ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendants' motion for summary judgment. Plaintiff opposes the motion. Also before the court are plaintiff's motion for deferment and defendants' motion to strike sur-reply.
All facts are undisputed unless noted otherwise. At all times relevant to this action, plaintiff was a state prisoner incarcerated at Mule Creek State Prison ("MCSP") in Ione, California. Defendant Sahir Naseer was a physician at MCSP. Naseer Decl., ¶¶ 1-2. Defendant Aurelia Palomino was a registered nurse at MCSP. Palomino Decl., ¶¶ 1-2. Defendant R. Carrillo was a correctional sergeant at MCSP. Carrillo Decl., ¶¶ 1-2.
On May 18, 2008, plaintiff completed a Health Care Services Request Form, CDC 7362 ("CDC 7362 Form"), complaining of a "hard lump on [his] left mid/upper abdomen about the size of [his] fist." Opp'n, Ex. A. Plaintiff did not complain of pain on this form. See id.; see also Alcala Dep. at 24.
On May 20, 2008, plaintiff was assessed by Nurse Palomino in response to his CDC 7362 Form. Opp'n, Ex. A; Palomino Decl., ¶ 4. During the assessment, plaintiff did not complain of pain; he merely noted that "it's just uncomfortable." Id. Based on her assessment of plaintiff, Nurse Palomino informed Dr. Naseer of plaintiff's medical condition that same day because she deemed it was medically warranted and the proper course of treatment. Palomino Decl., ¶ 4.
On May 20, 2008, plaintiff was examined by Dr. Naseer. Naseer Decl., ¶ 5. Seeking to rule out malignancy, Dr. Naseer submitted a Physician Request for Services on plaintiff's behalf requesting that plaintiff be referred to San Joaquin General Hospital ("SJGH") "ASAP" for a CT scan of his abdomen and pelvis with contrast. Id.; Naseer Decl, Ex. A. Dr. Naseer also indicated that this request was "Routine" by circling that option on the Physician Request for Services form. Naseer Decl., Ex. A. Also on May 20, 2008, Dr. Naseer submitted a Physician Request for Services on plaintiff's behalf requesting that plaintiff be referred to SJGH for a routine surgery consultation after his CT scan was scheduled. Id ¶ 6.
When Dr. Naseer wishes to obtain outside treatment for an inmate, he must complete a Physician Request for Services, which requires the approval of the Chief Medical Officer. Naseer Decl., ¶ 4. Dr. Naseer does not schedule appointments with outside providers. Id. The prison's utilization management schedulers are responsible for acquiring contracting with outside providers and scheduling those appointments. Id. On the Physician Request for Services, Dr. Naseer can indicate urgency by circling the terms 'emergent,' 'urgent' or 'routine.' Id. He also has the option to write in terms, such as "ASAP." Id. Besides his circling options, Dr. Naseer has no authority as to how quickly appointments are scheduled. Id.
On May 20, 2008, Dr. Naseer also gave Nurse Palomino a verbal order to write an order for plaintiff to be seen in the MD (Doctor's) Line in one week for a follow-up of his abdominal mass. Naseer Decl., ¶ 6; Naseer Decl., Ex. C. Additionally, Dr. Naseer ordered laboratory tests for plaintiff, including a complete blood count, comprehensive metabolic panel and urinalysis. Id.
Dr. Naseer's requests for a CT scan and routine surgery consultation were approved on May 21, 2008. Naseer Decl., ¶¶ 5-6; Exs. A-B.
On June 2, 2008, plaintiff completed another CDC 7362 Form complaining of "a (fist size) lump on the left side of [his] Abdomen, which keeps [him] up all night long suffering profound discomfort and persistant [sic] belching." Opp'n, Ex. B. Plaintiff did not complain of pain. Id.; Alcala Dep. at 33.
Plaintiff was examined by Nurse Palomino on June 3, 2008 in response to the June 2, 2008 CDC 7362 Form. Opp'n, Ex. B; Palomino Decl., ¶ 6. Nurse Palomino's notes indicate that plaintiff had a pending CT scan and that he was scheduled to see Dr. Naseer within the week. Opp'n, Ex. B; Palomino Decl., ¶ 6.
On June 5, 2008, Dr. Naseer examined plaintiff for a follow-up of his abdominal mass. Naseer Decl., ¶ 7; Ex. D. In his notes, Dr. Naseer noted that plaintiff had already been referred for a surgery consultation and CT scan, which he was to receive within thirty days. Id. He also noted that plaintiff did not have any new complaints and no complaints of pain. Id.
On June 9, 2008, plaintiff went "man-down" on the yard and was taken to the Triage and Treatment Area ("TTA") at MCSP. Palomino Decl., ¶ 7; Ex. D. The TTA notes reflect that plaintiff was alert and oriented, though anxious, on examination. Palomino Decl., Ex. D. During the examination, plaintiff expressed concern over when he was scheduled to receive a CT scan. Id. He was in no acute distress and was described as "very calm." Id. After discussion with TTA staff, plaintiff stated his anxiety was resolved, and he was placed on the MD Line for the next day. Id.
