F I L E D
                                                         United States Court of Appeals
                                                                 Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                OCT 24 2003
                        FOR THE TENTH CIRCUIT
                                                           PATRICK FISHER
                                                                     Clerk

BRIAN K. STACK,

            Plaintiff-Appellant,

v.                                              No. 02-4157
                                          (D.C. No. 2:97-CV-466-C)
O. LANE MCCOTTER, Executive                       (D. Utah)
Director, Utah Department of
Corrections; J. TERRY BARTLETT,
Director of Institutional Operations at
the Utah State Prison, individual and
official capacity; HAZE LOCKE,
Director, Inmate Placement Program
for the Utah Department of
Corrections; ANNABELLE
FACKRELL, Inmate Administration
Bureau Department of Corrections,
individual and official capacity;
HANK GALETKA, Warden, Utah
State Prison, individual and official
capacity; CRAIG BALLS,
Classification Coordinator, Utah State
Prison, individual and official
capacity; JANET KNUDSEN, Property
Officer at the Utah State Prison,
individual and official capacity; A. L.
CARLSON, Property Officer at the
Utah State Prison, individual and
official capacity; HENRY
SCHWEMMER, Property Officer at
the Utah State Prison, individual and
official capacity; JACK T. EVANS,
Property Administrator at the Utah
State Prison, individual and official
capacity; EDWARD KINGSFORD,
    Administrative Services, Utah
    Department of Corrections, individual
    and official capacity; FRANK
    MYLAR, Assistant Attorney General,
    Utah Department of Corrections,
    individual and official capacity;
    DONALD KITCHELL, Sargent, Utah
    State Prison, Gunnison, individual and
    official capacity; NFN BIGELOW,
    Lieutenant, Utah State Prison,
    Gunnison, individual and official
    capacity; (NFN) FOX, Officer,
    Utah State Prison, Gunnison,
    individual and official capacity,

                  Defendants-Appellees.


                             ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.



         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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

                                             -2-
      Plaintiff-appellant Brian K. Stack appeals from the district court’s order

awarding summary judgment to defendants O. Lane McCotter and J. Terry Bartlett

on Stack’s civil rights complaint. Stack brought his complaint pursuant to

42 U.S.C. § 1983, charging, among other things, that McCotter and Bartlett were

deliberately indifferent to his serious medical needs. Because we conclude that

Stack presented sufficient evidence to survive summary judgment on the issue of

these defendants’ deliberate indifference, we reverse and remand.


                                         I.

      To begin with, we must determine the scope of Stack’s appeal. The district

court’s order granting summary judgment on Stack’s second amended complaint

was the last in a series of orders that progressively whittled down a much broader

complaint about prison conditions. In his initial and first amended complaints,

Stack also included claims that we will call his “involuntary servitude” claims.

The district court ordered him to omit these claims when he filed his second

amended complaint. Stack now seeks to resurrect these claims for purposes of

appeal. He states:

             Of all the allegations and contentions filed in [plaintiff’s]
      complaint, he is only pursuing appeal on the claims of denial of
      medical/dental treatment, cruel and unusual punishment; and
      involuntary servitude–slavery, equal protection, due process of law,
      and cruel and unusual punishment regarding the sale of his person to
      a private corporation that lacked proper authority to imprison
      plaintiff.

                                         -3-
Aplt. Opening Br., at 1.

       To determine whether we have jurisdiction over these involuntary servitude

claims, we begin by examining     Stack’s notice of appeal. It states that he intends

to appeal from “the decision that was handed down, and filed in this case on

July 19, 2002,” that is, the district court’s summary judgment order. R., Vol. III,

doc. 157. Stack makes no mention of the previous order disposing of his

involuntary servitude claims.

