                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 29, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT



 THOMAS N. WILLIAMS,

               Plaintiff - Appellant,                   No. 12-6002
          v.                                         (W.D. Oklahoma)
 JUSTIN JONES, Director DOC; DON               (D.C. No. 5:11-CV-00225-C)
 SUTTMILLER, Chief Medical
 Administrator; GENESE MCCOY,
 Medical Services Administrator;
 CARRIE GARZA, Health Services
 Administrator; DONNA CARTER,
 Medical Administrative Asst; JEFF
 TROUTT, Doctor,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Thomas N. Williams, an Oklahoma state prisoner, appeals the dismissal of

his claims under 42 U.S.C. § 1983 that certain Oklahoma Department of



      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Corrections (DOC) officials were deliberately indifferent to his serious medical

needs in violation of the Eighth Amendment. We have jurisdiction under

28 U.S.C. § 1291 and affirm.

I.    BACKGROUND

      On March 2, 2011, Mr. Williams filed his complaint in the United States

District Court for the Western District of Oklahoma against six defendants in

their individual and official capacities: Justin Jones, Director of the DOC;

Dr. Don Suttmiller, DOC Chief Medical Administrator; Genese McCoy, DOC

Medical Services Administrator; Carrie Garza, Correctional Health Services

Administrator for the Oklahoma State Reformatory (OSR) in Granite, Oklahoma,

where Mr. Williams was confined; Donna Carter, Medical Administrator Assistant

at OSR; and Dr. Jeffrey Troutt, a physician employed by DOC. He argued that

the defendants were deliberately indifferent to the deterioration of his urologic

condition and caused unreasonable delays in scheduling needed appointments

with urologists and surgeons at Oklahoma University Medical Center (OUMC).

       On April 1 Mr. Williams requested that the court clerk issue a summons

for each defendant; they were issued on April 4 and delivered to the U.S.

Marshal’s Service (USMS). On July 22 he filed a motion seeking an order to

direct the USMS “to find Defendant Carrie Garza so she can be served the

summons” because he did not have her current work or home address; the motion

asserted that her address could be obtained from Defendant Jones. Motion for

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Discovery to Serve Summons at 1, Williams v. Jones, No. CIV-11-225-C (W.D.

Okla. July 22, 2011). But a few days later, on July 25, the USMS returned

Ms. Garza’s summons, stating: “Garza is no longer employed by OSR Granite.

Personnel office did not have an address or new place of employment for Garza.”

USMS Process Receipt and Return, Williams, CIV-11-225-C (W.D. Okla. July 25,

2011). On August 2 the magistrate judge denied Mr. Williams’s motion,

explaining that the return reflected that the USMS had made a reasonable effort to

obtain an address and that it was Mr. Williams’s responsibility to provide an

accurate address.

      Almost two months later, on September 28, the magistrate judge observed

that Mr. Williams still had not served Ms. Garza and directed him to show cause

why his claim against her should not be dismissed without prejudice for his

failure to serve her within the 120-day time period prescribed by Fed. R. Civ. P.

4(m). In response, Mr. Williams filed on October 14 a request for issuance of a

summons to a new work address for Ms. Garza at Elkview General Hospital in

Hobart, Oklahoma. The summons was issued by the court clerk on October 17.

In addition, the magistrate judge construed Mr. Williams’s October 14 request as

a request for extension of time, and granted him until December 16 to effect

service of process on Ms. Garza or face dismissal of the claim against her. On

December 7, however, the USMS filed another return, which said: “Subject

Garza works as a ‘floater’ as a nurse for several different organizations. Was not

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at hospital and has moved from Hobart.” USMS Process Receipt and Return,

Williams, CIV-11-225-C (W.D. Okla. Dec. 7, 2011). On December 20 the

magistrate judge recommended that the claim against Ms. Garza be dismissed

without prejudice, stating that the USMS had made an adequate effort to effect

service of process, that the extension of time had expired, that Mr. Williams had

not requested additional time or shown good cause for not effecting service, and

that an extension of time was not warranted under the circumstances. The district

court adopted the recommendation of the magistrate judge.

