Dirk Alan Christianson v. McLean County, a Political Subdivision of the State of North Dakota

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 25-2010
___________________________
Dirk Alan Christianson
Plaintiff - Appellant
v.
McLean County, a Political Subdivision of the State of North Dakota; Underwood
Clinic, P.C., doing business as Washburn Clinic; Jerry Kerzmann, individually,
and as Sheriff of McLean County; Kerri Benning, FNP-C, individually, and as
Health Care Authority; Ashley Brossart, RN, individually, and as Contract Nurse;
John Doe, 1-4, individually, and as McLean County Correctional Officers; John
Doe, 5-8, individually, and as McLean County Detention Center Medical Staff
Defendants - Appellees
____________
Appeal from United States District Court
for the District of North Dakota - Western
____________
Submitted: February 10, 2026
Filed: May 28, 2026
____________
Before COLLOTON, Chief Judge, BENTON and KELLY, Circuit Judges.
____________
BENTON, Circuit Judge.
While in custody, Dirk Alan Christianson’s leg became infected and was
amputated above the knee. Invoking 42 U.S.C. § 1983, he sued McLean County, its

-- 1 of 15 --

-2-
Sheriff, and the jail nurse (collectively, the County Defendants); eight unnamed John
Does; and a family nurse practitioner. He also sued Washburn Clinic and the family
nurse practitioner for medical malpractice under North Dakota state law.
The district court1 granted a motion to dismiss the Monell claims and the
medical malpractice claims. The district court then granted summary judgment on
the deliberate indifference claims in favor of the sheriff, the jail nurse, the family
nurse practitioner, and the John Doe defendants. The district court denied an
amendment to the complaint to add specific John Does as defendants. Christianson
appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
Christianson was incarcerated at McLean County Detention Center (MCDC)
from December 22, 2018, to April 6, 2019. While there, he requested medical
attention seven times. Nine times, he received medical care at outside facilities. On
April 2, Christianson showed signs of a high fever. The next day, MCDC staff
reported his fever to jail nurse Ashley A. Brossart. She instructed MCDC staff to
call Washburn Clinic to evaluate him. For his fever, MCDC staff gave Christianson
Tylenol, checked his vitals, and transported him that same day to Washburn Clinic
to see Kerri Benning, a family nurse practitioner.
Before his appointment, Nurse Benning reviewed Christianson’s medical
history and lab work from a previous visit to Washburn Clinic and discussed it with
the nurse that had treated him.
Christianson no longer had a fever when he arrived at the Clinic on April 3.
Nurse Benning continued assessing him for the reported fever. She checked him for
cold and flu symptoms, stomach issues, and asked whether other MCDC inmates
were sick. Nurse Benning ordered urine and flu tests. Both tests were negative. She
checked Christianson’s legs and extremities (he had previously suffered severe
1 The Honorable Daniel L. Hovland, United States District Judge for the
District of North Dakota.

-- 2 of 15 --

-3-
edema). Concluding Christianson could be at the beginning of a viral process, she
ordered him to continue taking Tylenol, rest, hydrate, and to return if his condition
worsened or did not improve. Noting that his blood should be rechecked in five
days, Nurse Benning told him that his blood would be checked sooner if his
symptoms worsened or did not improve. She testified that further lab work was not
necessary at this April 3 visit since he did not have a fever, and the reported fever
began less than 24 hours earlier.
Nurse Benning also addressed Christianson’s lowered blood pressure and
weight loss, adjusting his medications accordingly. Based on her assessment, Nurse
Benning stated he appeared to be improving. Christianson said he was feeling better;
Nurse Benning believed her treatment was reasonable. Her diagnosis was that
Christianson was over diuresed. She ordered his Lasix dosage lowered. She faxed
instructions to MCDC staff, stating that if his condition worsened or did not improve,
he would need follow-up.
Christianson’s fever returned over the next two days. On April 4 and 5, he
received ibuprofen, Tylenol, and a cold pack for his fever. MCDC staff monitored
his temperature, blood pressure, and heart rate. Christianson said he was “doing all
right.” On April 6, he complained of leg pain; however, he attended recreational
time, reportedly acting normally. Later that day, he complained that his knee hurt,
but did not request medical care for it. Even later that afternoon, MCDC staff noticed
Christianson crawling on the floor and babbling in his cell. MCDC staff
immediately requested an ambulance to transport Christianson to the Emergency
Department at Sanford Health.
At Sanford, doctors diagnosed Christianson with severe sepsis with
multisystem organ failure, acute renal failure, left knee cellulitis, possible septic
joint, and encephalopathy. The doctors performed two irrigation and debridement
surgeries on his knee on April 7. On April 8, Christianson was diagnosed with
necrotizing fasciitis in his left leg. His leg was amputated above the knee on April
9.