       This omission is not necessarily fatal to appellate review of these claims,

however. We have jurisdiction over the district court’s order dismissing Stack’s

involuntary servitude claims, if that order “merged” into its later order granting

summary judgment on his second amended complaint.         McBride v. CITGO

Petroleum Corp. , 

, 1104 (10th Cir. 2002) (“[A] notice of appeal

which names the final judgment is sufficient to support review of all earlier

orders that merge in the final judgment.”). We hold that it did merge, and we

therefore have jurisdiction.   Cf. Harvey v. Waldron , 

, 1011-12

(9th Cir. 2000) (holding notice of appeal from dismissal of amended complaint

gave court jurisdiction over appeal from district court’s earlier order dismissing

defendant judge as absolutely immune, and ordering plaintiff to file amended

complaint omitting judge).




                                          -4-
       In sum, Stack’s notice of appeal preserved review of his involuntary

servitude claims for appeal.   1
                                   For the reasons stated in the magistrate judge’s

well-reasoned report and recommendation dated May 27, 1999,          see R., Vol. I,

doc. 56, at 3-7, 9-11 & n.5, however, we hold that the district court properly

dismissed the involuntary servitude claims on the merits.


                                             II.

       We turn to the claim for denial of dental care. As mentioned, this claim

was resolved on summary judgment.

       Summary judgment is appropriate if the pleadings, depositions,
       answers to interrogatories, and admissions on file, together with the
       affidavits, if any, show that there is no genuine issue as to any
       material fact and that the moving party is entitled to a judgment as
       a matter of law. We review a grant of summary judgment       de novo ,
       applying the same standard as the district court. We examine the
       record to determine whether any genuine issue of material fact was in
       dispute; if not, we determine whether the substantive law was applied
       correctly, and in so doing we examine the factual record and
       reasonable inferences therefrom in the light most favorable to the
       party opposing the motion.    However, where the non moving party
       will bear the burden of proof at trial on a dispositive issue that party
       must go beyond the pleadings and designate specific facts so as to
       make a showing sufficient to establish the existence of an element
       essential to that party’s case in order to survive summary judgment.

Sealock v. Colorado , 

, 1209 (10th Cir. 2000).


1
       Defendants argue that they are not parties to the involuntary servitude
claims. Aplee. Br. at 6. While they were not    served with the complaints
containing these claims, they were   named in the claims. See R., Vol. I, doc. 3
at 12-15, 27-30, 34; doc. 39 at 14-16, 29-32.

                                             -5-
      At the time of the allegations in Stack’s complaint, defendant McCotter was

the Executive Director for the Utah Department of Corrections. Defendant

Bartlett was the Director of Institutional Operations for the Department of

Corrections. Bartlett was one of the signers, on behalf of the State of Utah, of

a contract between the Utah Department of Corrections (UDC), and Dove

Development Corporation (Dove), a private, for-profit business that runs a prison

in Texas. The contract provides that Dove will confine and supervise 100 Utah

inmates for one year in exchange for a payment of over two million dollars.

      The contract requires Dove to provide “normal psychiatric,   dental ,

medication services, and medical services to UDC inmates other than

extraordinary health care services.” R., Vol. II, doc. 126, ex. B at 2 (emphasis

added). “Extraordinary services,” for dental care, were defined as services that

could not be performed at an on or off-site dentist’s office, or those requiring

surgery or anaesthesia other than Novocain, similar local anaesthetics or nitrous

oxide. 

responsible for the routine, non-extraordinary dental

services.

      When Stack arrived at the Dove facility, he was handed a statement of

policies for medical services provided by Dove. Among other things, the policy

stated:

      DOVE will only pay for extractions (dental).   Do not ask to go to the
      dentist unless you are willing to have your tooth pulled. Any other

                                          -6-
       dental services must be paid by inmate in advance. If you go to the
       dentist and the dentist determines you do not actually have a dental
       problem, your account will be charged for the amount the dentist
       determines. If you are indigent, disciplinary measures will be taken.

R., Vol. III, doc. 133, ex. 1 at 1.

