Husein Cejvanovic v. Nick Ludwick

United States Court of Appeals
For the Eighth Circuit
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No. 18-1370
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Husein Cejvanovic
lllllllllllllllllllllPlaintiff - Appellant
v.
Nick Ludwick, Warden, et al.
lllllllllllllllllllllDefendants - Appellees
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Appeal from United States District Court
for the Southern District of Iowa - Des Moines
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Submitted: January 16, 2019
Filed: May 3, 2019
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Before LOKEN, GRASZ, and STRAS, Circuit Judges.
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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
court1 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.
1
The Honorable Stephanie M. Rose, United States District Judge for the
Southern District of Iowa.
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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.”
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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 detail, counsel expressed his professional
opinion -
that while the medical treatment given [Cejvanovic] has not fully cured
or alleviated the pain and suffering, and that he disagrees with the
methods of treatment provided to him, that the failure of the Defendants
to either fully cure the injuries or provide him his preference of medical
treatment does not rise to the level of deliberate indifference or a
violation of his civil rights.
Counsel noted that Cejvanovic “does not accept the analysis and opinion of Counsel”
and “refuses to voluntarily withdraw or dismiss the Pro-Se Complaint.” Counsel then
stated “that no Amended Answer to the Motion for Summary Judgment can be filed
by the Undersigned,” and that counsel “awaits further instruction from the Court.”
On November 13, Cejvanovic filed a two-page letter to “Judge Stephanie M.
Rose,” hand-written in Bosnian. On November 16, appointed counsel filed a response
to Cejvanovic’s letter. Counsel advised that Cejvanovic had not provided a copy of
his letter to counsel or the interpreter, but “I forwarded a copy [to the interpreter] by
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e-mail, and we reviewed the gist of the Bosnian text.” Counsel concluded, “[a]t this
time, based upon the oral review of [Cejvanovic’s letter], I do not have anything to
change, add or expand in relation to the last filing I have made of record.” Cejvanovic
did not respond to counsel’s filing. On January 16, 2018, the district court granted
defendants’ motion for summary judgment.
II.
A. Cejvanovic first argues the district court abused its discretion by failing to
consider his request for substitute appointed counsel, relying primarily on our decision
in Rayes v. Johnson, 969 F.2d 700 (8th Cir. 1992), where we held that the district
court abused its discretion in denying an inmate’s repeated requests for substitute
counsel after appointed counsel withdrew, leaving the inmate to try his colorable but
complex claims pro se. But in this case, appointed counsel did not withdraw, and
there was no request for substitute counsel. In response to defendants’ motion for
summary judgment, Cejvanovic filed a lengthy response, in English, and requested
appointment of counsel. The court appointed counsel and an interpreter. After
substantial investigation, including a meeting with Cejvanovic and the interpreter at
ISP, counsel advised the court that he could not file an amended response without
violating Rule 11. Cejvanovic responded with a two-page letter to the court in
Bosnian. Counsel filed a response advising the court that he had reviewed the “gist”
of that letter with the interpreter and it did not change counsel’s opinion regarding an
amended response. Two months later, having heard nothing further from Cejvanovic,
the district court granted the motion for summary judgment.
Cejvanovic asserts on appeal that his letter written in Bosnian included a
request for new counsel. He moves to supplement the record on appeal with a
translation of the letter dated April 17, 2018, by a translator other than the interpreter
appointed by the district court. We deny the motion. This translation was not
available to the district court in considering defendants’ motion for summary
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judgment. When it denied that motion, the court knew: (i) Cejvanovic filed a lengthy
pro se Complaint in English; (ii) defendants filed a well-supported motion for
summary judgment; (iii) Cejvanovic filed an initial response in English along with a
motion for appointment of counsel; (iv) appointed counsel after substantial
investigation reported he could not file an amended response without violating Rule
11, but Cejvanovic disagreed with counsel’s opinion that defendants had not been
deliberately indifferent to his serious medical needs; (v) seven weeks later, Cejvanovic
filed a two-page letter in Bosnian without having it translated either by the court-
appointed interpreter or, as he had done before, by a fellow inmate; (vi) appointed
counsel promptly advised that he reviewed the translated letter with the interpreter and
it did not change counsel’s opinion; and (vii) Cejvanovic did not further communicate
with the court or supplement his initial response to defendants’ motion. The court
received no request for substitute counsel and had no basis in the summary judgment
record to suspect that appointment of new counsel would affect the court’s decision.
Cf. Taylor v. Dickel, 293 F.3d 427, 430-31 & n.8 (8th Cir. 2002) (denial of substitute
counsel upheld because any error harmless). There was no abuse of discretion.
B. Cejvanovic next argues the district court erred in granting defendants’
motion for summary judgment. “To prevail on an Eighth Amendment claim of
deliberate indifference to serious medical needs, [Cejvanovic] must prove that he
suffered from one or more objectively serious medical needs, and that prison officials
actually knew of but deliberately disregarded those needs.” Roberts v. Kopel, 917
F.3d 1039, 1042 (8th Cir. 2019) (quotation omitted). Defendants concede the
fractured hip he suffered in the December 2015 assault resulted in a serious medical
need. Thus, to avoid summary judgment, Cejvanovic must establish that the
defendant prison supervisors and medical staff were deliberately indifferent to this
serious medical need, a mental state “akin to criminal negligence.” Id. (quotation
omitted).
Cejvanovic first argues that his claim should succeed on the facts presented by
defendants because, when Dr. Jacks refused to allow Cejvanovic a cane because it
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might be used as a weapon, Jacks interfered with treatment recommended by
Cejvanovic’s treating UIHC physician. This overstates the UIHC record, which
reported in May 2016 only that “Patient may benefit from cane for stability while
ambulating.” The record reflects that, after the surgery, Cejvanovic was increasingly
ambulatory, requested fewer work restrictions so he could return to work, and was
provided New Balance shoes and then new work boots to increase his stability. In
Barnes v. Dorsey, we observed that not providing an inmate a cane that could be used
as a weapon was “prudent.” 480 F.2d 1057, 1061 (8th Cir. 1973). This treatment
complaint did not establish deliberate indifference.
More generally, Cejvanovic argues the district court erred by failing to consider
his complaints that defendants denied him ambulatory assistance and failed to remedy
post-surgery complications, as alleged in the Complaint and his initial response to the
summary judgment motion. We disagree. Cejvanovic submitted no evidence or
affidavit supporting allegations in his unverified Complaint that “[t]he doctor at UIHC
says the hip joint they used was defective and needs to be replaced,” and that “ISP has
taken away the walker I had been using.” The allegation in his initial response that
“what is being done by the Defendants is completely inadequate” is the kind of “mere
disagreement with treatment decisions [that] does not rise to the level of a
constitutional violation.” Jolly v. Knudsen, 205 F.3d 1094, 1096 (8th Cir. 2000)
(quotation omitted). As we explained in Dulany v. Carnahan, “[i]n the face of medical
records indicating that treatment was provided and physician affidavits indicating that
the care provided was adequate, an inmate cannot create a question of fact by merely
stating that [he] did not feel [he] received adequate treatment.” 132 F.3d 1234, 1240
(8th Cir. 1997).
Reviewing the grant of summary judgment de novo, we agree with the district
court that “[t]here is no evidence in the record that [Dr. Sparks] or any other medical
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provider or prison staff provided substandard care, and no evidence that the
Defendants ever acted in deliberate disregard of a serious medical need.”
For the foregoing reasons, the judgment of the district court is affirmed.
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