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Renfro v. Clark-Barlow

United States District Court, E.D. California

September 24, 2019

RAY RICHARD RENFRO, Plaintiff,
v.
LISA CLARK-BARLOW, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. This matter proceeds against a single defendant, Family Nurse Practitioner (“FNP”) Lisa Clark-Barlow, on an Eighth Amendment medical indifference claim. Defendant now moves for summary judgment, and plaintiff has filed a motion for leave to file a tardy motion for summary judgment. Because the Court finds that there is no dispute of material fact as to whether defendant violated plaintiff’s rights, the undersigned will recommend that defendant’s motion be granted. Plaintiff’s motion for leave to file a tardy summary judgment motion will be denied.

         I. Plaintiff’s Allegations

         In 1998 (prior to incarceration), plaintiff was diagnosed as having endobronchial carcinoid tumor, which was not removed at the time due to circumstance. Plaintiff was then sentenced to imprisonment in 2004, and he arrived at Mule Creek State Prison (“MCSP”) in Ione, California, in November 2004.

         Upon his arrival at MCSP, plaintiff was examined by an intake doctor, Dr. Galloway, who made a medical notation that plaintiff suffers from chronic obstructive pulmonary disease (“COPD”), a heart condition, and diabetes. At this appointment and later during several other interactions with medical staff, plaintiff asked for removal of the tumor, but he was told either that “You’re being seen for something else” or “You’re an inmate. Inmates cannot diagnose themselves or demand treatment.” After multiple denials, plaintiff “became afraid of mentioning his tumor to medical staff.” On December 27, 2005, plaintiff asked a MCSP physician, Dr. Hashimoto, for surgery to remove the tumor. While Dr. Hashimoto made note of plaintiff’s tumor and COPD on an interdisciplinary progress note, he did not refer plaintiff to surgery. Following this interaction, plaintiff had other interactions with medical staff that caused plaintiff to fear that if he mentioned the tumor again, he would not receive treatment for it or his other medical conditions.

         On April 30, 2014, plaintiff was seen by defendant FNP Lisa Clark-Barlow. When he informed her of his need for an inhaler and the carcinoid tumor, she refused to treat him. Instead, she accused plaintiff of lying and told him that she is not prescribing an inhaler for his COPD and not getting “involved in your imaginary cancer.”

         II. Undisputed Facts[1]

         At all relevant times, plaintiff was a state inmate housed at MCSP. Compl. 1 ¶ 2. Defendant was employed at MCSP as a family nurse practitioner. Decl. of L. Clark-Barlow Supp. of Def.’s Mot. Summ. J. (ECF No. 18) ¶ 1. As a FNP, defendant’s responsibilities included examination of patients and diagnosing illnesses, prescribing medication, and administrating medical treatment. Clark-Barlow Decl. ¶ 3. She also provided comprehensive examination, evaluation, and treatment of patients; interpreted labs and imaging results; prescribed medications; took part in the institutional pain management committee; diagnosed; and referred to other specialists for higher level of care treatment. Id. ¶ 3.

         In October 1997 (prior to his incarceration), plaintiff was seen at Tucson Medical Center Hospital in Tucson, Arizona with a problem list that included “[h]istory of chronic obstructive pulmonary disease.” Compl. Ex. (ECF No. 1 at 21-25). During an evaluation, a carcinoid type lesion was noticed on his lung.

         Plaintiff arrived at MCSP on November 4, 2004. See Pl.’s Opp’n Ex. 3. Plaintiff’s early medical records at MCSP refer to lung cancer and COPD. For example, the medical intake form following plaintiff’s November 2004 arrival at MCSP included a notation for “Lung Ca ‘97” and “? Hx Carcinoid Tumor…” A November 18, 2004, medical note included “? Carcinoid tumor?” Id. A December 27, 2005, medical note referenced “carcinoid tumor … 1997” and “COPD.” See id. A December 2005 medication record included an inhaler. See id.

         FNP Clark-Barlow was assigned as plaintiff’s primary care provider (“PCP”) from July 2011 through most of 2013. Clark-Barlow Decl. ¶ 6. During that time, FNP Clark-Barlow saw plaintiff for hypertension, diabetes, gastric reflux disease, coronary artery disease, hiatal hernia, H-Pylori, angina, headache, obesity, benign prostate hypertrophy, and hyperlipoidemia. Id. ¶ 8. She has never seen him for COPD or prescribed him an inhaler. Id. ¶ 7. The inhaler was not listed, either, on any of plaintiff’s medication sheets from 2005-2006 or from 2011-2014.[2] Id. ¶ 10. Lastly, none of plaintiff’s hospitalization records while defendant was his PCP mentioned COPD or an inhaler on his medication list. Id. ¶ 9.

         In late 2013, FNP Clark-Barlow began working in the Treatment Triage Area (“TTA”) where she saw plaintiff periodically. Clark-Barlow Decl. ⁋ 6. In the TTA, FNP Clark-Barlow mainly addressed inmates’ urgent medical needs and not chronic medical issues. Id.

         On April 30, 2014, FNP Clark-Barlow saw plaintiff for diabetes mellitus type 2, hypertension, lower urinary tract symptoms, and chronic care provider follow-up. Clark-Barlow Decl. ¶ 12, Ex. A (ECF No. 18 at 35). Per defendant’s notes of that appointment, “Pt. states he has lung cancer since 1995. CT of chest done in 1997 negative per problem list.” Id. His problem list did not include COPD, history of lung cancer, or the endobronchial tumor, and he denied any shortness of breath. Id. ¶ 11, Ex. A (ECF No. 18 at 35).

         On May 4, 2014, plaintiff filed a Patient / Inmate Health Care Appeal complaining about FNP Clark-Barlow’s alleged refusal to treat his COPD and lung cancer. Compl. Ex. (ECF No. 1 at 10-12). As a result, Dr. James Jackson interviewed plaintiff on May 22, 2014, and noted a need for a work up of possible carcinoid tumor involving the endobronchial tree. Clark-Barlow Decl. Ex. A (ECF No. 18 at 36, 38). Possible COPD was also noted, and an inhaler was prescribed. Id. Plaintiff’s appeal was then granted in part at the first level of review.

         On July 28, 2014, plaintiff was seen at the San Joaquin General Hospital by a pulmonologist, Dr. Jamal Sadik. Clark-Barlow Decl. Ex. A (ECF No. 18 at 42-43). Dr. Sadik diagnosed plaintiff with endobronchial carcinoid tumor and determined that the location and size of the tumor could only be determined via a flexible fiberoptic bronchoscopy.

         Plaintiff’s grievance was granted in part at the second level of review on August 1, 2014. Compl. Ex. (ECF No. 1 at 15-17)

         Defendant saw plaintiff again on August 12, 2014. Clark-Barlow Decl. Ex. A (ECF No. 18 at 39). Based on Dr. Sadik’s examination and recommendation, FNP Clark-Barlow submitted a request for service for a fiberoptic flexible bronchoscopy. Clark-Barlow Decl. ¶ 13, Ex. A (ECF No. 18 at 40-41).

         On November 18, 2014, Plaintiff’s appeal was denied at the third level of ...


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