The opinion
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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
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11 DENNIS C. HISLE, No. 1:21-cv-01680-KES-SAB (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATION
REGARDING DEFENDANT’S MOTION
13 v. FOR SUMMARY JUDGMENT
14 MARLYN CONANAN, (ECF No. 65)
15 Defendant.
16
17 Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant
18 to 42 U.S.C. § 1983.
19 Currently before the Court is Defendant’s motion for summary judgment, filed November
20 3, 2025.
21 I.
22 BACKGROUND
23 This action is proceeding against Defendant Marlyn Conanan for deliberate difference for
24 “falsification of medical records, failure to provide Plaintiff a lay in, and failure to urgently refer
25 Plaintiff to a pulmonologist.” (ECF No. 6 at 4:8-10.)
26 Defendant filed an answer to the complaint on March 3, 2023. (ECF No. 29.) On April 7,
27 2023, the Court issued the discovery and scheduling order. (ECF No. 34.)
28
1 Defendant filed a motion for summary judgment on November 3, 2025. (ECF No. 65.)
2 Plaintiff filed a timely opposition on December 29, 2025, and Defendant filed a reply on January
3 13, 2026. (ECF Nos. 70, 71.)
4 II.
5 LEGAL STANDARD
6 A. Summary Judgment Standard
7 Any party may move for summary judgment, and the Court shall grant summary judgment
8 if the movant shows that there is no genuine dispute as to any material fact and the movant is
9 entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a) (quotation marks omitted);
10 Washington Mut. Inc. v. U.S., 636 F.3d 1207, 1216 (9th Cir. 2011). Each party’s position, whether
11 it be that a fact is disputed or undisputed, must be supported by (1) citing to particular parts of
12 materials in the record, including but not limited to depositions, documents, declarations, or
13 discovery; or (2) showing that the materials cited do not establish the presence or absence of a
14 genuine dispute or that the opposing party cannot produce admissible evidence to support the fact.
15 Fed. R. Civ. P. 56(c)(1) (quotation marks omitted). The Court may consider other materials in the
16 record not cited to by the parties, but it is not required to do so. Fed. R. Civ. P. 56(c)(3); Carmen
17 v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001); accord Simmons v.
18 Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010).
19 In judging the evidence at the summary judgment stage, the Court does not make credibility
20 determinations or weigh conflicting evidence, Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,
21 984 (9th Cir. 2007) (quotation marks and citation omitted), and it must draw all inferences in the
22 light most favorable to the nonmoving party and determine whether a genuine issue of material fact
23 precludes entry of judgment, Comite de Jornaleros de Redondo Beach v. City of Redondo Beach,
24 657 F.3d 936, 942 (9th Cir. 2011) (quotation marks and citation omitted).
25 In arriving at these findings and recommendations, the Court carefully reviewed and
26 considered all arguments, points and authorities, declarations, exhibits, statements of undisputed
27 facts and responses thereto, if any, objections, and other papers filed by the parties. Omission of
28 reference to an argument, document, paper, or objection is not to be construed to the effect that this
1 Court did not consider the argument, document, paper, or objection. This Court thoroughly
2 reviewed and considered the evidence it deemed admissible, material, and appropriate.
3 III.
4 DISCUSSION
5 A. Summary of Plaintiff’s Complaint
6 Dr. Marlyn Conanan admitted Plaintiff suffered a serious physical injury that required
7 medical need, and despite that professional knowledge that he required rest to prevent further
8 injury and heal from his rib fractures, he failed to ensure Plaintiff received an activity
9 modification/lay in order.
10 On May 12, 2016, despite the need for Plaintiff to needed rest to heal from his rib
11 fractures, Dr. Conanan prescribed that Plaintiff was functional on the yard. Dr. Conanan falsely
12 swore to providing Plaintiff an activity modification/lay in order on May 5, 2016, signing a
13 request for urgent referral to a pulmonologist, and that Plaintiff did not suffer pneumonia or
14 atelectasis under her care.
15 B. Statement of Undisputed Facts
16 1. At the times pertinent to the complaint, Plaintiff Dennis Hisle was an inmate at
17 Pleasant Valley State Prison (PVSP).1 (ECF No. 1)
18 2. Defendant M Conanan was one of Hisle’s primary care physicians at the times
19 pertinent to the complaint.2 (ECF No. 1 at 2; declaration of Defendant M. Conanan in support of
20 motion for summary judgment (Conanan Decl.) ¶ 3.)
