United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANT
CONANAN'S MOTION FOR SUMMARY JUDGMENT [ECF NO.
Dennis Curtis Hisle is appearing pro se and in forma pauperis
in this civil rights action pursuant to 42 U.S.C. §
before the Court is Defendant Dr. Conanan's motion for
summary judgment, filed June 17, 2019.
action is proceeding against Defendants Marlyn Conanan and
John Doe (at Mercy Hospital) for deliberate indifference to a
serious medical need./// On April 10, 2018, Defendant Conanan
filed an answer to the complaint. On April 11, 2018, the
Court issued the discovery and scheduling order.
previously stated, on June 17, 2019, Defendant Conanan filed
a motion for summary judgment. Plaintiff filed an opposition
on August 20, 2019, and Defendant filed a reply on August 27,
2019, along with objections. (ECF Nos. 84, 85, 86.)
September 16, 2019, Plaintiff filed a response to
Defendant's objections, a surreply to Defendant's
reply, and a request for an extension of time to conduct
further discovery. (ECF Nos. 88, 89, 90.)
party may move for summary judgment, and the Court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a)
(quotation marks omitted); Washington Mut. Inc. v.
U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each
party's position, whether it be that a fact is disputed
or undisputed, must be supported by (1) citing to particular
parts of materials in the record, including but not limited
to depositions, documents, declarations, or discovery; or (2)
showing that the materials cited do not establish the
presence or absence of a genuine dispute or that the opposing
party cannot produce admissible evidence to support the fact.
Fed.R.Civ.P. 56(c)(1) (quotation marks omitted). The Court
may consider other materials in the record not cited to by
the parties, but it is not required to do so. Fed.R.Civ.P.
56(c)(3); Carmen v. San Francisco Unified Sch.
Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th
judging the evidence at the summary judgment stage, the Court
does not make credibility determinations or weigh conflicting
evidence, Soremekun v. Thrifty Payless, Inc., 509
F.3d 978, 984 (9th Cir. 2007) (quotation marks and citation
omitted), and it must draw all inferences in the light most
favorable to the nonmoving party and determine whether a
genuine issue of material fact precludes entry of judgment,
Comite de Jornaleros de Redondo Beach v. City of Redondo
Beach, 657 F.3d at 942 (quotation marks and citation
Summary of Plaintiff's Complaint
repeatedly informed Dr. Conanan that he was suffering
excruciating pain and could not breathe. Dr. Conanan
performed an x-ray and discovered that Plaintiff had three
broken ribs and internal bleeding that was not previously
detected by staff at Community Regional Medical Center
(CRMC). Despite the x-ray results, Plaintiff was ordered to
return to his cell. However, two to three days later,
Plaintiff was rushed to the hospital.
about May 21, 2016, Plaintiff was taken by ambulance to Mercy
Hospital in Bakersfield for treatment of three broken ribs,
internal bleed, and removal of a developing extra pleural
hematoma. Dr. John Doe kept Plaintiff chained to a bed with
continuous internal bleeding, strained breathing and in great
pain for two weeks because there was no bed space to be
transferred to Memorial Hospital. When Plaintiff eventually
arrived at Memorial Hospital, a surgical procedure was
attempted by use of a large needle to extract the blood which
if it had been done sooner would have worked. However, due to
the length of delay in treatment removal required a much more
serious surgical procedure. Dr. John Doe would visit
Plaintiff's room and state “he doesn't know
what to do with me, and he actually suggest[ed] sending me
back to (CDCR) PVSP because of the wait.”
Statement of Undisputed Facts
Plaintiff was an inmate at Pleasant Valley State Prison. On
October 17, 2017, Plaintiff filed the first amended complaint
and alleged that Dr. Marylyn Conanan was deliberately
indifferent to Plaintiff's rib fractures. (Pl.'s
First Amd. Compl. (FAC).)
Plaintiff has no medical degrees and is not a medical expert.
(Pl.'s Dep. 11:11-19; 56:11-14; 85:10-13.)
Plaintiff had to be taken to Community Regional Medical
Center (CRMC) due to being assaulted in the dayroom on April
28, 2016. (Pl.'s Dep. 28:1-2; Conanan Decl. ¶ 3 Ex.
A; Feinberg Decl. ¶ 8 Ex. B.)
While at CRMC, Plaintiff had a CT scan of his chest and
abdominal area and was determined to be clinically stable.
(Pl.'s Dep. 28:15-21; Conanan Decl. ¶ 3 Ex. A;
Feinberg Decl. ¶ 9 Ex. B.)
testing conducted on Plaintiff at CRMC did not detect any
broken ribs. (Pl.'s Dep. 30:19-23; Conanan Decl. ¶ 3
one at CRMC had diagnosed Plaintiff with broken ribs.
(Pl.'s Dep. 30-31; Conanan Decl. ¶ 3 Ex. A.)