       These limitations are inconsistent with Dove’s obligations under the

contract and, as will be seen, arguably violate the Eighth Amendment. Dove’s

restrictive policies set the stage for what happened next. Stack developed

periodontitis, an infection of his gums, and spent the next seven months

attempting to obtain treatment. In his complaint, Stack details his experiences

with Dove’s dental care system:

              During this seven (7) month[] period, March to October
       [1996], the plaintiff[’]s gums became infected at least three (3) times
       where sores developed. Plaintiff[’]s gums became swollen in these
       infected areas with [pus] in them, and he developed bleeding gums,
       which is still a problem today. To [exacerbate] things further, after
       the plaintiff finally was taken to the dentist, he was told by this
       person that he had serious peridontal disease caused by this lack of
       medical treatment.

              During this seven (7) month period the structures that hold and
       protect teeth, deteriorated almost to a point where many of the
       plaintiff[’]s teeth were, and are, in danger of literally falling out.

             With the proper care and treatment this situation would not
       have occurred.

R., Vol. III, doc. 66, at 4.

       The evidence of record shows that Stack made numerous attempts to obtain

dental care during the seven-month period, but was repeatedly rebuffed by Dove

                                         -7-
officials. On April 17, 1996, he filed a medical request stating, “I have some

teeth hurting and need care for them.” R., Vol. II, doc. 126, ex. C at 1. The

response section of the request notes that the request was “Cancelled” because

“no guards avail.”   

17, 1996, Stack turned in another medical request

stating, “I need some filling work done on one possibly two teeth, and I need

them cleaned. There may be some other problems I need taken care of also.”

While the response section notes a plan to refer the complaint to the

dentist, the top of the request form states, “Dentist doing extractions only.”         

29, 1996, nearly three and one half months after his initial request,

Stack was finally seen by a dentist who noted advanced periodontitis.            

The dentist prescribed an antibiotic mouthwash and noted the need for a further

evaluation for periodontal disease.     

14, 1996, Stack filed another

medical request, stating he would “like to have that appointment for the dentist

you said was going to happen. I need my teeth worked on to help get rid of some

of this pain as well as fix about two of them that need help.”       

There was

no response to this request. On September 4, 1996, Stack filed another request,

stating he had “Sore teeth that need to be fixed.”      

The response noted

that “Dentist is doing extractions only at this time per his secretary” but

scheduled an appointment for October 16, 1996.         

the October 16, 1996 appointment, Dr. Grander saw Stack. His notes

indicate that Stack needed $419.00 worth of dental work. Apparently, UDC

agreed to pay for the work, and in late October 1996, seven months after his teeth

problems began, Stack finally received the necessary dental care to solve his acute

problems. Dr. Grander noted on October 28, however, that Stack’s long-term

prognosis for the affected teeth was poor.     

       The magistrate judge assigned to this case recommended that the

district court deny Bartlett and McCotters’ motion for summary judgment.

See R., Vol. III, doc. 144. While the parties disputed the seriousness of plaintiff’s

dental conditions, he found that “there is enough evidence [of objective

seriousness to survive summary judgment] showing that plaintiff had to endure

pain for several months while waiting to get adequate treatment.”       

He

further stated that “[i]t was defendants’ duty, as administrators of UDOC to make

sure that Dove, the contractor, was abiding by constitutional requirements to

provide safe conditions to inmates under their control.”    

In finding that

Bartlett and McCotter were affirmatively linked to plaintiff’s injury, the

magistrate judge relied solely on their general duty to supervise the dental care

provided to inmates or to “provide an adequate contract obligation and make sure

that Dove did not violate the constitutional rights of UDOC inmates.”       

                                             -9-
       Bartlett and McCotter filed objections to the magistrate judge’s report and

recommendation. The district court rejected the recommendation, and granted

summary judgment. It held that Dove’s dental policy did not cause Stack serious

harm, because Dove eventually did pay for Stack’s treatment. R., Vol. III,

doc. 155, at 6. It further found that Stack had failed to show that the defendants

were aware that Dove had delayed his treatment.        

