United States Court of Appeals
For the Eighth Circuit
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No. 13-3795
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Mark E. Hammett
lllllllllllllllllllll Plaintiff - Appellant
v.
J. Cofield; E. Conley; M. Sands; Leon Vickers; Thomas Baker; Stormi Moeller;
Beth Clad; Erica C. Cunningham; Mike Kemna; Dave Dormire, Superintendent;
Bill Galloway; Mark Schrieber
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: March 5, 2015
Filed: March 23, 2015
[Unpublished]
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Before BYE, SMITH, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Inmate Mark E. Hammett appeals the district court’s adverse grant of summary
judgment in his 42 U.S.C. § 1983 action. We reverse and remand for further
proceedings.
After this court reversed the dismissal of Hammett’s section 1983 action for
failure to exhaust administrative remedies, finding that he had exhausted certain
medical grievances, see Hammett v. Cofield, 681 F.3d 945 (8th Cir. 2012) (per
curiam), Hammett filed a verified amended complaint naming only Correctional
Medical Services (CMS) officials and employees, including doctors and nurses. His
Eighth Amendment claims arose from alleged inadequacies in the treatment for his
knee pain. The court granted summary judgment to the CMS defendants and
summarily denied Hammett’s multiple pending motions.
We conclude that the CMS defendants failed to meet their burden as summary
judgment movants. See Carrington v. City of Des Moines, Iowa, 481 F.3d 1046,
1050-51 (8th Cir. 2007) (at summary-judgment stage, moving parties carry ultimate
burden of proof to establish no material facts are in dispute and they are entitled to
judgment, as matter of law). Hammett offered verified allegations that Dr. Thomas
Baker told him he would not get surgery before age 50 and would not refer him to a
knee specialist; that Dr. Sands told him in early 2009 that some knee tendons were
detached, for which he needed an MRI and surgery, which he could not receive until
age 50 under CMS policy; and that despite a doctor’s order, nurse Beth Clad withheld
lidocaine patches for his knee pain after he was cleared of giving patches to another
inmate. In addition to Hammett’s verified allegations, he also offered the declarations
of other inmates as to their observations of his symptoms from his knee problems.
See Davis v. Jefferson Hosp. Ass’n, 685 F.3d 675, 682 (8th Cir. 2012) (verified
complaint is equivalent of affidavit for summary judgment purposes). Defendants’
supporting evidence consisted of grievance documents, and of computerized medical
records that are difficult to follow and end in July 2010, well before Hammett’s
amended complaint was filed in August 2012 and defendants moved for summary
judgment in April 2013. Further, the records were not accompanied by a declaration
from a medical professional explaining the significance of the documented findings,
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such as Dr. M. Sands’s assessment of a positive “anterior drawer” sign.1 See Mack
v. Dillon, 594 F.3d 620, 622 (8th Cir. 2010) (per curiam) (reviewing de novo grant
of summary judgment, viewing record and drawing all inferences in favor of
nonmovant).
As to Hammett’s motions, the district court did not rule on the motion to
reconsider appointment of counsel, or alternatively to appoint a medical expert, filed
some six months before the CMS defendants moved for summary judgment. On
remand the district court should rule on the motions. As to the motions Hammett
filed after his summary-judgment resistance, while we agree with the district court
that he offered no legitimate basis for recusal, see Roe v. St. Louis Univ., 746 F.3d
874, 886 (8th Cir. 2014) (abuse of discretion standard of review), the district court
offered no explanation for denying the multiple other pending motions, which
included a renewed motion for counsel and a motion under Fed. R. Civ. P. 56(d)
related to Hammett’s then recent MRI and knee surgery in early 2013. In his motion
to postpone the summary judgment ruling, Hammett declared the new medical records
would prove that the delay in the MRI and surgery had caused irreparable damage;
the district court summarily denied the motions, but granted summary judgment based
in part on Hammett’s failure to provide verifying medical evidence on the effect of
the delay. See Fed. R. Civ. P. 56(d)(2) (if nonmovant shows by declaration that, for
certain reasons, he cannot present facts essential to justify opposition, court may
allow time to take discovery or obtain affidavits or declarations); Hamilton v. Bangs,
McCullen, Butler, Foye & Simmons, LLP, 687 F.3d 1045, 1049-50 (8th Cir. 2012)
(noting Rule 56(f)–replaced by Rule 56(d)(2)–existed to prevent party from being
unfairly thrown out of court by premature summary judgment motion); Moots v.
Lombardi, 453 F.3d 1020, 1023 (8th Cir. 2006) (inmate complaining of delay in
1
This signifies rupture of the anterior cruciate ligament, the front portion of one
of the ligaments crossing the knee joint. See Mosby’s Dictionary of Medicine,
Nursing & Health Professions 110 (8th ed. 2009).
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treatment must offer verifying medical evidence that delay had detrimental effect).
We thus reverse and remand for further proceedings consistent with this opinion.
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