United States Court of Appeals
For the Eighth Circuit
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No. 14-2775
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Tony Lanier Jackson
Plaintiff - Appellant
v.
Nursing Supervisor Riebold; United States of America
Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Springfield
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Submitted: September 24, 2015
Filed: February 24, 2016
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Before MURPHY, MELLOY, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
Tony Lanier Jackson, an inmate incarcerated at the United States Medical
Center for Federal Prisoners (USMCFP) in Springfield, Missouri, filed a pro se civil
action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971), against Nursing Supervisor Shannon Riebold. Jackson alleges
that Riebold was deliberately indifferent to his serious medical needs by failing to
respond in a timely manner when the artery comprising Jackson's dialysis access port
ruptured. On appeal, Jackson argues that the district court1 erred in (1) granting
summary judgment to Riebold on Jackson's deliberate-indifference claim, (2) denying
Jackson additional discovery to oppose Riebold's summary-judgment motion, and (3)
denying Jackson leave to amend his complaint to include a deliberate-indifference
claim against David L. Douglas, PA-C. We affirm.
I. Background
Jackson is a federal inmate who, at the time of the events alleged in his
complaint, was incarcerated at the USMCFP in Springfield, Missouri. The Bureau of
Prisons (BOP) placed Jackson at the USMCFP because he has end-stage renal
disease, which requires dialysis treatment three times per week. Jackson also has
anemia, peripheral neuropathy, and hypertension. In order for Jackson to receive
dialysis treatment, he has an arteriovenous (AV) fistula, which is a surgically-created
connection between an artery and a vein. The AV fistula enables hemodialysis.
Hemodialysis removes a patient's blood, filters it, and returns it to the body. During
the relevant time period, Jackson was dialyzing through an AV fistula on his right
arm created several years prior. Over time, AV fistulas may become prone to develop
a pseudoaneurysm—a pocket of blood created by a leak or a hole in the artery.
On June 11, 2012, Jackson was evaluated for a possible pseudoaneurysm after
the USMCFP staff in the dialysis department reported that he had an enlarged area
on his AV fistula. During this evaluation, Jackson informed Douglas, a certified
physician's assistant, that the enlarged area on his AV fistula had existed for
approximately two weeks. According to Jackson, the AV fistula had "'always' been
large." Douglas reported "no active bleeding" and that Jackson had stated that the site
had "gotten smaller over the past 1 w[ee]k." Douglas counseled Jackson to
immediately report any issues that he may have with his dialysis access port because
1
The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
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of the potentially serious consequences, including death. Jackson indicated that he
understood. Douglas ordered an ultrasound of Jackson's AV fistula to evaluate the
pseudoaneurysm for possible repair and ordered mapping to determine the necessity
of a new AV fistula for dialysis access. Douglas also advised Jackson "to notify staff
if any bleeding occurs" and indicated that he would "make further clinical decisions
based on [the ultrasound] results."
Jackson met with the USMCFP's consulting nephrologist on June 11, 2012. In
his report (dated June 25, 2012), the nephrologist indicated that Jackson had
"developed a very large right forearm pseudoaneurysm associated with his AV fistula.
He will be referred to the surgeon for revision of same."
The ultrasound and mapping were completed on June 19, 2012, and the
USMCFP received those results on June 25, 2012. During that time, Jackson
continued to receive dialysis treatments with no complications or complaints noted.
On June 28, 2012, Riebold was assigned as the nursing supervisor on the
"Morning Watch" shift, which starts at 8:00 p.m. and ends at 8:00 a.m. the following
day. Nursing supervisors assigned to this shift are not assigned to one specific area
of the USMCFP but instead must cover all areas of the institution and respond to any
medical-related issues that may arise during that shift. If a medical emergency arises,
nursing supervisors must respond to the emergency, assess the situation, and make
decisions related to providing further nursing care, if necessary.
That day, Jackson's pseudoaneurysm ruptured. Jackson avers that the
pseudoaneurysm ruptured at "approximately 9:40 p.m." At that time, Jackson
maintains that Unit Officer Gary Jergenson called Riebold from the officers' station.