      All other defendants moved to dismiss or, alternatively, for summary

judgment. The district court, adopting the recommendation of the magistrate

judge, ruled (1) that the Eleventh Amendment barred the official-capacity claims;

(2) that Mr. Jones, Dr. Suttmiller, and Ms. Carter would be dismissed as

defendants because the complaint contained no allegations against them; and (3)

that the only allegation against Ms. McCoy—that she had denied relief when he

filed a grievance—failed to establish a cause of action because she was not

alleged to be responsible for medical treatment or scheduling decisions, see

Gallagher v. Shelton, 587 F.3d 1063, 1069 (10th Cir. 2009) (alleged denial of

grievance does not establish the required “affirmative link” between defendant

and a constitutional violation (internal quotation marks omitted)). It also granted

Dr. Troutt summary judgment because the evidence did not show sufficient

involvement to support a claim of deliberate indifference. The court stated:

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      Plaintiff alleges only one instance in which Defendant Troutt treated
      him for his complaint of pain and swelling in his kidneys sometime
      after October 24, 2009, and only one instance in which Plaintiff
      submitted a Request to Staff to Defendant Troutt on January 2, 2007,
      concerning the failure of unidentified “OSR medical staff” to
      schedule Plaintiff for a return appointment with the OUMC urologist
      within 30 days, as ordered by the urologist on September 15, 2006.
      Plaintiff admits, however, that Defendant Garza “apologized [and]
      rescheduled the appointment with” OUMC and he was transported to
      OUMC for his appointment with a urologist on January 16, 2007.
      Because Plaintiff does not allege that Defendant Troutt was
      responsible for scheduling appointments with medi[c]al specialists
      outside of the prison or that Defendant Troutt denied medical
      treatment to Plaintiff or acted to delay medical treatment of Plaintiff
      for his urinary and kidney problems, Defendant Troutt’s Motion for
      Summary Judgment with respect to Plaintiff’s Eighth Amendment
      claims against him should be granted.

R., Vol. 1 at 212–13.

      On appeal Mr. Williams argues that the claims dismissed with prejudice

should have survived because the defendants knew of and disregarded the

substantial risk of serious harm to his health; but he still fails to point to specifics

of their individual involvement. He also contends that the district court

improperly dismissed his claim against Ms. Garza because it was the USMS’s

failure to do its duty that caused her not to be served.

II.   DISCUSSION

      We review de novo the district court’s grant of the motions to dismiss, see

Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011), and

its grant of the motion for summary judgment, see Roberts v. Barreras, 484 F.3d

1236, 1239 (10th Cir. 2007). We affirm the judgment as to Mr. Jones,

                                           -5-
Dr. Suttmiller, Ms. Carter, Ms. McCoy, and Dr. Troutt for essentially the reasons

stated by the district court.

       “We review under an abuse-of-discretion standard the decision to dismiss a

defendant for failure of proper service.” Constien v. United States, 628 F.3d

1207, 1213 (10th Cir. 2010) (internal quotation marks omitted). We affirm the

dismissal without prejudice of the claims against Ms. Garza because it was within

the district court’s discretion to hold that the circumstances did not justify an

extension of time. See Espinoza v. United States, 52 F.3d 838, 841 (10th Cir.

1995) (“If the plaintiff fails to show good cause [for not effecting service], the

district court must still consider whether a permissive extension of time may be

warranted. At that point the district court may in its discretion either dismiss the

case without prejudice or extend the time for service.”).

III.   CONCLUSION

       We AFFIRM the judgment of the district court. Also, we GRANT

Mr. Williams’s amended motion to supplement the record with the response he

filed in district court to the defendants’ motion to dismiss or for summary

judgment, and we DENY his motion to correct his opening brief. We GRANT

Mr. Williams’s motion to proceed in forma pauperis but remind him that he




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remains responsible for making partial payments until the entire fee is paid.



                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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