                      United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
                               ___________

                               No. 96-2701
                               ___________

Edward Allen Moore,                 *
                                    *
           Appellant,               *
                                    *
      v.                            * Appeal from the United States
                                    * District Court for the Western
Ernest-Jackson, D.D.S.; James       * District of Missouri.
Keith, M.D.; Randee Kaiser;         *
Karen Cornell; Ralf Salke;          *    [PUBLISHED]
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.               *
                               ___________

                         Submitted: March 24, 1997
                             Filed:    August 22, 1997
                               ___________

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.




                                    -2-
      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 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.




                                    -3-
      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.

      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.




                                   -4-
                                          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. 1988) (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 (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
[Fed.R.Civ.P.




     1
      Rule 4(m) states:

            Time Limit for Service. If service of the summons and complaint
     is not made upon a defendant within 120 days after the filing of the
     complaint, the court, upon motion or on its own initiative after notice to
     the plaintiff, shall dismiss the action without prejudice as to that defendant
     or direct that service be effected within a specified time; provided that if
     the plaintiff shows good cause for the failure, the court shall extend the
     time for service for an appropriate period.

                                          -5-
4(m)].'" Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994) (internal
citation omitted).

      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

                                            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 (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.




      2
        Of course, a district court does not have to serve defendants if "it is determined
the lawsuit is baseless and that the plaintiff cannot make any rational argument in law
or fact entitling him to relief." Williams v. White, 897 F.2d 942, 944 (8th Cir. 1990).


                                           -6-
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 (1986).

      Viewing the facts in the light most favorable to Moore, it took from
April 1994 until December 1994 for Moore to receive adequate treatment for
a toothache. The tooth became infected and ultimately required extraction.
Something appears wrong with the dental care system. The question before
us is whether Moore has a civil rights claim that survives summary
judgment. We think it does.

                                   A.

      We affirm the district court's grant of summary judgment for
appellees Salke and Keith. A careful review of the record reveals that
there is no evidence they knew about Moore's serious medical condition,
"refused to verify underlying facts that [they] strongly suspected to be
true, or declined to confirm inferences of risk that [they] strongly
suspected to exist . . . ." Farmer v. Brennan, 511 U.S. 825, 843 n.8
(1994).
                                   B.

      We reverse the district court's grant of summary judgment for
appellee Jackson.    Jackson, a dentist, asserts that he was unaware of
Moore's request for medical care until Moore filed suit in November, 1994.
The district court asserted that Moore "provided no evidence to show that
any of the defendants knew about his need for dental care prior to August
25, 1994, when he sent a letter to defendant Cornell." DCD #61, at 2. We
disagree.

      It is reasonable to infer that Moore filed an MSR in April
complaining of tooth pain when we view the facts in the light most
favorable to Moore. This is supported by the fact that his tooth was
infected and ultimately required extraction. It is a




                                   -7-
reasonable inference from the record, then, that Moore was in pain in late
April as a result of his tooth. In addition, we have more than Moore's
mere assertion that he filed the MSR and that it was lost. Appellees
concede MSRs may be lost or misplaced.        DCD #3, Attachment (Inmate
Grievance, Response).    Furthermore, Moore filed grievances and an IRR
complaining that his April MSR was lost. Assuming Moore filed the April
MSR, it is a reasonable inference from the record that Jackson knew about
Moore's condition.

      Furthermore, under the "Nursing Assessment" section of Moore's August
19 MSR (received by the dental department on August 25) there is a
handwritten note, "#14 TE", followed by a number 1 with a circle around it.
DCD #33, Exh. A-2.     While we do not know what the number and circle
signify, it is clear from reviewing all the medical records that "#14"
refers to the tooth that was eventually extracted, and that "TE" may mean
"Tooth Extraction."     See, e.g., DCD #33, Exh. A-7, at 2 (containing
"Services Rendered" form regarding extraction of Moore's tooth); DCD #33,
Exh. A-7, at 3 (containing "Surgical/Medical Procedure Authorization"
form). Moore asserts that only dentists may authorize tooth extractions.
While there may be other explanations for this notation, viewing the
evidence in the light most favorable to Moore requires us to conclude there
is a material issue of fact regarding whether Jackson knew about Moore's
dental problems before Moore filed suit, but failed to ensure that Moore
was treated until December.3