       “[A] prison official violates the Eighth Amendment only when two

requirements are met. First, the deprivation alleged must be, objectively,

sufficiently serious . . . [Second,] a prison official must have a sufficiently

culpable state of mind.”    Farmer v. Brennan , 

, 834 (1994)

(quotations omitted). “In prison-conditions cases that state of mind is one of

deliberate indifference to inmate health or safety.”     

We now consider whether Stack has shown sufficient evidence of each of these

elements to survive summary judgment.

       1. Sufficiently serious medical need

       “A medical need is sufficiently serious if it is one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.”      Sealock v.

Colorado , 

, 1209 (10th Cir. 2000) (quotation omitted). “[D]ental

care is one of the most important medical needs of inmates.”        Ramos v. Lamm ,


                                            -10-


, 576 (10th Cir. 1980). “Accordingly, the [E]ighth [A]mendment

requires that prisoner be provided with a system of ready access to adequate

dental care.” Hunt v. Dental Dep’t , 

, 200 (9th Cir. 1989). At least

one court has held that a policy of requiring that only extractions will be

performed for dental problems is constitutionally deficient.   Heitman v. Gabriel ,

, 627 (W.D. Mo. 1981) (“While it is by no means unprecedented

for an old-fashioned prison regime to offer tooth extraction as the only dental

care, no case has been found where such a limitation has been deemed judicially

tolerable”) (quotation and citation omitted).

       Once he was finally able to see a dentist, that dentist diagnosed Stack with

advanced periodontitis. Periodontitis

       usually begins with gingivitis. Abundant calculus deposits beneath
       the gingival margin are characteristic. The gingivae progressively
       lose their attachment to the teeth, and bone loss begins so that the
       periodontal pockets deepen. Destruction of the supporting osseous
       tissue is evident radiographically. With progressive bone loss, teeth
       may loosen and gingivae recede. Tooth migration is common in later
       stages. Pain is usually absent unless an acute infection (e.g. abscess
       formation in one or more periodontal pockets) supervenes.

Merck Manual of Diagnosis & Therapy        at 768-69 (17th ed. 1999).

       Stack states in his complaint that during the time he did not receive

treatment, his gums were swollen with pus and were bleeding. This suggests an

acute infection. His requests for medical assistance referred to the pain he was

suffering because of his untreated dental condition. He states that his teeth are

                                           -11-
now in danger of falling out because of progressive bone loss associated with

his disease.

       In their appellate brief, Bartlett and McCotter do not dispute the severity of

Stack’s symptoms prior to treatment.      2
                                               Since he eventually received satisfactory

treatment, however, they classify this as a matter of delay rather than denial of

treatment. In the district court, they cited      Olson v. Stotts , 

, 1477

(10th Cir. 1993), for the proposition that delay in medical care is actionable under

the Eighth Amendment only where the delay results in “substantial harm.” They

argue that since Stack received treatment that resolved his pain and cured his

dental problems, he was not substantially harmed.

       The evidence in the record is ambiguous on the question of whether Stack

suffers any lingering effects from the delay in treatment. At his deposition he

stated that his teeth were “pretty weak” and were still “loose.” R., Vol. II,

doc. 126, ex. A at 37. He stated in his response to summary judgment that the



2
       In their district court summary judgment brief, defendants argued that
“although plaintiff was experiencing some discomfort, his dental condition was
not so serious as to require immediate treatment.” R., Vol. II, doc. 126, at 7.
The only evidence defendants offered for this proposition was the medical request
forms themselves, which defendants claimed requested only “generic, routine
cleaning, filling, type dental treatment.” 

mischaracterized
the record. Stack stated on the forms that he was suffering pain, not “some
discomfort.” He repeatedly stated that his teeth needed work, not just cleaning or
fillings. The dentists who examined him determined that he had advanced
periodontitis, requiring over four hundred dollars’ worth of dental treatment.

