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Christopher W. Cardwell v. A. Kettelhake

March 28, 2013


The opinion of the court was delivered by: James L. Robart United States District Judge



Before the court are: (1) pro se Plaintiff Christopher W. Cardwell's sixth motion seeking the appointment of counsel (Dkt. # 77), (2) Defendants Nurse Virginia Unterreiner, Nurse Judi Damm (formerly Camacho), Nurse Practitioner Mary Miller, and Nurse Thomas Reshke's motion for summary judgment (Dkt. # 78), and (3) Mr. Cardwell's motion for an extension of time in which to file a response to Defendants' motion for summary judgment (Dkt. # 80). The court has considered all three motions, all submissions filed in support and opposition thereto, the remainder of the record, and the relevant law. Being fully advised, the court DENIES Mr. Cardwell's motion to appoint counsel, GRANTS Defendants' motion for summary judgment, and GRANTS Mr. Cardwell's motion for an extension of time in which to file his response.


Mr. Cardwell is an inmate incarcerated within the California Department of Corrections and Rehabilitation. Mr. Cardwell complains that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment when he was transferred on November 26, 2007, from Mule Creek State Prison ("MCSP") to High Dessert State Prison ("HDSP"). Specifically, he claims that between November 26, 2007 and sometime in early to mid December 2007, Defendants at HDSP acted with deliberate indifference in failing to ensure that he received a particular type of pain medication (Gabapentin) that he had been previously prescribed for treatment of lower back pain while he was incarcerated at MCSP.

At the time of his transfer, Mr. Cardwell was taking Gabapentin for lower back pain. (7/2/10 Resp. (Dkt. # 63) at 3.) Doctor Wesl Hashimoto, a physician at MCSP had prescribed Gabapentin to Mr. Cardwell on August 27, 2007, with a prescription expiration of February 11, 2008. (Id.) In connection with Mr. Cardwell's November 26, 2007 transfer, Nurse Kettlehake, who worked at MCSP, filled out a "Confidential Medical Health Information Transfer-Sending Institution" form ("Sending Form"). (3/30/12 SJ Ord. (Dkt. # 76) at 2.) On the Sending Form, under "Medications Prescribed," Nurse Kettelhake wrote "See MAR," which stands for Medication Administration Record. (Id.) The MAR listed Mr. Cardwell's prescription for Gabapentin. (Id. at 3.) Nurse Kettlehake did not, however, specify on the Sending Form the particular medications Mr. Cardwell was prescribed at the time of his transfer. (Id. at 2.) The parties dispute whether the MAR, referenced in the Sending Form, arrived at MCSP during Mr. Cardwell's transfer. (See id. at 3, n.1.)*fn1

A. Nurse Camacho

Nurse Camacho has testified that on November 26, 2007, she was working in Receiving and Release and charged with acknowledging receipt of the "Sending Forms" from other institutions as inmates arrived. (See Camacho Decl. (Dkt. # 78-4) ¶ 4.) Mr. Cardwell complains that upon his November 26, 2007 arrival at HDSP, Nurse Camacho received, reviewed, and signed the "Sending Form" (Form 7371) but failed to properly document or follow up with respect to his medical needs. (Resp. at 1-2.) Nurse Camacho, however, has testified that she had no involvement in filling out Mr. Cardwell's "Sending Form" and that by signing it, she was simply acknowledging HDSP's receipt of the form. (See id. ¶¶ 6-7.)

Nurse Camacho has testified that she did not see or interview Mr. Cardwell upon his arrival at HDSP. (Id. ¶ 8.) In receiving the Sending Form, she was instructed to review it only to ascertain if the prisoner/patient was diabetic. (Id. ¶¶ 7-8.) If, like Mr. Cardwell, the prisoner/patient was not diabetic, then she was supposed to simply sign the form and forward it to the nurse conducting the second step in the health screening process-the face-to-face screening examination with the prisoner/patient. (Id.) She fulfilled the role she was assigned on November 26, 2007. (Id. ¶ 8.) Nurse Camacho has testified that at no time was she deliberately indifferent to Mr. Cardwell's medical needs. (Id. ¶ 9.)