On June 10, 2008, plaintiff submitted a third CDC 7362 Form. Palomino Decl., Ex. E. In this form, plaintiff sought "Immediate Emergency Health Care Treatment, In that I have a large (Base-Ball Size) lump in my left Abdomen that is causing me pain, discomfort, bloating, constipation, indigestion, loss of weight, loss of appetite, and it must be pressing down against my heart because when I lie flat on my back I can see the left side of my stomach palpitating hard up and down with the beat of my heart." Id.
In response to this third CDC 7362 Form, plaintiff was seen by Nurse S. Massaglia, not a party to this action, on June 13, 2008. Palomino Decl., ¶ 8; Ex. E. After Nurse Massaglia's assessment, plaintiff was referred to Dr. Hawkins, also not a party to this action. Id. Based on Dr. Hawkins's verbal orders, plaintiff was sent to SJGH for a CAT scan. See Palomino Decl., Ex. F. Neither Nurse Palomino nor Dr. Naseer assessed or examined plaintiff on this day.
On June 17, 2008, plaintiff filled out a fourth CDC 7362 Form. Palomino Decl., Ex. F. Plaintiff wanted to know what the next steps would be in his health care plan. Id.
On June 18, 2008, Nurse Palomino assessed plaintiff in response to the June 17, 2008 CDC 7362 Form. Palomino Decl., ¶ 9; Ex. F. During this assessment, plaintiff requested a regular diet instead of a pureed food diet, and he wanted to see the doctor, though he had no complaints of pain. Id. Following this assessment, Nurse Palomino spoke with Dr. Hawkins about plaintiff's medical history, request for a regular diet and request to see a doctor. Palomino Decl., ¶ 9. Dr. Hawkins gave Nurse Palomino verbal orders for a regular diet, a follow-up appointment for plaintiff on June 20, 2008 in the MD Line, and a dietitian evaluation. Id. On June 23, 2008, plaintiff's diet was changed to a regular diet. Id. ¶ 10; Ex. G.
On June 24, 2008, plaintiff filled out a fifth CDC 7362 Form. Palomino Decl., ¶ 11; Ex. H. On this form, which was addressed to Dr. Hawkins, plaintiff expressed concerns with the seriousness of his condition due to the size of his tumor and its spread to plaintiff's lungs. Id. Plaintiff requested to be sent out to receive a biopsy and prospective treatment. Id.
On June 25, 2008, plaintiff completed a sixth CDC 7362 Form requesting medicine for pain management. Palomino Decl., ¶ 11; Ex. H.
On June 27, 2008, Nurse Palomino assessed plaintiff with respect to his fifth and sixth CDC 7362 Forms. Palomino Decl., ¶ 11; Ex. H. During the assessment, plaintiff scored his pain at night as 10 on a scale of 1 to 10. Id. Nurse Palomino contacted Physician Assistant ("PA") Todd who prescribed Tylenol #3. Id. Nurse Palomino also reassured plaintiff that his biopsy was pending after PA Todd verified the appointment with the receiving and release nurse. Id. PA Todd wrote an order for plaintiff to follow up in the MD Line between June 30 and July 3, 3008. Id.
On June 30, 2008, plaintiff's cell mate, Ronald Rivers, called "man-down" at 7:30 a.m. after plaintiff repeatedly complained of pain. Alcala Dep. at 68-69. In response, plaintiff claims defendant Carrillo and at least four other officers arrived at plaintiff's cell where plaintiff was lying in a fetal position on his bed. Id. at 71-73. Plaintiff alleges Carrillo accused plaintiff of faking his illness. Id. at 73-76. Plaintiff also alleges Carrillo refused to allow medical staff to carry plaintiff on a stretcher from his second floor cell to the bottom of the stairs where a cart awaited to take plaintiff to the TTA. Id. Instead, plaintiff was forced to walk with the assistance of two or three people "[m]aybe 25, 30 feet" from his cell to the top of the stairs and then down "[m]aybe 15 steps" to the cart at the bottom of the steps. Id. Plaintiff estimates he walked for a total of five to seven minutes. Id. at 77. He also claims that he was forced to wait a couple of hours before being seen by a doctor in the TTA. See id. at 80.
Carrillo has no recollection of plaintiff going "man-down" on June 30, 2008. Carrillo Decl., ¶ 5. Carrillo declares that if plaintiff had gone "man-down," he would never have forced plaintiff to walk when a stretcher was present. Id. ¶ 6.
Plaintiff was seen in the TTA at 8:00 a.m. the morning of June 30, 2008 with complaints of constipation for five days and an inability to eat for two days. Naseer Decl., Ex. G. At 8:45 a.m., plaintiff was seen by Dr. Wesley Hashimoto, not a party to this action, who diagnosed plaintiff with an enlarging abdominal mass and possible colon obstruction. Id. Plaintiff was sent by ambulance to SJGH Emergency Department. Id.
Plaintiff remained at SJGH from June 30, 2008 to July 2, 2008. Naseer Decl., ¶ 12.
On his return from SJGH, plaintiff was placed in administrative segregation where he remained until July 11, 2008. Alcala Dep. at 82-85. None of the defendants were responsible for plaintiff's placement in administrative segregation. Carrillo Decl., ¶ 8; Naseer Decl., ¶ 23; Palomino Decl. ¶ 18. Plaintiff admits that none of these ...