by the

Eighth Amendment. Id. at 104. In other words, “the Eighth Amendment does not apply to every

deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only that narrow

class of deprivations involving ‘serious’ injury inflicted by prison officials acting with a culpable

state of mind.” Hudson v. McMillian, 503 U.S. 1, 20 (1992) (citing Wilson v. Seiter, 501 U.S.

294, 298 (1991) (emphasis in original)). Indeed, “a prison official cannot be found liable . . .

unless the official knows of and disregards an excessive risk to inmate health or safety[.]”

Farmer v. Brennan, 511 U.S. 825, 837 (1994). Thus, a viable Eighth Amendment claim has an



       2
         Reynosa styles his primary allegation against Smith as one arising under principles of
state-law negligence. (Reynosa Br. at 8.)

                                                  5
objective component requiring a showing of a serious risk of injury, and a subjective component

requiring a showing of deliberate indifference. See id.

       Here, there is no genuine issue regarding whether Reynosa faced a sufficiently serious

medical condition. “A sufficiently serious medical need is predicated on the inmate

demonstrating that he or she is incarcerated under conditions imposing a substantial risk of

serious harm.” Miller v. Calhoun County, 408 F.3d 803, 812 (6th Cir. 2005) (internal citation

and quotation marks omitted). To support this first prong, an inmate “must place verifying

medical evidence in the record to establish the detrimental effect of the delay in medical

treatment to succeed.” Napier v. Madison County, Ky., 238 F.3d 739, 742 (6th Cir. 2001). As

the District Court found, Reynosa “did not submit any medical records in response to defendant’s

motion for summary judgment. There are no medical records showing that [Reynosa] suffered

any adverse consequences as a result [of] any ‘delay’ in medical treatment attributable to the

defendant’s actions.” (JA, Ex. 9 at 6.) We agree.

       Furthermore, there is no genuine issue concerning whether Smith had the requisite

culpable intent. A plaintiff can show deliberate indifference by establishing, for example, that

the defendants intentionally denied or delayed access to medical care, see Estelle, 429 U.S. at

104-05, or that the defendants refused to provide prescribed medication, see Byrd v. Wilson, 701

F.2d 592, 595 (6th Cir. 1983). Reynosa presented no evidence supporting either inference.

Rather, as the Magistrate Judge accurately observed, “Defendant’s actions resulted in plaintiff

receiving prompt medical attention. I find no reasonable trier of fact could find in plaintiff’s

favor on the subjective component of his Eighth Amendment claim against defendant.” (JA, Ex.

9 at 7.) Simply put, Reynosa presents no dispute upon which a reasonable trier of fact could find


                                                 6
an Eighth Amendment violation. Therefore, his § 1983 claim fails as a matter of law.3



                                                IV.

       Reynosa requested that the District Court exercise supplemental jurisdiction over his state

law claims, which are based largely on gross negligence. However, “[s]upplemental jurisdiction

is a doctrine of discretion, not of . . . right.” Habich v. City of Dearborn, 331 F.3d 524, 535 (6th

Cir. 2003). We review a district court’s decision to exercise pendent jurisdiction for abuse of

discretion, Landefeld v. Marion Gen. Hosp., Inc., 994 F.2d 1178, 1182 (6th Cir.1993), meaning

that this Court will not reverse unless the court below “relies on clearly erroneous findings of

fact, improperly applies the law, or uses an erroneous legal standard,” United States v. Chambers,

441 F.3d 438, 446 (6th Cir. 2006) (internal citation omitted). Ordinarily, where all federal claims

have been dismissed, federal courts should decline to exercise supplemental jurisdiction over

state law claims. 28 U.S.C. § 1367(c)(3); see United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 726 (1966) (“Certainly, if the federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”). Here, the

District Court committed no abuse of discretion to decline supplemental jurisdiction over

Reynosa’s state law claims sounding in gross negligence.


       3
          The District Court found, alternatively, that Smith was “entitled [to] judgment in his
favor as a matter of law on the basis of qualified immunity.” (JA, Ex. 9 at 7.) In Saucier v. Katz,
the Supreme Court wrote: “If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified immunity.”
533 U.S. 194, 201 (2001); see also Marvin v. City of Taylor, 509 F.3d 234, 244 (6th Cir. 2007)
(“If there is no constitutional violation, then the plaintiff’s § 1983 claim fails as a matter of law
and the defendant is therefore entitled to summary judgment and does not need qualified
immunity.”). Because Reynosa fails to show a constitutional violation, we need not further
address Smith’s qualified immunity claim.

                                                 7
                                                  V.

        Reynosa challenges the District Court’s dismissal of his claims against unnamed

Defendants John and Jane Doe, essentially claiming that the District Court improperly applied

the law governing dismissal of claims for defective service. In its Order adopting the R&R of the

Magistrate Judge, the District Court dismissed the claims against John and Jane Doe without

prejudice “for failure to make service.” (JA, Ex. 11 at 2.) The District Court noted that Reynosa

“filed his complaint seven months ago, and has yet to identify the ‘unknown’ Defendants.” (JA,

Ex. 11 at 2.)