                                               -12-
delay caused him loss of bone mass around his teeth.       

doc. 133, at 8.   3



On the other hand, he admitted that the treatment he eventually received resolved

his problem with tooth pain.     

doc. 126, at 31. He described his

problems as “taken care of,”    

and admitted that he did not ask to see

a dentist after he returned from Texas,   

See also R., Vol. III,

doc. 133, at 4 (admitting, in response to summary judgment, that Stack “finally

received dental care that solved his dental concerns”).

       Thus, the evidence concerning permanent damage due to delay in treatment

is equivocal. Stack is, of course, entitled to have reasonable inferences drawn in

his favor on summary judgment. More importantly, even if Stack cannot show

permanent injury, that is not fatal to his delay claim. Under circuit precedent,

pain itself can be considered substantial harm resulting from delay, giving rise to

a cause of action for deliberate indifference.

       A prime example of this principle can be found in       Sealock , 218 F.3d

at 1205. In that case, the defendants delayed treatment of plaintiff’s heart attack

symptoms. Although it was clear that plaintiff had in fact suffered a heart attack

and had been in severe pain during the hours it took defendants to finally provide

him with treatment, the district court rejected plaintiff’s claim because he “failed


3
      While this was a statement in a brief rather than summary judgment
evidence, it is consistent with Stack’s other evidence admissible in summary
judgment proceedings.

                                          -13-
to show that the delay in receiving medical treatment caused him any injury.”

This court disagreed with the district court, stating that although

plaintiff “did not present specific medical evidence of damage to his heart

resulting from the delay,” since “[t]he pain and suffering imposed by

[defendant’s] failure to get him treatment lasted several hours,” the objective

element of deliberate indifference was established by the pain itself.     

holding is limited, because “not every twinge of pain suffered

as the result of delay in medical care is actionable.”    

here,

however, coupled with the result in other cases, suggests that the pain Stack

suffered was not de minimus . The Eighth Circuit, for example, upheld the denial

of summary judgment to a prison doctor who waited three weeks to refer an

inmate who had an impacted and infected wisdom tooth to an oral surgeon.           Boyd

v. Knox , 

, 969 (8th Cir. 1995). It held that “[a] three-week delay in

dental care, coupled with knowledge of the inmate-patient’s suffering, can

support a finding of an Eighth Amendment violation under section 1983.”          

was delayed considerably longer than three weeks. There is,

then, at the very least a summary judgment issue about whether Stack met the

“sufficiently serious” criteria for an Eighth Amendment claim.




                                             -14-
       2. Deliberate indifference

       We turn to the subjective, deliberate indifference element. The subjective

component of the Eighth Amendment test is met if the defendant “knows of and

disregards an excessive risk to inmate health or safety.”   Sealock , 218 F.3d

at 1209 (quotation omitted). The district court viewed Stack’s complaint as

alleging two forms of deliberate indifference. First, that Bartlett and McCotter

knew that adequate dental services were unavailable at Dove, and that Dove had

developed a policy that permitted only extractions. Second, that they had specific

notice that Stack had a serious dental condition for which treatment had been

unreasonably delayed.

              A. Extraction-only policy

       Most of the district court’s discussion dealt with the first assertion of

deliberate indifference: whether the defendants had knowledge of Dove’s

deficient dental policy. The district court relied on its finding that the dental

policy did not harm Stack, because he eventually received treatment. As we have

seen, however, that analysis begs the question, because Stack’s claim is based in

part on delay in receiving treatment, which can be attributed to the policy.

       It is undisputed that one of the reasons Stack was given for treatment delay

was that Dove’s dentist was only performing extractions. As the evidence shows,

the “extraction only” policy was not used merely as a device for specifying the


                                            -15-
type of care inmates could receive.     4
                                            It was also used as a device for unreasonably

delaying treatment.

