                    United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 97-2342
                                   ___________

Shirley Ann Franklin,                   *
                                        *
            Appellant,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Arkansas
Harry A. Zain, M.D.,                    *
                                        *
            Appellee.                   *
                                   ___________

                            Submitted: June 5, 1998

                                 Filed: August 7, 1998
                                  ___________

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


McMILLIAN, Circuit Judge.


       Shirley Ann Franklin appeals from a final order entered in the United States
District Court1 for the Eastern District of Arkansas dismissing her negligence claim


      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
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.


                                            -3-
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



                                            -4-
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




                                           -5-
proceedings in the district court.2 The district court had supplemental jurisdiction under
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.



      2
        There may have been complete diversity of citizenship once the state defendants
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.


                                           -6-
§ 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.




                                          -7-