Three inmates—Dusty Cox, Donald Fletcher, and Gregory Weatherall—assisted
Jackson following the rupture by wrapping his arm with towels to try and stop the
bleeding. According to Cox, Riebold "arrived" at "approximately 10:00[]p[.]m[.]"
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But, according to inmate Donald Fletcher, Riebold had already left from examining
Jackson's arm "at around 9:45 p.m. or so." Cox maintains that Riebold "left the unit
[at] appro[x]imately 10:03[]p[.]m[.]" In any event, Jackson maintains that upon
Riebold's arrival, Riebold looked at Jackson's arm; told Jackson, "I'll be back"; and
and then departed. According to Jackson, Officer Jergenson called Riebold a second
time, and Riebold responded again. Cox avers that this second call occurred "[a]t
appro[x]imately 10:45[]p[.]m[.]," after he "and inmate Fletcher asked Officer
Jergenson what was taking so long." But, according to Fletcher, "[i]t was about 10:35
[p.m.] when [Riebold] returned." Weatherall agrees that Riebold returned "around
10:35 [p.m.] or so." According to Fletcher, Riebold exited the unit with Jackson "at
approximately 10:58 p.m.," Jackson entered the ambulance at "11:28 p.m.," and the
ambulance departed with Jackson "[a]t about 11:35 [p.m.]" Cox similarly avers that
Riebold took Jackson from the unit "[a]t approximately 11:00[]p[.]m[.]" Records from
the BOP also show that Jackson departed from the USMCFP to the local, outside
hospital not later than 11:28 p.m. Riebold likewise entered a note into the BOP's
electronic medical record system at 11:30 p.m., indicating that Jackson was taken via
ambulance to the hospital.
Upon Jackson's arrival at the hospital, he underwent emergency surgery. The
surgery successfully repaired the ruptured fistula without complication, and Jackson
was given a new dialysis access port prior to his discharge from the hospital on July
2, 2012.
Jackson filed a pro se Bivens action against Riebold, alleging a deliberate-
indifference claim. Jackson contended that Riebold failed to respond in a timely
manner when Jackson's AV fistula ruptured and that this delay in treatment violated
the Eighth Amendment's prohibition against cruel and unusual punishment.
Riebold moved for summary judgment, arguing that (1) sovereign immunity
barred Jackson's official-capacity claims, (2) Jackson failed to show a violation of his
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constitutional rights, and (3) qualified immunity shielded Riebold from personal
liability. After Riebold moved for summary judgment, Jackson moved to "dismiss"
Riebold's summary-judgment motion or, in the alternative, to stay a ruling on the
summary-judgment motion pending further discovery. Jackson wanted to obtain video
footage of the incident alleged in his complaint. Riebold replied that, as shown in the
declaration of S. Anderson, Special Investigative Agent (SIA) at the USMCFP, no
video footage of the alleged incident exists. SIA Anderson averred that events like
Jackson's June 28, 2012 medical emergency would not typically be preserved for
review by the video surveillance system. SIA Anderson reviewed the retained video
files to determine if video footage was stored from the date of the incident and
determined that no video footage exists concerning Jackson or the incident. Riebold
further argued that discovery was not necessary because Riebold's pending motion
hinged on the substantial evidentiary record already produced in the case. Riebold
contended that Jackson failed to set forth what additional facts discovery might
reveal. The district court denied Jackson's motion to stay a ruling on Riebold's
summary-judgment motion and stayed discovery pending its ruling on that motion.
Jackson also moved for leave to file an amended complaint to state new claims
against Douglas; specifically, Jackson alleged in his proposed amended complaint
that Douglas failed to perform a surgical revision to Jackson's AV fistula. In his
proposed amended complaint, Jackson also restated his allegations against Riebold.
In response, Riebold argued that the district court should deny the motion as futile
because the existing and proposed complaints contained negligible differences, and
the proposed amended complaint did not advance a new claim against Riebold—the
only defendant before the court. The district court denied Jackson's motion.