       The mere fact that Dove did not adhere to the contract or provide

constitutionally-adequate dental care is not enough, by itself, to show deliberate

indifference on the part of Bartlett and McCotter. To be held liable under § 1983

for deliberate indifference, an official “must both be aware of facts from which

the inference could be drawn that a substantial risk of serious harm exists, and he

must also draw the inference.”        Farmer , 511 U.S. at 837.

       Despite the high standard erected by          Farmer , the magistrate judge

attempted to hold the defendants responsible based on supervisory duty alone,

stating that it was their duty, “as administrators of UDOC to make sure that Dove,

the contractor, was abiding by constitutional requirements to provide safe

conditions to inmates under their control.” R., Vol. III, doc. 144, at 4.

Unfortunately, he cited no authority for this proposition, and we have found none.

In fact, unpublished authority from this circuit is to the contrary.       Florez v.




4
      Thereby possibly triggering the rule that inmates who merely have a
disagreement with their medical providers cannot claim deliberate indifference.
See Harrison v. Barkley , 

, 144 (2d Cir. 2000) (Meskill, J.,
dissenting) (arguing that patient could not insist on particular dental procedures
because a prisoner “has no right to dictate the type or scope of care that he
receives”) (quotation omitted).

                                              -16-
Johnson , 63 Fed. Appx. 432, 436 (10th Cir. Mar. 28, 2003) (citing    Ledbetter v.

City of Topeka , 

, 1187 (10th Cir. 2003)).

       That said, the point the magistrate judge made about DOC’s contractual

arrangement with Dove is important. The relationship between DOC and Dove is

a necessary one for imposition of § 1983 liability on DOC officials, because it

establishes DOC’s indirect responsibility for the treatment Utah inmates received

at Dove. It is not, however, a   sufficient one, because under Farmer , liability may

only be imposed based on deliberate indifference. Stack must show more to hold

Bartlett and McCotter liable.

              B. Defendants’ specific knowledge

       Stack did provide three pieces of evidence to demonstrate that Bartlett and

McCotter specifically knew he was being denied dental care, and failed to act:

(1) a copy of a petition for writ of mandamus filed in Utah State Court against

McCotter; (2) a copy of a mandamus petition filed in Utah State Court against

McCotter and Bartlett; and (3) his “Declaration of Brian K. Stack,” in which he

states that Bartlett met with him in Texas and listened to the complaints he had

about dental care.   See R., Vol. III, doc. 134.

       The district court did not mention Stack’s declaration. Stack filed it the

same date as his summary judgment brief, signed it under oath, and plainly

intended it to be part of his summary judgment response. In the declaration,


                                          -17-
Stack states, “Defendant Bartlett met with me in section ‘C’ of the Frio County

Detention Center when he came down for the inspection he did, and listened to

the medical complaints I had concerning dental.”     

         Stack’s declaration does not state the exact date when Bartlett met with him

or precisely what his complaints were about his dental care. Nevertheless, as the

non-movant in summary judgment proceedings, Stack is entitled to reasonable

inferences from the evidence he did provide. If Stack’s teeth were hurting, his

gums were bleeding and full of pus, and Dove officials were ignoring his dental

care requests, it seems reasonable to infer that these were the things he discussed

with Bartlett, not some “general dissatisfaction with the Dove facility’s medical

or dental policy” as defendants contend. Aplee. Br. at 14. Moreover, Bartlett

admits that he visited the Dove facility during the time Stack was confined there

(although he does not recall any conversation with Stack). R., Vol. II, doc. 126,

ex. D.

         Turning to the second piece of evidence concerning Bartlett and McCotters’

knowledge, the district court’s analysis of the mandamus petition filed against

them (Utah District Court No. 960900312CV) on January 5, 1996, seems correct.

