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Hisle v. Conanan

United States District Court, E.D. California

October 30, 2019

MARLYN CONANAN, et al., Defendants.


         Plaintiff Dennis Curtis Hisle is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendant Dr. Conanan's motion for summary judgment, filed June 17, 2019.



         This action is proceeding against Defendants Marlyn Conanan and John Doe (at Mercy Hospital) for deliberate indifference to a serious medical need.[1]/// On April 10, 2018, Defendant Conanan filed an answer to the complaint. On April 11, 2018, the Court issued the discovery and scheduling order.

         As 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.)

         On 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.)



         Any 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 Cir. 2010).

         In 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 omitted).



         A. Summary of Plaintiff's Complaint

         Plaintiff 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.

         On or 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.”

         B. Statement of Undisputed Facts

         1. 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).)

         2. Plaintiff has no medical degrees and is not a medical expert. (Pl.'s Dep. 11:11-19; 56:11-14; 85:10-13.)

         3. 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.)

         4. 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.)

         5. The testing conducted on Plaintiff at CRMC did not detect any broken ribs. (Pl.'s Dep. 30:19-23; Conanan Decl. ¶ 3 Ex. A.)

         6. No one at CRMC had diagnosed Plaintiff with broken ribs. (Pl.'s Dep. 30-31; Conanan Decl. ¶ 3 Ex. A.)

         7. 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.)

         8. 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.)

         9. On 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.)

         10. On 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.)

         11. Dr. 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.)

         12. On 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.)

         13. On 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.)

         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.)

         15. On 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.)

         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.)

         17. On 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.)

         18. Inmate Hisle was transferred to an outside hospital on May 20, 2016. (Conanan Decl. ¶ ...

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