John D. Johnson v. State of IA

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2945NI
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Marvin D. Sisk, *
*
Appellant, *
*
v. *
*
Michael Kubik, individually, and * On Appeal from the United
Sheriff of Black Hawk County; * States District Court
William Miller, Captain, Individually * for the Northern District
and Jail Administrator of Black Hawk * of Iowa.
County, Iowa; Diane Heimbuck, *
Faculty Nurse, Individually and as * [Not To Be Published]
Nurse of Black Hawk County, Iowa; *
Patricia Ann Boeck, Faculty Nurse, *
Individually and as Nurse of Black *
Hawk County, Iowa, *
*
Appellees. *
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Submitted: July 21, 2000
Filed: August 15, 2000
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Before RICHARD S. ARNOLD, McMILLIAN, and BYE, Circuit Judges.
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PER CURIAM.

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1The Honorable Mark. W. Bennett, United States District Judge for the Northern
District of Iowa, adopting the reports and recommendations of the Honorable Paul A.
Zoss, United States Magistrate Judge for the Eastern District of Iowa.
2The only notice Plaintiff had that the District Court was going to dismiss one of
the nurses for lack of service of process was a recommendation to that effect in the
Magistrate Judge’s report. Cf. Fed. R. Civ. P. 4(m) (if service not made upon
defendant within 120 days of filing complaint, court after notice to plaintiff shall
dismiss action without prejudice). But in any event, the claim against the dismissed
nurse fails for the same reason as it fails against the nurse to whom summary judgment
was granted.
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Marvin Sisk appeals the District Court’s1 dismissal of his 42 U.S.C. § 1983
complaint alleging deliberate indifference to his medical needs. Plaintiff filed suit
against the sheriff and jail administrator of Black Hawk County, Iowa, and an unnamed
jail nurse, whom he later identified in an amended complaint as two named nurses. The
District Court dismissed one of the nurses for lack of service of process, granted
summary judgment to the other, and granted the motion to dismiss of the sheriff and jail
administrator. After a careful review of the record and the parties’ briefs, we affirm.
We find that the District Court correctly granted summary judgment, because
Plaintiff did not create a triable issue as to whether either of the nurses knowingly failed
to provide essential medical care or to investigate an acute or escalating condition.2
See Dulany v. Carnahan, 132 F.3d 1234, 1237, 1240-41, 1243 (8th Cir. 1997).
We note that the District Court essentially converted the sheriff and jail
administrator’s Federal Rule of Civil Procedure 12(b)(6) motion into one for summary
judgment by not excluding from consideration the material they had presented outside
of their pleadings, see Fed. R. Civ. P. 12(b). We also note that Plaintiff may have
created a genuine issue of fact as to whether these two defendants had actual
knowledge of Plaintiff’s complaints concerning the alleged denial of medical care.
Nevertheless, because Plaintiff has failed to produce evidence that the nurses were

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deliberately indifferent to his medical needs, his claim that the sheriff and jail
administrator were liable for ignoring his complaints about his medical care must also
fail.
Finally, Plaintiff’s argument on appeal that appointed counsel was ineffective in
prosecuting his case below fails, because there is no constitutional or statutory right to
effective assistance of counsel in a civil case. See Glick v. Henderson, 855 F.2d 536,
541 (8th Cir. 1988).
Accordingly, we affirm.
We deny Sisk’s motion for appointment of counsel as moot.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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