The district court found that the petition only contained generalized allegations

complaining about the Dove’s “extraction only” policy. The most specific

statement Stack made in the petition about dental care was that “[d]isciplinary


                                          -18-
measures per the Dove Corporation’s statements           can be initiated against

a prisoner similar to petitioner who has complained about teeth in pain, (for

example) and does not want his teeth pulled.” R., Vol. III, doc. 133, ex. 3, at 3

(emphasis added). A careful reading shows that this is not a statement that Stack

had actually complained about tooth pain; only that he might be disciplined if he

did. Moreover, the petition dates from January 1996, before Stack began

complaining about his problems with periodontitis.

       As the district court noted, however, the mandamus petition filed against

McCotter on September 12, 1996 (Utah District Court No. 960906449) contained

the same allegations Stack raised in his complaint in this case. No one could read

this mandamus petition and be unaware of the seriousness of Stack’s needs and

the inadequate treatment he was receiving from Dove. The district court

nevertheless rejected this petition as evidence of deliberate indifference, on the

ground that Stack failed to present evidence that the petition had actually been

served on McCotter.

       Service of a complaint is evidenced in several ways. One source of

evidence is the state district court docket sheet. This is an official court record

in a related state court case, subject to judicial notice.     See Fed. R. Evid. 201;

St. Louis Baptist Temple, Inc. v. FDIC       , 

, 1172 (10th Cir. 1979).

McCotter did not actually deny that the petition was served on him, but his


                                              -19-
statement that Stack failed to   prove that it had been served evidently was

sufficient to forestall further inquiry by the district court.

       Acting under our power to take judicial notice of related proceedings,   see

St. Louis Baptist Temple , 605 F.2d at 1172, we have obtained and reviewed a

copy of the state district court docket sheet in the mandamus proceeding. The

docket sheet plainly shows that the mandamus petition was filed on September 13,

1996, that defendant McCotter was represented in the action by an attorney, that

the district court ordered the respondents, including McCotter, to file an answer

on October 1, 1996, and that he filed a motion to stay the order requiring a

response on October 15, 1996. Stack ultimately dismissed the mandamus petition,

as it became moot once he received the dental treatment he had sought.

       Perhaps recognizing the weakness in their “no proof of service” argument,

defendants now attempt to argue that the mandamus petition does not prove

deliberate indifference because “during its pendency, Dove requested and

received funding from UDOC to cover the cost of plaintiff’s dental care.” Aplee.

Br. at 13. In other words, because UDOC approved payment for Stack’s dental

care, which Stack finally received in late October 1996, McCotter was not

deliberately indifferent for failing to take immediate action on the mandamus

petition filed six weeks before and served on him no later than October 1.




                                           -20-
      There is no evidence, however, that defendants made this argument before

the district court. They had every opportunity to do so, in their reply to Stack’s

response to their motion for summary judgment.     See R., Vol. III, doc. 139, at 3.

This court can, of course, affirm the grant of summary judgment for any reason

that appears in the record. We decline to do so in this instance, however, because

defendants’ argument does not establish, as a matter of law or undisputed fact,

lack of notice or lack of deliberate indifference. Their barely articulated premise

that the mandamus petition somehow sent McCotter to the rescue, causing him to

approve treatment that ultimately resolved Stack’s problems, finds scant support

in the record, and substantial factual questions remain on the deliberate

indifference issue.


                                         III.

      To summarize, we hold that the district court properly dismissed Stack’s

“involuntary servitude” claims, and ordered him to file an amended complaint

omitting them. The district court improperly granted summary judgment on

Stack’s claim involving his dental care, however, as genuine issues of material

fact remain on this record concerning Bartlett and McCotters’ deliberate

indifference to Stack’s serious medical needs.




                                         -21-
      The judgment of the United States District Court for the District of

Utah is AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings in accordance with this order and judgment.


                                                   Entered for the Court



                                                   David M. Ebel
                                                   Circuit Judge




                                       -22-