The district court granted summary judgment to Riebold. First, the district court
held that sovereign immunity barred Jackson's official-capacity claims against
Riebold. Second, as to Jackson's deliberate-indifference claim, the court held that
Jackson failed to present any evidence in support of his allegation that Riebold let
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him bleed for over two hours before calling an ambulance. The court found that the
evidence directly contradicted Jackson's allegation because USMCFP records show
that Jackson was in transit to the hospital via ambulance within one hour of a medical
emergency being announced.2 The court determined that the undisputed facts showed
that Riebold immediately responded to the medical emergency announcement and,
upon his arrival to Jackson's housing unit, immediately assessed the situation and
contacted the medical officer on duty. Once the medical officer and Riebold
determined that Jackson needed transport to a local, outside hospital for further
treatment, Riebold immediately called for an ambulance. Finally, the court held that
Riebold was entitled to qualified immunity because (1) Jackson failed to allege a
violation of a constitutional right, or, in the alternative, (2) the constitutional right
alleged was not so clearly established that a reasonable public official would have
known his conduct violated the Constitution.
II. Discussion
On appeal, Jackson argues that the district court erred by (1) granting summary
judgment to Riebold on his deliberate-indifference claim, (2) denying Jackson's
request for discovery, and (3) denying Jackson leave to file an amended complaint to
add a deliberate-indifference claim against Douglas.
A. Summary Judgment
Jackson first argues that the district court erred in granting summary judgment
to Riebold on Jackson's claim that Riebold was deliberately indifferent to Jackson's
serious medical needs. According to Jackson, the district court erroneously relied on
Riebold's self-serving affidavit in concluding that Riebold acted immediately in
response to Jackson's medical emergency. Jackson maintains that the district court
2
USMCFP records provide that a medical emergency was announced at 10:30
p.m. regarding Jackson. Jackson, however, averred that a medical emergency was
never announced.
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improperly disregarded his, Cox's, Fletcher's, and Weatherall's affidavits that
contradicted Riebold's assertions of fact. Alternatively, he argues that even the district
court's recitation of the facts "demonstrate[] that Mr. Jackson was not given any
medical attention until he was transferred to the hospital, nearly one hour after the
purported medical emergency was announced." Jackson concludes that the
"obviousness of the risk and the circumstances surrounding this case give rise to
material issues of fact regarding whether Defendant Riebold was aware of the
substantial harm his acts would cause to Mr. Jackson and whether he deliberately
disregarded that risk."3
3
On appeal, Riebold argues that the district court properly granted summary
judgment to him on Jackson's deliberate-indifference claim because sovereign
immunity bars any official-capacity claims that Jackson asserted against Riebold.
Riebold points out that Jackson's original complaint is silent as to whether the claims
were asserted against Riebold in his individual or official capacity. Riebold contends
that, under this court's precedent, an individual-capacity claim must be unambiguous.
In response, Jackson notes that the district court never made a finding that
Jackson's complaint raised only official-capacity claims and apparently assumed the
existence of individual-capacity claims against Riebold when it granted summary
judgment and qualified immunity to Riebold on Jackson's individual-capacity claim
for deliberate indifference. But Jackson acknowledges this court's recent
reaffirmation "that Eighth Circuit precedent requires a Section 1983 plaintiff to
provide a 'clear statement' indicating that the plaintiff is suing a defendant in his or
her individual capacity." (Citation omitted.)
Riebold overlooks that in Jackson's proposed amended complaint, he clarified
that he was also suing Riebold in his individual capacity. The district court denied the
proposed complaint amendment based on futility. See infra Part II.C. Because the
district court rejected Jackson's amended complaint—which would have expressly
added the individual-capacity claim against Riebold—on grounds of futility, we
necessarily must address whether, assuming Jackson did sue Riebold in his individual
capacity, his claim would have nonetheless failed on the merits.
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"We review de novo the district court's grant of summary judgment, applying
the same standards as the district court," and we will affirm the grant of summary
judgment "if the record indicates 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." Laughlin v.
Schriro, 430 F.3d 927, 928 (8th Cir. 2005) (quotations and citations omitted). "We
review the facts in the light most favorable to the nonmovant." Id. (citation omitted).