-- 3 of 15 --

-4-
I.
As a Monell claim under 42 U.S.C. § 1983, Christianson sued McLean County
and Sheriff Jerry R. Kerzmann in his official capacity. The district court dismissed,
ruling the factual allegations contained in the complaint failed to state a claim upon
which relief could be granted. See Fed. R. Civ. P. 12(b)(6). This court reviews de
novo the grant of a motion to dismiss. Mitchell v. Kirchmeier, 28 F.4th 888, 895
(8th Cir. 2022).
Under Monell, McLean County and Sheriff Kerzmann “can be found liable
under § 1983 only where the municipality itself causes the constitutional violation at
issue.” City of Canton v. Harris, 489 U.S. 378, 385 (1989), citing Monell v. Dep’t
of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978). “A plaintiff may
establish municipal liability under § 1983 by proving that his or her constitutional
rights were violated by an ‘action pursuant to official municipal policy’ or
misconduct so pervasive among non-policymaking employees of the municipality
‘as to constitute a “custom or usage” with the force of law.’” Ware v. Jackson Cnty.,
150 F.3d 873, 880 (8th Cir. 1998), quoting Monell, 436 U.S. at 691.
Christianson does not argue that an official policy violated his rights. Rather,
he focuses on the absence of policies allowing misconduct so pervasive as to
constitute a “custom or usage” with the force of law. He must also allege sufficient
facts showing that this custom or usage violated his constitutional rights. Mitchell
v. St. Louis Cnty., 160 F. 4th 950, 964 (8th Cir. 2025). “[Christianson] must allege:
(1) The existence of a continuing, widespread, persistent pattern of unconstitutional
misconduct by [McLean County and Sheriff Kerzmann]; (2) Deliberate indifference
to or tacit authorization of such conduct by [McLean County’s] policymaking
officials after notice to the officials of that misconduct; and (3) That [Christianson]
was injured by acts pursuant to [McLean County’s] custom.” Id.
The entirety of the facts Christianson alleges in his complaint about his Monell
claim are:

-- 4 of 15 --

-5-
¶ 91 Kerzmann is a “policymaker” for Monell liability purposes.
¶ 92 Before April 9, 2019, McLean County and Kerzmann, with
deliberate indifference to the rights of inmates at the MCDC, initiated,
tolerated, permitted, failed to correct, promoted, and ratified a custom,
pattern, and practice on the part of its correctional officers and medical
staff of failing to provide for the health, safety, and general wellbeing
of inmates, including providing proper, basic medical care, monitoring,
and protection from medical issues.
None of these allegations state facts supporting an inference of an unofficial
custom by McLean County or Sheriff Kerzmann that violated his constitutional
rights. He provides no specifics of a continuing, widespread, persistent pattern of
unconstitutional misconduct by McLean County or by Sheriff Kerzmann. Nor does
he provide any facts showing that McLean County or Sheriff Kerzmann ever
received notice of the alleged misconduct.
In Mitchell, the plaintiff made sweeping allegations, without factual support,
that a county had inadequate policies and unconstitutional customs. These
allegations amounted “to ‘nothing more than a formulaic recitation of the elements’
that cannot support a plausible claim.” Id., quoting Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009). Christianson argues that his complaint gives “broad allegations
sufficient to meet the standards of 12(b)(6).” To the contrary, these broad allegations
do not state a specific municipal policy of McLean County or Sheriff Kerzmann that
violated Christianson’s constitutional rights. Nor do the broad allegations describe
“misconduct so pervasive among non-policymaking employees of the municipality
as to constitute a “custom or usage.” Ware, 150 F.3d at 880.
Because Christianson’s complaint does not state a plausible claim, the district
court properly dismissed the Monell claim against McLean County and Sheriff
Kerzmann.