21 3. In the underlying screening order, the Court found that Hisle brings a claim for
22 deliberate indifference against Dr. Conanan for falsification of medical records, failure to provide
23 Hisle with a lay-in, and failure to urgently refer Hisle to pulmonologist. (ECF No. 6 at 4:8-10.)
24 4. Hisle testified that he believed that a lay-in was medically necessary to treat his
25
1 Plaintiff’s proposed dispute is non-responsive as this fact merely establishes where Plaintiff resided at the time of
26
the complaint.
27 2 Plaintiff attempts to dispute this fact by stating that Dr. Conanan was his sole primary care provider and was solely
responsible for his health care treatment; however, such dispute is not material because the material issue in this
28 motion is Dr. Conanan’s role, not whether other physicians also performed that role.
1 broken ribs.3
2 5. Hisle testified that he believed that he needed to see a pulmonologist to treat
3 pneumonia, broken ribs, and a progressive lung collapse. (Faulconer Decl. ¶ 2, Ex. A, Hisle
4 Depo. at 40:18-41:9.)
5 6. On April 28, 2016, Hisle was found unconscious on the day room floor. Hisle had
6 experienced possible loss of consciousness, a head contusion, and head trauma. Treatment and
7 Triage Area staff noted that Hisle had swelling to the back of his head and right side of his face.
8 Staff transferred Hisle to Community Regional Medical Center in Fresno by ambulance for
9 treatment of possible head trauma later that evening. (Conanan Decl. ¶ 3; Declaration of H.
10 Smith, Custodian of Records from Valley State Prison (Smith Decl.), Ex. B to Faulconer Decl. ¶
11 3, Ex. 1, Treatment and Triage Medical Records dated April 28, 2016.)
12 7. On May 2, 2016, Dr. Conanan gave Hisle a medical evaluation after his release
13 from Community Regional Medical Center. Dr. Conanan reviewed Hisle’s treatment records
14 from the medical center. Hisle received a CT scan of his chest and abdomen when he was at the
15 medical center, and the results of those tests were normal and did not indicate that he had any
16 fractured ribs. The medical center provided a differential diagnosis that could include pneumonia;
17 however, a differential diagnosis is not an actual diagnosis because a differential diagnosis is
18 meant to assess other explanations for a patient’s symptoms. During his appointment with Dr.
19 Conanan, Hisle was alert and oriented but complained of pain in his right chest below his rib cage
20 and stated he heard a popping noise and thought he had pneumonia. Dr. Conanan evaluated Hisle,
21 including his temperature, oxygenation, pulmonary condition, and other factors, but did not
22 believe that Hisle presented with broken ribs or pneumonia. Based on Hisle’s report of chest
23 pain, Dr. Conanan ordered a chest x-ray and scheduled him for a follow-up appointment. Hisle
24 testified that he saw Dr. Conanan on May 2, 2016, and that the summary of the record was
25 accurate. (Conanan Decl. ¶ 4; Smith Decl., Ex. B to Faulconer Decl., ¶ 3, Exhibit 2, Medical
26 Progress Note dated May 2, 2016; Faulconer Decl., ¶ 2, Ex. A, Hisle Depo. at 47:3-49:14.)
27 3 Although Plaintiff attempts to dispute this fact by stating his opinion is not relevant to the legal determination at
issue in this motion, the testimony speaks for itself. (Declaration of John Faulconer (Faulconer Decl.) ¶ 2, Ex. A,
28 Deposition Transcript of Plaintiff Dennis Hisle (Hisle Depo.) at 34:5-9.)
1 8. On May 9, 2016, Mr. Hisle refused to take pain medication and signed a form that
2 he knowingly rejected the medication. Hisle testified that he refused the medication to know
3 whether it was hiding something he should know about. (Conanan Decl. ¶ 7; Smith Decl., Ex. B
4 to Faulconer Decl., ¶ 3, Ex. 5, Hisle Refusal of Treatment form dated May 9, 2016; Faulconer
5 Decl., ¶ 2, Ex. A, Hisle Depo. at 57:19-58:11.)
6 9. On May 12, 2016, Dr. Conanan had a follow-up appointment to check on the
7 progress of Hisle’s rib fractures. Dr. Conanan performed an evaluation and found that Hisle was
8 alert and oriented to time, place, and date, was ambulatory, had no shortness of breath, no nausea
9 or vomiting, was able to talk in complete sentences, didn’t have a fever, was oxygenating
10 normally, and did not have nausea or vomiting. Dr. Conanan conducted an examination of Mr.
11 Hisle’s pulmonary system. Hisle reported right subcoastal pain, pain when he took deep breaths,
12 and experienced an occasional cough with thick mucus. Due to Hisle’s pain complaints, Dr.