       This Court reviews a district court order dismissing a complaint for failure to effect

timely service of process for an abuse of discretion. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.

1996); Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994). An abuse of discretion exists

when the reviewing court is firmly convinced that a mistake has been made, such as when a court

makes clearly erroneous findings of act or improperly applies the law. Romstadt v. Allstate Ins.

Co., 59 F.3d 608, 615 (6th Cir. 1995).

       Federal Rule of Civil Procedure 4(m) provides:

                If a defendant is not served within 120 days after the complaint is
                filed, the court – on motion or on its own after notice to the plaintiff
                – must dismiss the action without prejudice against that defendant or
                order that service be made within a specified time. But if the plaintiff
                shows good cause for the failure, the court must extend the time for
                service for an appropriate period.

(Emphases added). It is undisputed that Reynosa failed to identify the proper defendants within

120 days. It is also undisputed that the District Court did not give notice to Reynosa prior to

dismissing his claims against John and Jane Doe, and thus, Reynosa was not given a formal



                                                   8
opportunity to show good cause for his defective service. The issue then before us is whether the

District Court’s failure to give notice suggests that we should remand the case.

       According to the State, in its amicus letter brief filed at this Court’s request,4 Reynosa

could have responded to the District Court’s dismissal by offering good cause once the judgment

was entered by filing a motion to reconsider. Some circuits have held that when a plaintiff has an

opportunity to request reconsideration, the plaintiff is not prejudiced by the district court’s failure

to provide advance notice of its intention to dismiss for defective service. See Ruiz Varela v.

Sanchez Velez, 814 F.2d 821, 823 (1st Cir. 1987) (order of dismissal by district court gives

plaintiff notice and an opportunity to respond where plaintiff had an opportunity to file and did

file a motion for reconsideration following dismissal for defective service); Whale v. United

States, 792 F.2d 951, 952-53 (9th Cir. 1986) (finding no prejudice to plaintiff by lack of notice

when plaintiff had an adequate opportunity to demonstrate good cause in Rule 60(b) motion

following dismissal). In both Ruiz and Whale, the courts resolved that the lack of notice prior to

dismissal did not compel reversal because the lack of notice did not prejudice the plaintiff. Ruiz,

814 F.2d at 823; Whale, 792 F.2d at 952.

       To date, it appears that this Court has not yet addressed the precise circumstance before us,

where the plaintiff did not file a motion to reconsider, and the dismissed claims were not decided

on the merits. But cf. Marzuola v. Cont’l Tire N. Am., 243 F. App’x 956, 960 (6th Cir. 2007)

(unpublished) (finding no prejudice from lack of notice because “all of [the plaintiff’s] substantive


       4
         In our letter request dated May 21, 2008, we asked that the State “file a letter brief
addressing only the third issue that Mr. Reynosa raises in his brief – whether the court erred in
dismissing his complaint against unnamed defendants for lack of service under Rule 4(m).” In
its response, dated May 28, 2008, the Government remarked that it only represents Defendant
Smith, and thus, filed its “letter in the nature of an amicus submission.” (State Letter Br.)

                                                  9
claims were properly dismissed by the district court” on the merits, and thus, district court’s

dismissal for defective service was proper). However, despite the findings of our sister circuits in

Ruiz and Whale, we find the more prudent path resembles that taken by the United States Court of

Appeals for the District of Columbia.

       In Smith-Bey v. Cripe, the D.C. Circuit held that an inmate proceeding pro se was not

given proper notice prior to the district court’s dismissal without prejudice of his claims for lack

of service. 852 F.2d 592, 593 (D.C. Cir. 1988). There, the court reasoned that the inmate “was

neither actually nor constructively on notice as to the impending sua sponte dismissal.” Id.

Moreover, the court distinguished Ruiz and Whale, observing that the inmate was prejudiced by

the dismissal because he “did not move for reconsideration and he did not have an opportunity to

show good cause[.]” Id. “These factors,” noted the court, “combined with his pro se status, lead

us to conclude that the district court’s dismissal . . . was improper.” Id.; see also Brown v.

District of Columbia, 514 F.3d 1279, 1286-87 (D.C. Cir. 2008).

       Smith-Bey’s reasoning is persuasive, and its facts nearly identical to those before us here.

Reynosa, a pro se inmate, was given neither actual nor constructive notice of the District Court’s

dismissal, until, of course, the District Court actually dismissed the claims against the unknown

Defendants. Moreover, Reynosa was prejudiced by the dismissal because it is, at best, unclear

whether Reynosa could have shown good cause for defective service. Reynosa made efforts to

learn the identities of the unknown Defendants, including serving interrogatories on Smith to

acquire such information. (JA at Ex. 5.) However, Smith’s response was never obtained because

the Magistrate Judge stayed discovery pending the dismissal of Reynosa’s claims against Smith.

