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Cejvanovic v. Ludwick

United States Court of Appeals, Eighth Circuit

May 3, 2019

Husein Cejvanovic Plaintiff - Appellant
v.
Nick Ludwick, Warden, et al. Defendants - Appellees

          Submitted: January 16, 2019

          Appeal from United States District Court for the Southern District of Iowa - Des Moines

          Before LOKEN, GRASZ, and STRAS, Circuit Judges.

          LOKEN, CIRCUIT JUDGE.

         Husein 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[1] 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.

         I.

         On 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 treatment.

         Cejvanovic 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 in pain.

         The 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.

         After 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."

         The ISP 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."

         On 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.

         On 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 ...


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