The Eighth Amendment requires state prison officials to provide inmates with
needed medical care. Id. (citation omitted). "To prevail on a claim that a delay in
medical care constituted cruel and unusual punishment, an inmate must show both
that: (a) the deprivation alleged was objectively serious; and (b) the prison official
was deliberately indifferent to the inmate's health or safety." Id. at 929 (citing
Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir. 1995)). Because Jackson's
deliberate-indifference claim is based on "a delay in medical treatment," we measure
"the objective seriousness of the deprivation . . . by reference to the effect of delay in
treatment." Id. (quotations and citations omitted). "To establish this effect, the inmate
'must place verifying medical evidence in the record to establish the detrimental effect
of delay in medical treatment[.]'" Id. (quoting Crowley v. Hedgepeth, 109 F.3d 500,
502 (8th Cir. 1997)). Applying this standard, we have previously held that where an
inmate "submitted evidence documenting his diagnosis and treatment, [but] he
offered no evidence establishing that any delay in treatment had a detrimental effect,"
the inmate "failed to raise a genuine issue of fact on an essential element of his
claim." Id. (citing Dulany v. Carnahan, 132 F.3d 1234, 143 (8th Cir. 1997) (holding
that summary judgment in favor of the defendants was not in error as to
inmate-plaintiffs, where neither submitted verifying medical evidence indicating that
a delay in treatment resulted in an adverse effect)).4
4
See also Moots v. Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) (stating that
inmate complaining of delay in treatment must offer verifying medical evidence that
delay had detrimental effect); Senty-Haugen v. Goodno, 462 F.3d 876, 890 (8th Cir.
2006) ("Senty-Haugen asserts that the state officials delayed treatment . . . . Senty-
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As in Laughlin, Jackson has provided no evidence showing that any delay in
treatment had a detrimental effect. Nonetheless, Jackson argues that an inmate—like
himself—who alleges that the need for medical attention was obvious to a layperson
need not present verifying medical evidence to prove a deliberate-indifference claim
based on a delay in medical treatment. We disagree. See Coleman v. Rahija, 114 F.3d
778 (8th Cir. 1997). In Coleman, we addressed a deliberate-indifference claim by an
inmate who had given premature birth to a child. Id. at 783. Specifically, the inmate
alleged that a prison nurse had violated her "Eighth Amendment right to be free from
cruel and unusual punishment by being deliberately indifferent to [her] complaints
that she was in labor." Id. Following a bench trial, "the district court found that [the
inmate] was experiencing pre-term labor and concluded that her condition was
sufficiently serious to constitute a serious medical need" in light of the inmate's prior
medical history and the symptoms that she exhibited. Id. at 784. We held that the
district court did not clearly err in finding that "[a] layperson would have recognized
the necessity for a doctor's attention at 9:30 p.m." Id. at 785 (citation omitted). But
our analysis did not end there—we also required the inmate "to place verifying
medical evidence in the record to establish the detrimental effect of delay in medical
treatment." Id. at 784 (citing Crowley, 109 F.3d at 502). We then held that the inmate
"presented sufficient 'verifying medical evidence' that [the prison nurse] 'ignored a
critical or escalating situation or that the delay posed a substantial risk of serious
harm' for her claim to succeed." Id. at 785 (quoting Beyerbach, 49 F.3d at 1327).
Haugen has failed to present any evidence that the alleged delays in treatment
worsened his conditions, however, and he has not provided any expert evidence that
the treatment he received was inadequate." (citation omitted)); Gibson v. Weber, 433
F.3d 642, 646 (8th Cir. 2006) ("To avoid summary judgment an inmate alleging that
a delay in treatment constitutes a constitutional deprivation must produce medical
evidence to establish that the delay had a detrimental effect." (citation omitted));
Crowley, 109 F.3d at 502 (holding that objective seriousness of alleged
unconstitutional delay in receiving treatment is measured by reference to effect of
delay).