-- 5 of 15 --

-6-
II.
Christianson appeals the summary judgment to Nurse Brossart, Sheriff
Kerzmann, and Family Nurse Practitioner Benning in their individual capacities; and
to unidentified County Correctional Officers (John Does 1-4) and detention center
medical staff (John Does 5-8). “This court reviews de novo a grant of summary
judgment.” Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011)
(en banc). Summary judgment shall be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Smith v. Lisenbe, 73 F.4th 596, 600 (8th Cir. 2023), citing Fed.
R. Civ. P. 56(a). This court also reviews de novo a finding that defendants are
entitled to qualified immunity. See Jones v. Faulkner Cnty., 131 F.4th 869, 874
(8th Cir. 2025).
Christianson alleges that Sheriff Kerzmann, Nurse Brossart, and Nurse
Benning violated his Fourteenth Amendment rights by being deliberately indifferent
to his serious medical needs, which proximately caused an infection requiring
amputation of his leg. As a pretrial detainee, Christianson is entitled to “at least the
same protections that convicted prisoners receive under the Eighth Amendment.”
Smith, 73 F.4th at 600.
The Eighth Amendment prohibits “the infliction of cruel and unusual
punishments, which in this context means a state official cannot be deliberately
indifferent to a prisoner’s serious medical needs.” Id., citing Estelle v. Gamble, 429
U.S. 97, 104 (1976). “To prevail on a deliberate-indifference claim, the plaintiff
must show (1) an objectively serious medical need, and (2) that the defendant knew
of and disregarded that need.” Dantzler v. Baldwin, 133 F.4th 833, 843 (8th Cir.
2025). “To demonstrate that a defendant actually knew of, but deliberately
disregarded, a serious medical need, the plaintiff must establish a mental state akin
to criminal recklessness.” Vaughn v. Gray, 557 F.3d 904, 908 (8th Cir. 2009). “This
onerous standard requires a showing more than negligence, more even than gross
negligence, but less than purposefully causing or knowingly bringing about a

-- 6 of 15 --

-7-
substantial risk of serious harm to the detainee.” Vogt as Tr. For Heirs of Vogt v.
MEnD Corr. Care Inc., 113 F.4th 793, 797 (8th Cir. 2024). “Liability for damages
for a federal constitutional tort is personal, so each defendant’s conduct must be
independently assessed. Section 1983 does not sanction tort by association.” Smith
v. City of Minneapolis, 754 F.3d 541, 547 (8th Cir. 2014).
To maintain his claims against Sheriff Kerzmann, Nurse Brossart, and Nurse
Benning, Christianson must provide evidence that an objectively serious medical
need existed, and that they each knew of and disregarded that need. Dantzler, 133
F.4th at 843.
Christianson mainly argues that Sheriff Kerzmann and Nurse Brossart delayed
the care he required, causing his leg to be amputated. When an inmate alleges that
a delay in medical treatment rises to the level of a constitutional violation, the
defendant’s acts must be “so inappropriate as to evidence intentional maltreatment
or a refusal to provide essential care.” Dulany v. Carnahan, 132 F.3d 1234, 1240–
41 (8th Cir. 1997).
As for Sheriff Kerzmann, Christianson’s expert concludes, without stating
specific facts, that Sheriff Kerzmann did not protect Christianson. However,
Christianson did not controvert Sheriff Kerzmann’s sworn statement that he “had no
knowledge of any serious medical need of Dirk Christianson at any time during his
incarceration at the McLean County Detention Center from December 2018 through
April 2019.” Even if Christianson has shown an “objectively serious medical need,”
he has failed to show that Sheriff Kerzmann “knew of and disregarded the need.”
Dantzler, 133 F.4th at 843. Christianson’s delay-of-care argument against Sheriff
Kerzmann fails for the same reason. Christianson did not show any “intentional
maltreatment or refusal to provide essential care” by Sheriff Kerzmann. Dulaney,
132 F.3d at 1241. The district court properly granted summary judgment to Sheriff
Kerzmann in his individual capacity.