Mr. Cardwell states that he disputes Nurse Camacho's testimony (Resp. (Dkt. # 81) at 18), but provides no competent evidence in support of his dispute except for his own declaration.*fn2 In his declaration, Mr. Cardwell baldly asserts with no foundation that Nurse Camacho "was responsible for the completion of the [Sending Form]" and that "[t]his service/duty was not performed by [Nurse Camacho] for plaintiff." (Cardwell Decl. re: Camacho (Dkt. # 81 at 46) ¶ 5.) Mr. Cardwell also states that he "believe[s]" and "allege[s]" that Nurse Camacho "acted intentionally" and "had knowledge of [his] condition." (Id. ¶ 6.) Finally, Mr. Cardwell "contend[s]" in his declaration that Nurse Camacho "had knowledge of [his] serious medical needs and the treatment ordered by a physician" but "acted with deliberate indifference to [his] serious medical needs." (Id. ¶ 7.) Allegations, beliefs, contentions, or conclusory statements, which lack foundation, are insufficient to create a genuine issue of material fact with respect to summary judgment. Other than these insufficient declaratory statements, Mr. Cardwell offers no other evidence to refute Nurse Camacho's declaration.

B. Nurse Reshke

On November 26, 2007, Nurse Reshke conducted a screen examination of Mr. Cardwell upon his arrival at HDSP. (Reshke Decl. (Dkt. # 78-3) ¶ 5; Cardwell Decl. re: Reshke (Dkt # 81 at 43) ¶ 5.) Part of the screening exam included filling out CDCR Form 7277 by asking Mr. Cardwell questions and eliciting responses from him. (Reshke Decl.¶ 6; Cardwell Decl. re: Reshke ¶ 6.)*fn3 During the course of the examination, Nurse Reshke asked Mr. Cardwell if he was currently taking any medications. (Reshke Decl. ¶ 7; see Cardwell Decl. re: Reshke ¶ 8.) Accordingly to Nurse Reshke, Mr. Cardwell indicated that he was not currently taking any medications and had no apparent complaints, and so Nurse Reshke circled "no" on Form 7277 for Item No. 3 and did not make any medical referral on November 26, 2007. (Reshke Decl. ¶¶ 7-8, Ex. C.) Mr. Cardwell, however, testifies that he told Nurse Reshke that he was currently on medication and that he experienced chronic pain in his lower back. (Cardwell Decl. re: Reshke ¶¶ 8, 13.) Mr. Cardwell also testifies that Nurse Reshke "engaged in jokes and conversation with staff" while Nurse Reshke was conducting Mr. Cardwell's screening examination, and that Nurse Reshke repeated some of the questions that he was asking Mr. Cardwell during the examination. (Id. ¶ 7.)

C. Nurse Unterreiner

On November 27, 2007, Mr. Cardwell submitted a "sick call slip" or Form 7362 stating that he had not received his pain medications for his back. (See Unterreiner Decl. (Dkt. # 78-2) ¶ 6; Cardwell Decl. re: Unterreiner (Dkt. # 81 at 38) ¶ 6.) On December 3, 2007, Mr. Cardwell approached Nurse Unterreiner and complained regarding his lack of pain medication. (Unterreiner Decl.¶ 4.) He also testifies that he specifically told Nurse Unterreiner that he had been given a prescription for Gabapentin. (Cardwell Decl. re: Unterreiner ¶ 9.) Nurse Unterreiner testifies that she reviewed Mr. Cardwell's unit health records and saw that he had been prescribed Tylenol and Gabapentin. *fn4 (Unterreiner Decl.¶ 4.) She notified the on-call nurse practitioner, Mary Miller, regarding Mr. Cardwell's complaints that he had not been receiving his pain medication.*fn5 (Id.) Nurse Practitioner Miller issued a telephone order for Motrin 800 milligrams and also ordered a follow-up referral for Mr. Cardwell to the doctor with respect to obtaining Gabapentin. (Id. ΒΆΒΆ ...

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