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Specifically, the inmate "presented expert testimony . . . that the delay in her
treatment posed a substantial risk of serious harm." Id. Unlike the inmate in Coleman,
Jackson has failed to produce any evidence that the alleged delay in his treatment had
a detrimental effect.5
B. Discovery
Jackson next argues that the district court erred in ruling on Riebold's
summary-judgment motion before Jackson could use discovery to obtain relevant
evidence related to his constitutional claims. He asserts that he opposed the summary-
judgment motion on the grounds that he needed more time for discovery.
Federal Rule of Civil Procedure 56(d) provides:
When Facts Are Unavailable to the Nonmovant. If a nonmovant shows
by affidavit or declaration that, for specified reasons, it cannot present
facts essential to justify its opposition, the court may:
(1) defer considering the motion or deny it;
(2) allow time to obtain affidavits or declarations or to take discovery;
or
(3) issue any other appropriate order.
Fed. R. Civ. P. 56(d).6
5
This case does not require us to decide whether a viable deliberate-
indifference claim exists based upon an allegation that the person suffered in great
pain as a result of the delay in medical treatment.
6
"Fed. R. Civ. P. 56(d) provides the procedure for a nonmovant who is unable
to 'present facts essential to justify its opposition.' This was previously governed
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The general rule is that summary judgment is appropriate "only after the
nonmovant has had adequate time for discovery." Toben, 751 F.3d at 894 (quotations
and citations omitted). Pursuant to Rule 56(d), a party opposing summary judgment
may move for a continuance "until adequate discovery has been completed if they
otherwise cannot present facts sufficient to justify their opposition" to a summary-
judgment motion. Id. (quotation and citation omitted). The purpose of this rule is "to
prevent a party from being unfairly thrown out of court by a premature motion for
summary judgment." Id. (quotation and citation omitted). But to obtain a Rule 56(d)
continuance, the nonmovant "must file an affidavit affirmatively demonstrating
. . . how postponement of a ruling on the motion will enable him, by discovery or
other means, to rebut the movant's showing of the absence of a genuine issue of fact."
Id. (alteration in original) (quotations and citations omitted). A district court has
"wide discretion" in ruling on a Rule 56(d) motion. Id. at 895 (citation omitted).
Jackson, as "[t]he party seeking additional discovery," must demonstrate the
following: "(1) that [he] ha[s] set forth in affidavit form the specific facts that [he]
hope[s] to elicit from further discovery, (2) that the facts sought exist, and (3) that
these sought-after facts are essential to resist the summary judgment motion." Id.
(quotations and citations omitted). As to the second element, "[i]t is well settled that
Rule 56([d]) does not condone a fishing expedition where a plaintiff merely hopes to
uncover some possible evidence of [unlawful conduct]." Id. (second and third
alterations in original) (quotations and citations omitted). "Specific facts sought must
be identified. Mere speculation that there is some relevant evidence not yet
discovered will never suffice." Id. (quotation and citation omitted). The movant must
identify "documents or specific facts [that he] believes would contradict" the
opposing side's evidence. Id. at 896 (citation omitted). Thus, the movant must "show
what additional evidence would prove [his] claim meritorious. " Id. (citation omitted).
under Rule 56(f)." Toben v. Bridgestone Retail Operations, LLC, 751 F.3d 888, 894
n.1 (8th Cir. 2014) (citing Fed. R. Civ. P. 56 2010 Amendments).
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Here, Jackson admits that he did not file a formal Rule 56(d) affidavit. But he
argues that he essentially complied with the rule despite not filing a formal affidavit.
In support of his argument, he notes that he filed a motion to stay a ruling on
summary judgment, invoked Rule 56(d), and informed the district court that
discovery was necessary.