-- 7 of 15 --

-8-
While Christianson was incarcerated at MCDC, Nurse Brossart was under
contract to provide on-call nursing services to MCDC inmates. On April 3,
Correctional Officer Anna Six told Nurse Brossart that Christianson had a fever the
day before. Nurse Brossart instructed CO Six to take Christianson’s vitals.
Informed of his vitals, Nurse Brossart told CO Six to call Washburn Clinic for an
evaluation. Christianson was transported to the Clinic.
Christianson has not shown that Nurse Brossart “knew of and disregarded”
his serious medical need. Her acts, which included ordering vitals and immediately
referring him to Washburn for a closer evaluation, do not disregard Christianson’s
serious medical need. Nurse Brossart made a reasoned medical decision to refer
Christianson to a higher level of medical care than she could provide on April 3.
Christianson also argues that Nurse Brossart is liable for delaying the care he
ultimately received for his leg injury. Nurse Brossart stated she “had no knowledge
of any serious medical need Christianson may have had following my call with CO
Six on the morning of April 3, 2019, until after he was treated at Sanford Hospital
in Bismark.” Christianson’s expert stated that the jail record does not show anyone
notifying Nurse Brossart of Christianson’s worsening situation. Nurse Brossart, who
did not know about Christianson’s medical status after April 3, did not act “so
inappropriate as to evidence intentional maltreatment or a refusal to provide essential
care.” Id. Because Nurse Brossart did not deny Christianson his constitutional
rights, the district court properly granted summary judgment to her.
Christianson’s claim against Nurse Benning in her individual capacity under
42 U.S.C. § 1983 also alleges deliberate indifference. He argues that Nurse Benning
should have suspected infection and ordered blood tests or labs at his April 3
appointment. He adds that she should have followed up after this appointment.
Nurse Benning testified that she believed that further lab work was not medically
necessary. When she saw Christianson, he did not have a fever. He was stable and
“appeared to be improving.” Nurse Benning considered Christianson’s complaints
of headache, increase in urination, low blood pressure, medical history, vital signs,

-- 8 of 15 --

-9-
weight loss, negative flu and urine tests, and her assessment of him. Nurse Benning
diagnosed Christianson as being over diuresed, ordering his Lasix dosage lowered.
She instructed Christianson and MCDC staff that he would need further workup if
his condition worsened or did not improve. By testing, treating, and diagnosing
Christianson, Nurse Benning did not disregard his medical needs. Christianson does
not controvert Nurse Benning’s testimony. In fact, his own expert stated that Nurse
Benning gave “clear instructions … to bring him back for evaluation, but these were
unfortunately overlooked.” An “exercise of professional judgment, even if
negligent, falls well short of deliberate indifference.” A.H. v. St. Louis Cnty., 891
F.3d 721, 727 (8th Cir. 2018).
Christianson argues that Nurse Benning failed to diagnose and properly treat
his infection, causing “it to go from an infection to sepsis and ultimately necrotizing
fasciitis which cased his leg amputation.” In Allard v. Baldwin, 779 F.3d 768, 771
(8th Cir. 2015), Allard alleged a physician should have diagnosed him with bowel
obstruction. Instead, he was diagnosed with “constipation and given extensive
treatment for that diagnosis.” Id. As a result, Allard suffered bowel perforation,
causing an emergency surgery and the installation of a colostomy bag for 10 months.
While acknowledging the misdiagnosis, this court stated that “while Allard may
have established a question of material fact sufficient for a negligent malpractice
case, such evidence does not show deliberate indifference.” Id. at 772. “[A]
misdiagnosis does not rise to the level of deliberate indifference.” Id. Nurse
Benning’s alleged misdiagnosis that Christianson was suffering from diuresis, not
sepsis, does not constitute deliberate indifference. The district court properly
granted summary judgment to Nurse Benning.
III.
Nearly four years after filing his original complaint, Christianson filed a
motion for leave to amend it, to add ten correctional officers (the John Doe
Defendants) to the complaint. The district court denied this motion and granted
summary judgment on all claims against them. Christianson appeals, arguing the