13 Conanan ordered another x-ray to determine if the rib fractures were healing and directed him to
14 continue taking his prescribed pain medications. Dr. Conanan determined that Hisle was
15 functional on the prison yard. Dr. Conanan determined that Hisle’s physical symptoms were not
16 consistent with pneumonia. Dr. Conanan scheduled Hisle for a follow-up appointment on May
17 19, 2016. Hisle testified that he did see Dr. Conanan on May 12, 2016, and agreed that he
18 reported pain, breathing issues, and coughing mucus, that he received a Z-Pak, that he was
19 ambulatory, was provided treatment for his pain, and was ordered another x-ray, but believed that
20 Dr. Conanan’s course of care regarding his rib injury was not appropriate. (Conanan Decl. ¶ 8;
21 Smith Decl., Ex. B to Faulconer Decl., ¶ 3, Ex. 6, Medical Progress Note dated May 12, 2016;
22 Faulconer Decl., ¶ 2, Ex. A, Hisle Depo. at 59:15-61:25.)
23 10. Dr. Conanan did not treat Hisle on May 20, 2016, but Hisle met with Dr. J. George
24 in the Treatment and Triage Area and reported additional symptoms, including “mild” shortness
25 of breath, a “thump” over his ribs, “chills,” and “night sweats,” that were not reported on May 19.
26 Dr. George had Mr. Hisle transported to Mercy Hospital for a pulmonary evaluation to “rule out
27 pneumonia.” Based on Dr. Conanan’s experience and practice as a primary care physician, the
28 indication to “rule out pneumonia” does not mean that the patient has been diagnosed with
1 pneumonia. Rather, it indicates that Dr. George wanted a second opinion from a specialist as to
2 whether Hisle had pneumonia. Based upon Dr. Conanan’s pattern and practice, when she orders a
3 patient to be transferred, the physician on duty at time of the actual transfer would sign the
4 transfer, not necessarily order the transfer. Based upon the medical records and that pattern of
5 practice, it appears that Dr. George’s transfer was facilitating Dr. Conanan’s referral. Hisle
6 testified that he was sent to see a pulmonologist on May 20, 2016, and that he was diagnosed with
7 pneumonia upon his arrival at the hospital in May 2016, and might have received a pneumonia
8 diagnosis prior to that time. (Conanan Decl. ¶ 11; Smith Decl., Ex. B to Faulconer Decl. ¶ 3, Ex.
9 9, Medical Order and Progress Note by Dr. George dated May 20, 2016; Faulconer Decl., ¶ 2, Ex.
10 A, Hisle Depo. at 35:8-20, 63:6-12.)
11 11. Dr. Conanan is aware that Hisle has accused her of being deliberately indifferent
12 to his serious medical needs and falsifying medical records and denies those claims. (Conanan
13 Decl. ¶ 13.)
14 12. Hisle testified that on May 12, 2016, despite being in pain, that he was walking
15 around because “[he] had to. [He] wasn’t under a lay-in. [He] had to.” (Faulconer Decl. ¶ 2, Ex.
16 A, Hisle Depo. at 23:19-25, 59:15-60:5.)
17 13. Hisle testified that before he was transferred from PVSP on May 20, 2016, Hisle
18 met with an unnamed radiologist who contacted his supervisor because of the seriousness of his
19 condition which was being seemingly being ignored by his primary care provider. Hisle also
20 testified that by May 19, 2016, he was in severe distress. (Faulconer Decl. ¶ 2, Ex. A, Hisle
21 Depo. at 62:14-20; 64:20-66:6.)
22 14. On January 13, 2020, Hisle submitted a CDCR 602 grievance regarding the
23 allegations of this lawsuit. (Smith Decl., Ex. B to Faulconer Decl., ¶ 3, Ex. 10, CDCR 602
24 grievance by Hisle dated January 13, 2020.)
25 15. On January 14, 2020, Hisle was issued a letter directing him to resubmit his
26 grievance as a medical grievance. (Smith Decl., Ex. B to Faulconer Decl. ¶ 3, Ex. 11, Appeals
27 Letter regarding grievance dated January 14, 2020.)
28 16. On January 27, 2020, Hisle submitted a Health Care grievance regarding the
1 allegations of this lawsuit. (Smith Decl., Ex. B to Faulconer Decl., ¶ 3, Ex. 12, Health Care
2 Grievance by Hisle dated January 27, 2020.)
3 17. On June 3, 2020, a California Correctional Health Care Services Headquarters
4 response regarding Hisle’s medical grievance indicated that no intervention would be taken. and
5 that Hisle’s administrative remedies had been exhausted. (Smith Decl., Ex. B to Faulconer Decl.
