United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-4287

___________

Floyd L. Roberson, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Hayti Police Department; Paul Sheckell, *

Lt.; Chris Riggs, *

*

Appellees. *

___________

Submitted: December 11, 2000

Filed: March 9, 2001

___________

Before WOLLMAN, Chief Judge, RICHARD S. ARNOLD, and HANSEN,

Circuit Judges.

___________

WOLLMAN, Chief Judge.

Floyd Roberson was shot by an officer of the Hayti, Missouri, police department

and filed suit in federal court pursuant to 42 U.S.C. § 1983. The district court granted

summary judgment against Roberson on his claim against one officer, denied him leave

to amend his claim to include the city as a defendant, and entered judgment on a jury

verdict in favor of another officer. Roberson appeals. We affirm in part and reverse

and remand in part.
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I.

Roberson, a black man, was shot twice in the hip and buttock on the evening of

August 2, 1994, by an officer of the Hayti Police Department. On June 25, 1996, while

incarcerated on a conviction unrelated to the instant case, Roberson filed a pro se

complaint alleging that the shooting constituted an excessive use of force and deprived

him of his civil rights. Roberson’s complaint alleges that Lieutenant Paul Sheckell and

his partner pursued him in a high speed chase, and that when he got out of his car and

fled on foot, he was shot from behind by Sheckell. The complaint asserts claims

against Sheckell and the police department, states “I declare under penalty of perjury

that the foregoing is true and correct,” and is dated and signed by Roberson. Roberson

also requested the appointment of counsel. Roberson also filed his first amended

complaint outlining the incident in greater detail and adding as a defendant Officer

Chris Riggs, also of the Hayti Police Department, who is identified as Sheckell’s

partner. Roberson asserted claims against both officers in their official and individual

capacities.

On March 3, 1997, the district court dismissed the claim against the Hayti Police

Department because it determined that the department was not an entity capable of

being sued under § 1983. Roberson was granted leave to amend his complaint to

include the city of Hayti as a defendant. Shortly thereafter, he renewed his request for

appointment of counsel. Sheckell submitted an affidavit stating that he was “not on

duty” when Roberson was shot and moved for summary judgment as to the claim

against him. Riggs also moved for summary judgment, submitting an affidavit to the

effect that he was the officer who shot Roberson after Roberson had turned toward him

and made a movement that suggested he was armed. On February 4, 1998, the court,

citing Roberson’s failure to respond to the summary judgment motions, granted

summary judgment in favor of Sheckell and in favor of Riggs in his official capacity.

In the same order, the court granted Roberson’s request for counsel and prohibited him

from amending his complaint to include claims against the city as a defendant because
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of Roberson’s failure to file an amended complaint during the intervening eleven

months.

The case proceeded to trial on October 12, 1999, on Roberson’s remaining claim

against Riggs in his individual capacity. Selected from the roles of registered voters,

the venire panel was composed solely of white men and women, as was the jury that

was empaneled. The jury returned a verdict in favor of Riggs. 

II.

Roberson appeals the district court’s decision dismissing the claims against

Sheckell and against Riggs in his official capacity, its refusal to grant him leave to

amend his complaint to add the city as a defendant, and its decision overruling his

objection to the racial composition of the jury. We reverse the court’s dismissal of the

claims against Sheckell in his individual capacity and its denial of leave to amend the

complaint, and affirm its determinations on the jury issue and the dismissal of the

claims against the officers in their official capacities.

A.

We first consider Roberson’s contention that the district court improperly

granted summary judgment against him. Roberson urges us to adopt a rule requiring

that, upon filing of summary judgment motions, district courts must provide pro se

prisoner litigants with notice that, if they fail respond with an affidavit or other evidence

within ten days, an adverse judgment may be entered against them. See Anderson v.

Angelone, 86 F.3d 932, 934-45 (9th Cir. 1996) (summarizing notice rule); Lewis v.

Faulkner, 689 F.2d 100, 102 (7th Cir. 1982) (creating notice requirement); Roseboro

v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (adopting D.C. Circuit notice rule);

Hudson v. Hardy, 412 F.2d 1091, 1094 (D.C. Cir. 1968) (creating notice requirement);

Moore v. Florida, 703 F.2d 516, 519 (11th Cir. 1983) (citing Fourth, Seventh, and D.C.
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Circuit rules). We conclude that because Roberson’s verified complaint was sufficient

to create a genuine issue of material fact as to Sheckell’s participation in the shooting,

summary judgment was inappropriate against Sheckell in his individual capacity. We

therefore do not reach the notice issue.