-- 9 of 15 --

-10-
district court erred in refusing an amendment to add the John Doe Defendants, and
then erred in granting summary judgment to them. This court “review[s] the district
court’s decision to grant or deny leave to amend for abuse of discretion.” Hammer
v. City of Osage Beach, 318 F.3d 832, 844 (8th Cir. 2003). This court reviews de
novo a grant of summary judgment. Heisler v. Nationwide Mut. Ins. Co., 931 F.3d
786, 795 (8th Cir. 2019).
“A district court should freely give leave to a party to amend its pleadings
when justice so requires, Fed.R.Civ.P. 15(a); however, it may properly deny a
party’s motion to amend its complaint when such amendment would unduly
prejudice the non-moving party or would be futile.” Popoalii v. Correctional Med.
Servs., 512 F.3d 488, 497 (8th Cir. 2008).
On April 1, 2021, Christianson sued unidentified McLean County correctional
officers (John Does 1-4) and detention center medical staff (John Does 5-8) for civil
rights violations. The deadline for amendments was August 15, 2022. The
discovery deadline was April 1, 2024, and the dispositive motions deadline was
October 11, 2024. After all these deadlines, Christianson moved to amend his
complaint on January 16, 2025.
Christianson argues that his untimely request was due to the defendants’
failure to properly identify the individuals who would be John Doe defendants. The
district court disagreed. It noted that every individual Christianson sought to add
was disclosed to him four months before the deadline for amendments. He had
deposed seven of the John Doe defendants. Christianson’s failure to timely seek an
amendment could not be attributed to the defendants. Further, this untimely motion
to amend was filed after the other defendants moved for summary judgment.
Christianson not only sought to amend to add the identities of the John Doe
Defendants, he also sought to alter the facts for his claims. The district court ruled
that an amendment would prejudice the defendants. See Hammer, 318 F.3d at 844–
45 (upholding the denial of an amendment “nearly fifteen months after the filing of
his original complaint…[A]fter discovery had closed and the [defendant] had moved

-- 10 of 15 --

-11-
for summary judgment”); Williams v. Little Rock Mun. Water Works, 21 F.3d 218,
224–25 (8th Cir. 1994) (upholding the denial of an amendment “some fourteen
months after filing the original complaint, [and] six days after the discovery cutoff
date.”).
Christianson knew of all the John Doe Defendants’ identities for about 32
months before moving to add them as defendants. He filed his motion over 28
months after the deadline for amendments. Allowing Christianson to amend his
complaint would have resulted in undue prejudice to all the defendants. See id. at
225. The district court did not abuse its discretion by denying Christianson’s motion
to amend his complaint.
Christianson also argues that the district court had no jurisdiction to rule on
summary judgment against the John Doe defendants. To the contrary, dismissal of
John Doe defendants at the summary judgment stage is appropriate where the
plaintiff did not identify or serve them. See Phelps v. U.S. Fed. Gov., 15 F.3d 735,
739 (8th Cir. 1994) (dismissal of unknown defendants was proper at the summary
judgment stage); Cantrell v. Huckabee, 433 Fed. Appx. 488, 490 (8th Cir. 2011)
(during summary judgment stage, “the district court did not abuse its discretion in
dismissing the John Doe defendant, since Cantrell never identified him, much less
served him, during the two years between the filing of his complaint and the district
court’s order dismissing John Doe”). While ruling on summary judgment, the
district court had jurisdiction to dismiss the John Doe defendants.
IV.
Christianson sued Washburn Clinic and the family nurse practitioner for
medical malpractice under North Dakota state law. The district court dismissed this
claim, ruling he failed to timely serve an expert affidavit as required under N.D.C.C.
§ 28-01-46. Christianson appeals. This court reviews de novo a motion to dismiss.
Mitchell v. St. Louis Cnty., 160 F. 4th at 956.