       3
        We also disagree with the district court's grant of summary judgment because
Moore failed to present verifying medical evidence establishing the detrimental effect
of the delay in his dental treatment. Crowley, 109 F.3d at 502. On August 26, Moore's
"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 (emphasis added). According to this
diagnosis, it is possible to save a tooth that has infection in the pulp. Viewing the
evidence in the light most favorable to Moore, the three month delay in treatment
ensured the tooth would require extraction. Thus, because immediate dental care might
have saved Moore's tooth it is up to the jury, not the trial court, to determine if the three
month delay exacerbated Moore's condition.

                                            -8-
                                         D.

      We also reverse the grant of summary judgment for appellee Cornell.
The district court correctly determined, for purposes of reviewing the
motion for summary judgment, that Moore sent a letter to Cornell on August
25 detailing the pain resulting from his tooth.4       The district court
granted summary judgment for Cornell, however, on the basis that "[t]he
next day, a nurse examined plaintiff, . . . Thus, defendant Cornell was
justified in believing plaintiff's problem had been remedied." DCD #61,
at 2. This conclusion, however, contradicts Cornell's affidavit in which
she denies receiving Moore's August 25 letter, and states that she was "not
personally aware of Mr. Moore's dental problems in the summer or fall of
1994." DCD #33, Exh. B, at 2. In short, Cornell could not be "justified
in believing plaintiff's problem had been remedied" if she denies any
knowledge that a dental problem existed. We agree with the magistrate
judge who noted that Moore "provided sufficient evidence to show that
defendant Cornell knew about his need for dental care in August 1994, that
she had a duty to ensure he received treatment and that she failed to take
action. Whether defendant Cornell actually received plaintiff's letter
requesting dental care in August 1994, is a question of fact . . . ." DCD
#54, at 3-4.

                                         E.

      We also reverse the grant of CMS's motion for summary judgment. CMS
argues, and the district court held, that Moore failed to demonstrate a CMS
policy or custom for destroying or ignoring MSRs that led to a
constitutional deprivation. We




      4
       Moore wrote in part: "My most serious problem is an infected tooth. . . . I am
now experiencing pain on the entire left side (the side with the infected tooth) of my
face. My left eye even hurts. I am having a discharge from my left nostril that smells
like dead fish. . . . The situation has become urgent." DCD # 44, Exh. L.

                                         -9-
agree with the magistrate judge, however, who noted that Moore presents
"sufficient evidence from which a jury could find that . . . MSRs were
destroyed or mishandled and that as a result, serious medical needs were
unaddressed; . . . ." DCD #54, at 4.

      Appellees acknowledge that it is possible for MSRs to be misplaced.
DCD #44, Exh. K. Indeed, appellees concede that "[i]t is . . . difficult
with the large number of dental MSRs to determine the real level of need,
and avoid missing legitimate problems." DCD #33, Exh. A, at 3. Viewing
the evidence in the light most favorable to Moore, he submitted an MSR in
April. That MSR was misplaced or destroyed, consequently, he received no
response to it. Further support for Moore's claim that CMS's custom or
policies resulted in the denial of medical care is the lack of response to
his August 27 MSR.

      In fact, Moore only received dental care for his infected tooth after
he complained to a prison guard and filed this lawsuit. It is appropriate
for a jury, not the courts, to determine whether CMS had a custom or
procedure of misplacing, ignoring or destroying MSRs with resulting harm
to the inmates.

      The district court determined, alternatively, that even if "MSRs are
destroyed pursuant to an institutional custom and [Moore's] constitutional
injuries resulted from that custom . . . that [Moore's] claims still fail."
DCD #61, at 2. The district court supported this statement by observing
that Moore failed to follow Salke's advice to submit his MSR directly to
Cornell.    As an initial matter, we disagree with the district court's
conclusion that there is no issue for a jury when an inmate complains to
prison officials of a medical need, the officials intentionally destroy
such communications without acting on them pursuant to an institutional
custom, and the inmate's tooth becomes infected, dies and is finally
extracted more than seven months after the initial complaint.




