Submitted: January 16, 2019
from United States District Court for the Southern District
of Iowa - Des Moines
LOKEN, GRASZ, and STRAS, Circuit Judges.
Cejvanovic, while serving a life sentence at the Iowa State
Penitentiary ("ISP"), suffered a serious hip injury
when assaulted by a fellow inmate. Following hip surgery,
Cejvanovic brought this 42 U.S.C. § 1983 action alleging
that five ISP employees were deliberately indifferent to his
serious medical needs. Defendants moved for summary judgment,
and Cejvanovic filed an initial response. The district
court appointed counsel who investigated the
claims and reported to the court "that no Amended Answer
to the Defendant's Motion for Summary Judgment can be
submitted without violation of Federal Rules of Civil
Procedure, Rule 11." The district court then granted
summary judgment dismissing the claims. Cejvanovic appeals,
arguing that the court abused its discretion in not
considering whether to appoint substitute counsel and that
defendants were not entitled to summary judgment. We affirm.
December 9, 2015, the day Cejvanovic was assaulted, he was
given pain medication and ordered to bed rest pending an
x-ray that revealed a fractured hip. The next day, he was
transferred to the University of Iowa Hospitals and Clinics
("UIHC"), where he was evaluated and surgery was
performed on December 11. He was released to ISP some days
later but returned to UIHC in the following months for
follow-up visits with the UIHC medical staff in charge of his
filed a pro se § 1983 Complaint on September
26, 2016. Regarding treatment of his hip injury, the only
claim at issue on appeal, Cejvanovic alleged:
I'm still in a great deal of pain as my hip surgery
didn't work out right. The doctor at UIHC says the hip
joint they used was defective and needs to be replaced, but,
ISP will not send me back to have the hip joint replaced. ISP
has taken away the walker I had been using then they took
away the walking cane that they had given for a few weeks. I
cannot walk or stand correctly to this day and I'm always
Complaint named as defendants ISP supervisors and medical
staff but no member of the treating medical staff at UIHC.
The district court issued an Initial Review Order concluding
that Cejvanovic "raised plausible claims," ordering
defendants to respond to the Complaint, and denying
Cejvanovic's request for appointment of counsel without
prejudice to renewing the motion if circumstances changed.
answering the Complaint, the ISP defendants filed a motion
for summary judgment on April 10, 2017. In support, they
submitted the Affidavit of ISP physician Stephen Sparks, ISP
records reflecting treatment of Cejvanovic's hip injury,
and UIHC medical records regarding the December 11 surgery
and Cejvanovic's follow-up visits to UIHC on December 28,
2015, February 5, 2016, and May 27, 2016. On the first visit,
the UIHC report noted: "Incision healed well without
difficulty. No other concerns . . . . The patient is in no
distress." On the second visit, the report noted:
"Patient has minimal tenderness with hip palpation, has
limited hip ROM on exam. He is ambulating with antalgic gait
. . . . Continue OTC pain medications, hip is healing well.
Full weight-bearing, may require assisted device for
ambulation. Return to clinic in 3 months for repeat
x-rays." On the third visit, the UIHC report noted:
"He reports hip and groin pain which is consistent with
his baseline. He is walking but feels that he is unsteady and
would benefit from a cane. Pain is controlled with OTC
medications . . . . Continue weight bearing as tolerated.
Refer for depth shoes for peripheral neuropathy. Patient may
benefit from a cane for stability while ambulating. Follow up
in 6 months for repeat xrays."
records record that Cejvanovic was provided a special pair of
New Balance shoes in July and work boots in December 2016. In
July, ISP physician Todd Jacks reported that Cejvanovic
"has asked about cane in past, but I am concerned about
how a cane might be used as a weapon." He noted that
Cejvanovic would "like [work classification] changed so
he can go back to work." Paragraph 15 of Dr.
Sparks's Affidavit concluded, "If there were
questions with regard to his hip injury --he would again be
referred to UIHC for further evaluation and treatment."
April 24, 2017, Cejvanovic, whose native language is Bosnian,
filed a six page response to defendants' motion,
hand-written in English. He asserted that his hip injury
"requires long term after care. And what is being done
by the Defendants is completely inadequate." "The
shoes were given but not the cane," even though
"numerous inmates all throughout the I.D.O.C.
system" have canes. Cejvanovic renewed his request for
appointment of counsel, noting his limited ability to
understand English. The district court then appointed
Cejvanovic counsel and an interpreter and granted counsel
multiple extensions to submit a further response to
defendants' summary judgment motion.
September 26, 2017, appointed counsel filed a "Report of
Counsel that No Amended Answer can be filed without violating
Federal Rule of Civil Procedure, Rule 11." After
summarizing his investigation in ...