“We review a grant of summary judgment de novo, applying the same standard

as the district court: whether the record, viewed in a light most favorable to the

non-moving party, shows that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law.” Rabushka v. Crane Co., 122

F.3d 559, 562 (8th Cir. 1997). 

A plaintiff’s verified complaint is the equivalent of an affidavit for purposes of

summary judgment, Watson v. Jones, 980 F.2d 1165, 1166 (8th Cir. 1992), and a

complaint signed and dated as true under penalty of perjury satisfies the requirements

of a verified complaint, 28 U.S.C. § 1746. Although a party may not generally rest on

his pleadings to create a fact issue sufficient to survive summary judgment, the facts

alleged in a verified complaint need not be repeated in a responsive affidavit in order

to survive a summary judgment motion. Williams v. Adams, 935 F.2d 960, 961 (8th

Cir. 1991). 

Roberson’s initial complaint was signed and dated and averred “under penalty

of perjury” that its contents were true. The complaint stated that Sheckell participated

in the chase and fired the shots that hit Roberson. Sheckell’s motion for summary

judgment was based on his contention, supported by affidavit, that “Sheckell was not

on duty at the time of the events alleged in Plaintiff’s complaint and had no active role

in Plaintiff’s arrest.” The court cited Sheckell’s affidavit, and concluded that “Sheckell

has demonstrated a lack of genuine issues of material fact, and due to plaintiff’s failure

to respond, defendant is entitled to judgment as a matter of law.” In reaching this

conclusion, the court failed to accord the verified complaint its proper weight. Treating

the verified complaint as an affidavit for summary judgment purposes, we conclude that
1Appellees contend that the denial of leave is properly reviewed under the stricter

standards for enforcement of scheduling orders under Rule 16. We disagree, both

because the court’s language suggests that it was exercising its Rule 15(a) authority by

placing a condition on its grant of leave, and because the court’s consideration of

Roberson’s second amended complaint on other issues is inconsistent with the view

that it was enforcing a scheduling order requiring pleadings to be finalized by a certain

date.

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Roberson’s statements in the complaint were sufficient to create a genuine fact issue

sufficient to survive the summary judgment motion. Even if we accept that Sheckell’s

statements that he was “not on duty” when the shooting took place necessarily support

the proposition that he was not involved, Roberson’s assertion that Sheckell was the

officer who shot him stands in direct contradiction and creates a factual dispute as to

Sheckell’s participation. We therefore reverse the dismissal of the claim against

Sheckell in his individual capacity.

Roberson also appeals the court’s dismissal of his claims against Sheckell and

Riggs in their official capacities. State officials in their official capacity are not persons

amenable to suit under § 1983. Hafer v. Melo, 502 U.S. 21, 26 (1991). Thus, Sheckell

and Riggs were entitled to judgment as a matter of law on these claims, and any failure

in notice to Roberson was at most harmless error. See United States v. McCrady, 774

F.2d 868, 874 (8th Cir. 1985). We affirm the judgment dismissing those claims.

B.

Roberson’s next contention is that the district court erred in prohibiting him from

amending his complaint to include the city of Hayti as a defendant. We review an order

denying leave to amend a complaint for abuse of discretion. In re Milk Products

Antitrust Litigation, 195 F.3d 430, 437 (8th Cir. 1999). Under the liberal amendment

policy of Federal Rule of Civil Procedure 15(a)1, a district court’s denial of leave to

amend pleadings is appropriate only in those limited circumstances in which undue
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delay, bad faith on the part of the moving party, futility of the amendment, or unfair

prejudice to the non-moving party can be demonstrated. Foman v. Davis, 371 U.S.

178, 182 (1962); Sanders v. Clemco Indus., 823 F.2d 214, 216 (8th Cir. 1987). Delay

alone is not a reason in and of itself to deny leave to amend; the delay must have

resulted in unfair prejudice to the party opposing amendment. Sanders, 823 F.2d at

217. “The burden of proof of prejudice is on the party opposing the amendment.” Id.

In its March 3, 1997, order dismissing the claims against the police department,

the district court initially granted Roberson’s request for leave to amend his complaint

to add the city as a defendant. The court specifically required him, however, to file an

amended complaint containing his claims against the city. In its February 4, 1998,

order appointing counsel for Roberson, the district court stated: “On March 3, 1997,

the court granted plaintiff’s motion for leave to add the City of Hayti as a defendant in

an amended complaint. Plaintiff’s failure to do so has foreclosed his ability to do so

at this late date.” On March 13, 1998, Roberson’s counsel filed a second amended

complaint containing Roberson’s claims against the city and his amended pleadings

against Riggs. The district court did not allow the claim against the city to be submitted

to the jury, however, and the case proceeded solely on the claim against Riggs.