                                   -10-
      Furthermore, a reasonable reading of Salke's letter to Moore suggests
that Moore followed Salke's advice rather than ignored it. Salke informed
Moore that if he is "in need of medical services and [his] MSR is not
being forwarded accordingly, please direct it to Karen Cornell, . . . ."
DCD #44, Exh. J, at 2. This statement appears to refer specifically to the
April MSR, which was the basis of Moore's IRR reviewed by Salke. Moore
produced a copy of a letter to Cornell regarding that MSR and was seen by
a nurse.    He filed a new MSR on the following day seeking treatment.
Although he did not file this MSR with Cornell, a reasonable inference from
the record is that Moore believed he should file his new MSR through normal
channels because Salke's letter advising Moore to contact Cornell concerned
only his April MSR. Accordingly, we reverse the grant of summary judgment
in favor of CMS.5


      5
        Although we cannot affirm summary judgment for Jackson, Cornell or CMS on
the basis provided by the district court, we review the record to determine if summary
judgment can be affirmed on other grounds. One reason appellees provide for not
treating Moore before December 2 is because "[t]he fact that the dental unit did not
receive any further MSRs [after Moore was seen by a nurse on August 26] complaining
of severe pain in the months of September, October and November . . . gave rise to the
presumption of the dental assistant that Mr. Moore's tooth no longer had detectable
nerve enervation, and was thus not a medical emergency." DCD # 33, Exh. A, at 3-4.
This statement is misleading. Moore filed a MSR complaining of severe pain the day
after the nurse saw him. Furthermore, appellees' representations, when examined in
context of other statements, place Moore in a disturbing Catch-22 if he wishes to
receive dental treatment. See Joseph Heller, Catch-22 (Simon and Schuster 1961)
(1955). On the one hand, appellees chastise Moore's numerous attempts in April-
August to bring attention to his allegedly misplaced MSR as impeding dental treatment:

             The Jefferson City Correctional Center has an inmate population
      of over 2,000. . . . Multiple submissions of the same MSR complaint will
      not accomplish obtaining an appointment earlier. . . . The repeated
      submission of MSRs and grievances only impedes service in that each
      MSR and grievance takes away valuable service time to process
      unnecessary paperwork.

Appellees' Brief at 5. On the other hand, Moore's decision to file only one MSR after
he was examined on August 26 "gave rise to the presumption . . . that Mr. Moore's
tooth . . . was . . . not a medical emergency." DCD #33, Exh. A, at 3-4. This

                                        -11-
                                   III.

      Our review of the district court order confirms that the district
court did not address Moore's medical malpractice claim against Dr. Jackson
or his third party beneficiary contract claim against CMS. Accordingly,
these issues remain before the district court.

                                   IV.

      Moore also asserts that the district court erred by denying his
motion to amend his complaint. The district court's denial was without
prejudice. "[L]eave [to amend a complaint] shall be freely given when
justice so requires."    Fed.R.Civ.P. 15(a).    "Leave to amend should be
granted absent a good reason for the denial, such as undue delay, bad
faith, undue prejudice to the nonmoving party, or futility." Fuller v.
Secretary of Defense of the United States, 30 F.3d 86, 88 (9th Cir. 1994).
We review the district court's decision for an abuse of discretion. Id.

      Moore sought to amend his complaint by adding three defendants
shortly after appellees moved for summary judgment. The magistrate judge
denied that request "without prejudice to reconsideration if his claims
survive . . . summary judgment." DCD #43. The denial did not constitute
an abuse of discretion.

                                    V.




contradiction speaks for itself.

                                   -12-
      Finally, Moore argues that the district court erred by denying his
motion for discovery sanctions. We review the district court's denial to
compel discovery for a gross abuse of discretion. Kinkead v. Southwestern
Bell Telephone Co., 49 F.3d 454, 457 (8th Cir. 1995). After a careful
review of the record, we conclude that the district court did not abuse its
discretion.

                                CONCLUSION

      Accordingly, we affirm the district court's denial of Moore's motion
to file an amended complaint and his motion for sanctions. We also affirm
the grant of summary judgment for Salke and Keith. We reverse the district
court's grant of summary judgment for Jackson, Cornell and CMS, as well as
the dismissal of defendants pursuant to Fed.R.Civ.P. 4(m). Moore's medical
malpractice claim and third party contract claim remain before the district
court.

     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -13-