-- 11 of 15 --

-12-
Washburn Clinic and Nurse Benning moved to dismiss the state medical
malpractice claim against them because a medical expert’s affidavit was not timely
served. See N.D.C.C. § 28-01-46 (requiring service of “an affidavit containing an
admissible expert opinion to support a prima facie case of professional negligence
within three months of the commencement of the action.”). “The court may set a
later date for serving the affidavit for good cause shown by the plaintiff if the
plaintiff’s request for an extension of time is made before the expiration of the three-
month period following commencement of the action.” Id. The district court
originally granted Christianson an extension of time to file the affidavit; however,
the district court later reversed itself, ruling that the expert’s affidavit was not timely
filed and dismissing the claim.
Christianson appeals this dismissal, arguing that he timely served his expert
affidavit in accordance with the North Dakota statute. He argues that although his
complaint was filed on April 1, 2021, he also delivered a Notice of Lawsuit and a
Request to Waive Service of Summons for the Washburn Clinic and Nurse Benning
on April 7. Attorneys for Washburn Clinic and Nurse Benning signed the waiver on
April 8. Christianson filed the waiver with the district court on April 30. He argues
that under the statute, the “commencement of the action” should be April 30, giving
him three months to serve the requisite affidavit. Because he served the affidavit on
July 6 (within three months of either April 8 or April 30), Christianson concludes
that the affidavit was timely served in accordance with the statute. Washburn Clinic
and Nurse Benning counter that the “commencement of the action” was April 1,
when he filed his complaint.
“A plaintiff who asserts a medical malpractice claim must file an expert
affidavit with the court within three months of filing the suit, unless good cause is
shown.” Weasel v. St. Alexius Medical Ctr., 230 F.3d 348, 350 (8th Cir. 2000)
(applying N.D.C.C. § 28-01-46 in a diversity case) (emphasis added), followed
without addressing the italicized phrase, Bride v. Trinity Hosp., 927 N.W.2d 416,
420 (N.D. 2019). The filing of the complaint begins the three-month deadline. See
Weasel, 230 F.3d at 350, 351 n.3; LaFramboise v. Thompson, 329 F.Supp.2d 1054,

-- 12 of 15 --

-13-
1057 (D.N.D. 2004) (ruling that “when the action was filed” begins the time to file
the requisite affidavit), aff’d, 439 F.3d 792 (8th Cir. 2006).
Christianson’s action commenced on April 1, 2021, when he filed suit in
federal court. The three-month period ended July 1, 2021, for service of an expert
affidavit (or an extension to do so). The district court correctly ruled that
Christianson’s affidavit was not timely served and dismissed Christianson’s state
medical negligence claim.
While this appeal was pending, the Supreme Court decided Berk v. Choy, 607
U.S. 187 (2026), relying mainly on Shady Grove Orthopedic Associates, P.A. v.
Allstate Insurance Co., 559 U.S. 393, 398 (2010). The Court voided a state law
requiring an expert affidavit to accompany a medical malpractice complaint, holding
it conflicted with Fed. R. Civ. P. 8. Berk, 607 U.S. at 195-96. Christianson did not
raise this issue at the district court or before submission of this case. He has at least
forfeited the right to rely on Berk. “In our adversarial system of adjudication, we
follow the principle of party presentation.” Clark v. Sweeney, 607 U.S. 7, 9 (2025),
quoting United States v. Sineneng-Smith, 590 U.S. 371, 375 (2020). “The parties
‘frame the issues for decision’ while the court serves as ‘neutral arbiter of matters
the parties present.’” Id., quoting Greenlaw v. United States, 554 U.S. 237, 243
(2008).
In fact, at oral argument, Christianson stated:
. . . I sort of actually elected not to bring in Shady Grove and those
arguments. I’m not immune to that knowledge. . . . I felt that this case
was much more clear on when the case was commenced under North
Dakota law and as a consequence went down that route.
“The principle of party presentation counsels against adopting theories of a
plaintiff’s case that he does not advance, much less one that he expressly disclaims.”
Ivey v. Audrain Cnty., 968 F.3d 845, 851 (8th Cir. 2020). Christianson has waived
any theory relying on Berk v Choy.

