United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
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.
(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
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
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.”
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.
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.
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.
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. 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.
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.
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).
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.
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.
grievance was granted in part at the second level of review
on August 1, 2014. Compl. Ex. (ECF No. 1 at 15-17)
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).
November 18, 2014, Plaintiff’s appeal was denied at the
third level of ...