(JA at Ex. 9.) Reynosa argues that “other than serving Smith with discovery requests he knows no


                                                 10
other way to identify the unknown parties.” (Reynosa’s Br. at 11.) Given the efforts already

undertaken by Reynosa, and the difficulties presented by his prisoner pro se status, it is at least

debatable whether, if given the opportunity, he could show good cause. Thus, like the Smith-Bey

inmate, Reynosa was prejudiced because he did not move for reconsideration, and was not given

notice and an opportunity to show good cause.5

       In Ruiz, the First Circuit “caution[ed] that the far better course is for the district court to

provide notice of impending dismissal before actually ordering dismissal sua sponte – which is

undoubtedly the procedure envisioned by [the Federal Rules.]” 814 F.2d at 823. We agree. In

light of Reynosa’s pro se status, and the notice requirement mandated by Rule 4(m), the District

Court abused its discretion by not giving proper notice to Reynosa prior to dismissing his claims.6

Cf. Ching v. Lewis, 996 F.2d 1223, 1993 WL 230173, at *3 (9th Cir. 1993) (table) (“Dismissal of

a pro se complaint without an opportunity to show cause or explain why dismissal is inappropriate



       5
          The State also objects that “Reynosa was not prejudiced because the unserved
defendants were dismissed without prejudice.” (State Letter Br. at 3.) While the State is correct
that the District Court dismissed Reynosa’s claims without prejudice, its dismissal without notice
prejudiced Reynosa in a different sense. In Smith-Bey, the district court under review had also
dismissed “without prejudice,” yet the D.C. Circuit found that the pro se inmate was nevertheless
“prejudiced” because he did not ultimately “move for reconsideration” and “have any opportunity
to show good cause.” 852 F.2d at 593. We perceive a similar distinction, as discussed above.
Rule 4(m) requires, when a district court dismisses an action for failure of service, that it do so
“without prejudice.” Fed. R. Civ. P. 4(m). Yet, dismissal without prejudice does not excuse a
district court from giving notice to the plaintiff prior to dismissing the action merely because the
plaintiff may choose to re-file suit. In other words, it would be nonsensical to permit a court to
circumvent the strictures of Rule 4(m) by dismissing an action without prejudice, which is
mandated anyhow by Rule 4(m), and thus negate the core substance of that same rule, namely
that a court give notice to the plaintiff prior to dismissal for untimely service.
       6
          The Advisory Committee Notes to Rule 4(m) also state that “[t]he district court should .
. . take care to protect pro se plaintiffs from consequences of confusion or delay attending the
resolution of an in forma pauperis petition.” Fed. R. Civ. P. 4(m) advisory committee’s note.

                                                  11
has been held to be an abuse of discretion.”).

       Our conclusion is further compelled by the rationale underlying the most recent enactment

of Rule 4(m). The Courts of Appeals in Ruiz, Whale, and Smith-Bey all based their findings on

the prior formulation of Rule 4(m), then cast as Rule 4(j), which was amended effective

December 1, 1993, Byrd, 94 F.3d at 219 n.2. In this prior construction, the rule was vague on the

requirement of prior notice:

               If a service of the summons and complaint is not made upon a
               defendant within 120 days after the filing of the complaint and the
               party on whose behalf such service was required cannot show good
               cause why such service was not made within that period, the action
               shall be dismissed upon the court’s own initiative with notice to such
               party or upon motion.

Fed. R. Civ. P. 4(j) (repealed). “Unlike former Rule 4(j), the current Rule 4(m) states explicitly

that dismissal shall be ordered after notice to the plaintiff.”7 Liu v. Oriental Buffet, 134 F. App’x

544, 547 (3d Cir. 2005) (unpublished) (emphasis in original). Further, “[t]he fact that the

Plaintiff[] had the option to move for reconsideration does not negate Rule 4(m)’s requirement

that a district court provide prior notice.” Id. (emphasis in original).

        The State asserts that “if this Court should determine that the notice to Reynosa was

insufficient, then the appropriate course of action would be to remand this case to the district

court to allow Mr. Reynosa to bring forward any information he may have to show good cause.”

(State Letter Br. at 3.) We concur. While we offer no opinion on the merits of whether Reynosa

may succeed in demonstrating good cause, we remand to the District Court to give Reynosa


       7
          Rule 4(m) provides: “If a defendant is not served within 120 days after the complaint is
filed, the court – on motion or on its own after notice to the plaintiff – must dismiss the action
without prejudice against that defendant or order that service be made within a specified time.”
Fed. R. Civ. P. 4(m) (emphasis added).

                                                 12
notice of dismissal and an opportunity to show good cause for his failure to effect service on

unknown Defendants.



                                                VI.

        For the foregoing reasons, we hereby AFFIRM the District Court’s dismissal of

Reynosa’s claims against Defendant Smith. However, we REVERSE and REMAND the

District Court’s dismissal of claims against unknown Defendants John and Jane Doe, with

directions to provide Reynosa with the proper notice and an opportunity to show good cause for

his failure to identify and serve such Defendants.




                                                13