-- 13 of 15 --

-14-
* * * * * * *
The judgment is affirmed.
KELLY, Circuit Judge, concurring in part and dissenting in part.
I concur except as to the Court’s decision to affirm the grant of summary
judgment in favor of the John Doe defendants in Part III and to affirm dismissal of
the state medical malpractice claim in Part IV.
I agree that the district court did not abuse its discretion when it denied
Christianson leave to amend. But when a plaintiff fails to timely identify John Doe
defendants, the appropriate remedy is dismissal without prejudice—even if the case
has otherwise progressed to the summary judgment stage. In Cantrell, for example,
we affirmed dismissal without prejudice2 of claims against—not summary judgment
for—a John Doe defendant because the plaintiff “never identified him, much less
served him[.]” Cantrell, 433 F. App’x at 490 (citing Fed. R. Civ. P. 4(m)). This was
so even though we also affirmed summary judgment in favor of the named
defendant. Id. Similarly, in Phelps, we held “that the district court did not err by
dismissing the ‘unknown defendants’ without prejudice[.]” Phelps, 15 F.3d at 739.
This approach is consistent with Fed. R. Civ. P. 4(m) (“If a defendant is not served
within 90 days after the complaint is filed, the court . . . must dismiss the action
without prejudice[,]” absent a “show[ing] of good cause for the failure[.]”). Here,
the district court granted summary judgment to the Doe defendants not on the merits,
but because Christianson did not timely identify them. Under these circumstances, I
would vacate the grant of summary judgment as to the Doe defendants and remand
for the district court to dismiss the claims without prejudice instead.3
2 Cantrell v. Huckabee, No. 5:05CV00157-JMM/BD, 2007 WL 1520991, at
*1 (E.D. Ark. May 21, 2007) (specifying the dismissal was “without prejudice”).
3 Christianson filed a second case, based on the same allegations, against the
John Doe defendants—but this time, he identified them. See Christianson v.

-- 14 of 15 --

-15-
As to Christianson’s state medical malpractice claim, I agree that Christianson
failed to raise any argument relying on Shady Grove. But I disagree that Christianson
forfeited any argument relying on Berk, which was decided after the parties
submitted appellate briefing but before the appeal was argued. See Berk, 607 U.S.
187 (decided Jan. 20, 2026). During oral arguments, we asked Christianson’s
attorney whether he was familiar with Berk. He replied, “No, I am not.” Christianson
later submitted a letter pursuant to Rule 28(j) stating, “Christianson has not waived
Berk’s protections. At oral argument, Appellant’s counsel was unaware of the newly
issued Berk opinion.” See Fed. R. App. P. 28(j). Christianson went on to make
various legal arguments analogizing his case to Berk and explaining why the party
presentation principle should not here apply. I would remand to the district court to
consider Berk’s impact on Christianson’s medical malpractice claim in the first
instance.
______________________________
Wicklander, No. 1:25-CV-072, 2026 WL 237605 (D.N.D. Jan. 29, 2026). That case
was dismissed with prejudice on res judicata grounds—based on the grant of
summary judgment in this case. Id.

-- 15 of 15 --