We conclude that the district court erred in denying Roberson leave to file an

amended complaint adding the city as a defendant. The district court’s orders and

rulings do not indicate that the court believed that the city would have been prejudiced

by the amendment of the complaint, nor does our review of the record suggest that

prejudice was likely. Our cases do not support the proposition that an eleven-month

delay is prejudicial per se. E.g. Sanders, 823 F.2d at 217 (holding some showing of

prejudice from delay required); United States v. Vorachek, 563 F.2d 884, 885 (8th Cir.

1977) (eleven-month delay in filing amended complaint not sufficient grounds for

denying leave to amend absent any prejudicial effect). We find unpersuasive the city’s

assertion that the delay somehow prejudiced its ability to prepare its defense. The city

would have had more than a year and a half to prepare a defense. Moreover, it had
2Although Roberson’s arguments seem to assume that voter registration alone

was used to select the venire pool, he does not argue that the district court deviated

from its jury selection plan. If Roberson’s statistical analysis of the district is correct,

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notice from the court’s March 3, 1997, order, as well as from Roberson’s initial

complaint against the police department, that Roberson intended to bring claims against

it, and the claims set forth in the second amended complaint are typical of those alleged

in a section 1983 action. Finally, the bulk of the evidence the city would have required

to defend itself against Roberson’s claims that its conduct contributed to his shooting

was already in the city’s possession. Accordingly, we conclude that the district court

erred in denying leave to amend.

C.

Roberson’s contention is that the composition of his jury panel violated the fair

cross section requirement for jury selection. In order to show a prima facie case of

violation of the fair cross section requirement, Roberson must show (1) that blacks are

a distinctive group in the community, (2) that the representation of blacks in the jury

pools was not fair and reasonable when considered with the number of blacks in the

community, and (3) that the under-representation is due to systematic exclusion of

blacks in the jury selection process. Floyd v. Garrison, 996 F.2d 947, 949 (8th Cir.

1993). 

The district selection plan for the Eastern District of Missouri calls for the

selection of jurors from voter registration roles, and, in counties where more than five

percent of the population is black, from the roles of licensed drivers as well. Roberson

does not argue, and the record does not support, that there was any deviation from the

plan in his case. Instead, Roberson argues that the historical under-representation of

blacks among voters creates a systematic exclusion of blacks from jury pools when

voter registration is used to select potential jurors.2 Roberson grounds his claim in his
the plan would have required the inclusion of names of licensed drivers as well as

registered voters.

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assertion that “the percentage of the African American population of the district stands

at 6.82 percent. It is undisputed that the total number of African Americans in the jury

pool for the Appellant’s trial was exactly zero.” Thus, he concludes, there must be a

systematic exclusion of African Americans from the jury selection process. Roberson

has not submitted evidence of the racial composition of any venire panel other than his

own.

“We have consistently approved the use of voter registration lists to select jury

pools.” Floyd, 996 F.2d at 949. 

Even if proportionally fewer blacks register to vote, “[t]he mere fact that

one identifiable group of individuals votes in a lower proportion than the

rest of the population does not make a jury selection system illegal or

unconstitutional.” Absent proof that obstacles are placed in the path of

blacks attempting to register to vote, voter registration lists may be used

as the sole source for selecting jury pools. 

Id. (quoting United States v. Clifford, 640 F.2d 150, 156 (8th Cir. 1981)). “Evidence

of a discrepancy on a single venire panel cannot demonstrate systematic exclusion.”

Singleton v. Lockhart, 871 F.2d 1395, 1399 (8th Cir. 1989). “To demonstrate the

existence of systematic exclusion, a defendant must prove unfair underrepresentation

of the excluded group on his venire and in general on other venires in the relevant

judicial system near the time of his trial.” Id. at 1398. Because Roberson has not

demonstrated any systematic exclusion of blacks from venire panels, we affirm the

court’s decision on this issue.

The judgment entered on the jury’s verdict in favor of Riggs is affirmed, as is the

dismissal of the official-capacity claims against Sheckell and Riggs. The order granting
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summary judgment in favor of Sheckell on the individual-capacity claim against him

and denying the motion for leave to amend the complaint is reversed. The case is

remanded to the district court for further proceedings not inconsistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.