Jackson did seek postponement of the district court's ruling on Riebold's
motion for summary judgment under Rule 56(d); but, Jackson's motion failed to
satisfy the second element of a Rule 56(d) motion—"that the facts sought exist." See
id. at 895. In his motion, Jackson argued that he needed additional discovery to obtain
the USMCFP video footage of the night in question to support his version of events
and respond to Riebold's motion for summary judgment. But Riebold produced the
declaration of SIA Anderson in which SIA Anderson avers that his "review of
retained Nice Vision video files . . . reveals that the USMCFP has no video footage
concerning inmate Jackson or th[e] alleged incident from June 28, 2012." On this
record, Jackson has failed to put that fact into dispute. Therefore, the district court did
not err in denying Jackson additional time for discovery.7
C. Amended Complaint
Jackson's final argument is that the district court erroneously denied Jackson
leave to amend his complaint to include a deliberate-indifference claim against
Douglas on futility grounds. First, he asserts that the district court improperly
considered matters outside of Jackson's proposed complaint and ignored the salient
7
Jackson argues for the first time on appeal that the videotape may have been
destroyed in bad faith. We decline to consider this argument. See Werner v. U.S. Dep't
of Interior, Fish & Wildlife Serv., Bureau of Sport Fisheries & Wildlife, 581 F.2d 168,
171 (8th Cir. 1978) (holding that arguments not made "to the district court . . . will
not be considered by this court when raised for the first time on appeal" (citations
omitted)).
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allegations against Douglas. Second, he contends that he stated a cognizable
deliberate-indifference claim against Douglas.
"Generally, we review the denial of leave to amend a complaint under an abuse
of discretion standard; however, 'when the district court bases its denial on the futility
of the proposed amendments, we review the underlying legal conclusions de novo.'"
Crest Constr. II, Inc. v. Doe, 660 F.3d 346, 359 (8th Cir. 2011) (quoting Walker v.
Barrett, 650 F.3d 1198, 1210 (8th Cir. 2011)).
Federal Rule of Civil Procedure 15(a)(2) provides that "a party may amend its
pleading only with the opposing party's written consent or the court's leave. The court
should freely give leave when justice so requires." (Emphasis added.) "But a party is
not entitled to amend a complaint without making a showing that such an amendment
would be able to save an otherwise meritless claim." Plymouth Cnty., Iowa v.
Merscorp, Inc., 774 F.3d 1155, 1160 (8th Cir. 2014) (citing Wisdom v. First Midwest
Bank, 167 F.3d 402, 409 (8th Cir. 1999)). "Futility is a valid basis for denying leave
to amend." United States ex rel. Roop v. Hypoguard USA, Inc., 559 F.3d 818, 822
(8th Cir. 2009). "Duplicative and frivolous claims are futile." Reuter v. Jax Ltd., 711
F.3d 918, 922 (8th Cir. 2013) (citations omitted).
Here, Jackson's original pro se complaint set forth a deliberate-indifference
claim against only Riebold. In his motion for leave to file an amended complaint,
Jackson requested "to join a party, and add a section titled 'Cause of Action Count I'
to specifically state how each defendant violated Plaintiff's Eighth Amendment Right
to be free from cruel and unusual punishment, and exercised deliberate indifference
to his health and safety." In addition to his claim against Riebold, Jackson sought to
raise in his amended complaint a deliberate-indifference claim against Douglas for
"fail[ing] to perform [revision] surgery [on his AV fistula] or hav[ing] [Jackson] sent
out to have it done."
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Jackson's amended complaint stated a duplicative claim to what was already
stated in the original complaint; that is, Jackson's amended complaint reiterated the
same deliberate-indifference claim against Reibold. The duplicative nature of the
claim renders the motion to amend futile. See Reuter, 711 F.3d at 922. Jackson also
sought to join a new party who is not currently a named defendant. Jackson's addition
of a new party with a new claim against that party appears to be an effort to
circumvent Riebold's motion for summary judgment. See, e.g., N. States Power Co.
v. Fed. Transit Admin., 358 F.3d 1050, 1057 (8th Cir. 2004) ("The assertion of this
claim on the eve of summary judgment also weighs against [the plaintiff]." (citing
Overseas Inns S.A.P.A. v. United States, 911 F.2d 1146, 1150–51 (5th Cir. 1990)
(upholding district court's decision to refuse leave to amend complaint when party
sought to add a claim in an effort to avoid summary judgment)). Accordingly, we
affirm the district court's denial of Jackson's motion for leave to amend his complaint
as futile.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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