Plaintiff received a lay-in where he was confined to quarters
for four days after his return from CRMC on or about April
29, 2016. (Pl.'s Dep. 36:25; 37:1-2.)
Plaintiff met with Defendant Conanan on May 2, 2016 so that
she could review his treatment at CRMC. Dr. Conanan told
Plaintiff that his testing at CRMC indicated normal results.
Plaintiff complained of pain in his right chest area below
his rib cage. For this reason, Dr. Conanan requested that
Plaintiff receive a chest x-ray. (Pl.'s Dep. 42-46;
Conanan Decl. ¶ 4; Feinberg Decl. ¶ 10 Ex. B.)
May 4, 2016, Plaintiff received a chest x-ray, which was
interpreted by Dr. C. Schultz, M.D. to show rib fractures at
the seventh, eighth, and ninth posterior ribs. There was also
no visible pneumothorax or collapsed lung, and there was a
small, right pleural effusion or hemothorax present. These
images were new and not visualized on the CT scan taken of
Plaintiff at CRMC. (Pl.'s Dep. 48:15-25; 49:1-5; Conanan
Decl. ¶ 5 Ex. C; Feinberg Decl. ¶ 11.)
May 5, 2016, Dr. Conanan had a follow-up appointment with
Plaintiff to review the results of his May 4, 2016 x-ray. Dr.
Conanan prescribed critical pain medications, and activity
modifications, and scheduled Plaintiff for a follow-up
appointment on May 12, 2016 to check the status of
Plaintiff's rib fractures. (Pl.'s Dep. 52:8-25; 54,
55; 61-62; Conanan Decl. ¶ 6 Ex. D; Pl's Dep.
48:7-10; Pl.'s Dep. Ex. 5; Feinberg Decl. ¶ 12.)
Conanan believed that Plaintiff's injuries could be
treated with regular monitoring, activity modification, rest,
and pain management with pain medications. Dr. Conanan did
not believe Plaintiff required urgent hospitalization.
Further, attempting to drain a small effusion can likely
cause further complications, such as a pneumothorax. (Conanan
Decl. ¶ 11; Feinberg Decl. ¶ 27.)
May 9, 2016, Plaintiff refused to take Tylenol #3 against
medical advice and signed a “refusal of examination or
treatment” from stating that he had refused the
medications after being advised of the risks associated with
refusing to take the medications. (Pl.'s Dep. 66:10-20;
67:18-25; 68:7-25; 69; Conanan Decl. ¶ 7 Ex. E; Feinberg
Decl. ¶ 13.)
May 12, 2016, Plaintiff saw Dr. Conanan again. Plaintiff
again complained of pain to his lower right chest area and
had pain when he breathed deeply. Dr. Conanan ordered another
x-ray of Plaintiff and told Plaintiff to take his prescribed
pain medications. Dr. Conanan scheduled another follow-up
appointment with Plaintiff for May 19, 2016. (Pl.'s Dep.
61:2-25; 62:11-22; 63:8-18; 65:17-25; 66:1-9; Conanan Decl.
¶ 8 Ex. F; Feinberg Decl. ¶ 14.)
Given Plaintiff's new occasional cough, mucus and slight
wheezing demonstrated at Plaintiff's May 12, 2016
appointment with Dr. Conanan, Dr. Conanan prescribed
antibiotics for a possible upper respiratory infection,
renewed Plaintiff's pain medications, and requested a
repeat chest x-ray. (Pl.'s Dep. 59:9-13; Conanan Decl.
¶ 8 Ex. F; Feinberg Decl. ¶ 14 Ex. B.)
May 16, 2016, Plaintiff had another x-ray. Dr. Schultz
interpreted that x-ray and visualized a large opacity that
appeared over Plaintiff's right lung. This finding was
new and had not appeared on any previous x-ray. (Conanan
Decl. ¶ 9 Ex. G; Feinberg Decl. ¶ 16.)
Technician Richard operated the x-ray imaging equipment for
Plaintiff on May 16, 2016. He made no diagnosis or
interpretation of this x-ray and did not recommend to Dr.
Conanan or any doctor that Plaintiff needed urgent
hospitalization. Technician Richard does not have the
training, knowledge, or experience to interpret x-ray film
and diagnose medical conditions. (Richard Decl. ¶ 2.)
May 19, 2016, Dr. Conanan had a follow-up appointment with
Plaintiff to discuss the findings from Plaintiff's May
16, 2016 x-ray. Dr. Conanan's medical process notes
indicates that she decided, based on the fact that there was
an opacity visualized on the May 16, 2016 x-ray, to make an
urgent request for Plaintiff to see a pulmonologist.
(Pl.'s Dep. 80:18-23; Conanan Decl. ¶ 10 Ex. H.)
Inmate Hisle was transferred to an outside hospital on May
20, 2016. (Conanan Decl. ¶ ...