## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 11-3811

___________ Jason Edward Johnson, *
* Appellant, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Donna Cook, Medical Director; Mary * Herrington, LPN; Frank Filippelli, MD; * [UNPUBLISHED] Derek Brown, P.A. Student; Terry * Mapes, Warden; Jill Durski, Deputy * Warden; Rhonda Lanser, LPN; Kay * Kieinschrodt, LPN; Kim Richardson, * C/O, *
* Appellees. *

___________ Submitted: June 20, 2012 Filed: July 16, 2012

___________ Before MURPHY, ARNOLD, and SHEPHERD, Circuit Judges.

___________ PER CURIAM.Iowa inmate Jason Johnson appeals the di strict court’s preservice dismissal of his 42 U.S.C. § 1983 action, and the court’s subsequent denial of postjudgment relief. 1 We affirm in part, reverse in part, and remand with directions.

In his complaint, Johnson claimed th at defendants violated his Eighth Amendment rights by exhibiting deliberate i ndifference to his serious medical need for attention to a fractured wrist. The district court dismissed the complaint with prejudice under 28 U.S.C. § 1915A(b), finding th at it was frivolous and failed to state a claim. The court entered judgment on November 8, 2011. On November 18, Johnson filed several documents , attaching new materials and making new allegations. Construing the filings as a single motion for reconsideration, the district court denied relief. This appeal followed.

After careful review, see Cooper v. Schriro , 189 F.3d 781, 783 (8th Cir. 1999) (per curiam), we conclude that the co mplaint stated a cl aim against Dr. Frank Filippelli. Johnson alleged that Dr. Fili ppelli examined him on August 10 and ordered x-rays. The x-rays, taken on August 12, revealed a possible fractured wrist, but Johnson did not receive further treatment until September 16. At that point, Iowa CityUniversity medical personnel measured Johnson’s range of movement, took more xrays, and placed his arm in a cast. Liberally construed, the complaint alleged that Dr. Filippelli knew Johnson might have a fractured wrist, but failed to follow up on his condition for several weeks, after which it was confirmed that a fracture had occurred and needed treatment. Johnson also allege d that, while he was awaiting treatment at

1 The notice of appeal designates only the dismissal order, but Johnson’s appellate submissions show that he is ch allenging both the dismissal and the denial of postjudgment relief. We re view both matters, because the notice of appeal is timely as to both, and no prejudice to any adve rse party will result in this preservicedismissal case. SeeHaberthur v. City of Raymore , 119 F.3d 720, 722 (8th Cir. 2009); Bogart v. Chapell , 396 F.3d 548 (4th Cir. 2005).

-2-Iowa City University, he suffered pain. These facts sufficiently stated a deliberateindifference claim against Dr. Filippelli. See Farmer v. Brennan , 511 U.S. 825, 837 (1994) (Eighth Amendment claim for deliberat e indifference to serious medical needs requires plaintiff to allege that defendant knew of and disregarded excessive risk to plaintiff’s health).

Turning to Johnson’s postjudgment submissions, we note that he actually submitted three separate motions: a mo tion for reconsideration, a motion for appointment of counsel, and a motion for leave to amend his complaint. When the district court denied the motion for reconsideration, it also implicitly denied the motions for counsel and leave to amend. Cf. MSK EyEs Ltd. v. Wells Fargo Bank , 546 F.3d 533, 545 (8th Cir. 2008) (it is not abuse of discretion fo r district court to implicitly deny motion for leave to amend by entering final judgment inconsistent with relief sought in motion).

As to the merits of these motions, we conclude that the court did not abuse its discretion in denying the motion for reconsideration, seeUnited States v. Metro. St. Louis Sewer Dist. , 440 F.3d 930, 933 (8th Cir. 2006) (s tandard of review); or the motion for appointment of counsel, see Plummer v. Grimes , 87 F.3d 1032, 1033 (8th Cir. 1996) (standard of review). However, we find that the court abused its discretion in denying the motion to amend. Johnson file d his motion within ten days of the entry of final judgment; no prejudice would have resulted from granting the motion, as defendants had not been served; Johnson ha d not filed any prior motions to amend; and the allegations in his pr oposed amended complaint appear not to have been futile as to some defendants. See MSK EyEs Ltd. , 546 F.3d at 545 (reviewing implicit denial of motion to amend fo r abuse of discretion); cf. Baptist Health v. Smith , 477 F.3d 540, 544 (8th Cir. 2007) (describing reasons justifying denial of motion to amend, including undue delay, bad faith, dilatory motive, repeated failure to cure deficiencies with prior amendment, undueprejudice to non-moving party, or futility).

-3-We therefore (1) vacate the dismissal of Johnson’s claims against Dr. Filippelli; (2) conclude that the district court abused its discretion in denying leave to amend, and direct the court to allow Johnson to ame nd his complaint on remand; and (3) affirm in all other respects, except that we modify the dismissa l of the remaining defendants to be without prejudice. SeeWilliams v. Dep’t of Corr. , 208 F.3d 681 (8th Cir. 2000).

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