6 ¶ 3, Ex. 13, California Correctional Health Care Services Headquarters’ Level Response dated
7 June 3, 2020.)
8 18. Hisle is serving a term with the possibility of parole. Faulconer Decl. ¶ 2, Ex.
9 A, Candler Depo. at 18:19-20.)
10 C. Analysis of Defendant’s Motion
11 Defendant argues: (1) Plaintiff’s claim fails as a matter of law; (2) the evidence
12 establishes that a lay-in is treatment for broken ribs and a referral to a pulmonologist is treatment
13 for possible pneumonia and the allegations amount to nothing more than a difference of opinion;
14 (3) the claims violate the applicable statute of limitations; and (4) she is entitled to qualified
15 immunity.
16 In opposition, Plaintiff argues that his claims could not have accrued until he received
17 records in which Dr. Conanan claimed to have provided him with a lay-in or referral to a
18 pulmonologist. (ECF No. 71 at 3-4.) Plaintiff also argues the failure to provide a lay-in or
19 referral to a pulmonologist amounted to deliberate indifference, and Dr. Conanan is not entitled to
20 qualified immunity.
21 In response, Defendant argues Plaintiff has failed to create a material dispute of fact as he
22 concedes she provided him with medical care, including multiple evaluations, pain treatment, and
23 Plaintiff’s has failed to overcome the statute of limitations bar.
24 1. Statute of Limitations
25 Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state’s statute of
26 limitations for personal injury actions. Jones v. Blanas, 393 F.3d 918, 927 (9th Cir. 2004). The
27 statute of limitations for civil actions filed in California is two years, as set forth at California
28 Civil Procedure Code Section 335.1, which is the applicable statute in section 1983 actions.
1 Maldonado v. Harris, 370 F.3d 945, 954 (9th Cir. 2004). The federal court also applies the forum
2 state’s law regarding tolling, including equitable tolling, when not in conflict with federal law.
3 Hardin v. Straub, 490 U.S. 536, 537-39 (1989); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir.
4 1999). California provides that the applicable limitations period is tolled for two years on grounds
5 of “disability” when a litigant is incarcerated for less than a term of life. Cal. Code Civ. P. §
6 352.1(a). California also applies equitable tolling when a plaintiff voluntarily pursues alternative
7 remedies where the first claim is filed within the statutory period. Garber v. City of Clovis, 698 F.
8 Supp. 2d 1204, 1213 (E.D. Cal. 2010) (citing McDonald v. Antelope Valley Community College
9 Dist., 45 Cal. 4th 88, 101 (2008)); Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (statute of
10 limitations is tolled while prisoner completes mandatory exhaustion process).
11 Federal law determines when a cause of action accrues and the statute of limitations
12 begins to run in a section 1983 action. Wallace v. Kato, 549 U.S. 384, 388 (2007); Elliott v. City
13 of Union City, 25 F.3d 800, 801-02 (9th Cir. 1994). Under federal law, a claim generally accrues
14 when the plaintiff knows or has reason to know of the injury which is the basis of the action.
15 TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999); Bibeau v. Pac. N.W. Research Found.
16 Inc., 188 F.3d 1105, 1108 (9th Cir. 1999) (because a plaintiff must be diligent in discovering
17 critical facts about his claim, one who did not know of his claim will be barred if he should have
18 known of it in the exercise of due diligence).
19 “A statute of limitations is subject to the doctrine of equitable tolling; therefore, relief
20 from strict construction of a statute of limitations is readily available in extreme cases and gives
21 the court latitude in a case-by-case analysis.” Scholar v. Pacific Bell, 963 F.2d 264, 268 (9th Cir.
22 1992). “The equitable tolling doctrine has been applied by the Supreme Court in certain
23 circumstances, but it has been applied sparingly; for example, the Supreme Court has allowed
24 equitable tolling when the statute of limitations was not complied with because of defective
25 pleadings [or] when a claimant was tricked by an adversary into letting a deadline expire. . .” Id.
26 Courts have been generally unforgiving, however, when a late filing is due to claimant's failure
27 “to exercise due diligence in preserving his legal rights.” Id. (citation omitted).
28 Here, because Plaintiff is incarcerated for a term less than life, he had four years to file his
1 suit. (UF 18.) Defendant argues the accrual dates of Plaintiff’s claims regarding the lay-in order
2 and referral to a pulmonologist are both in May 2016. (ECF No. 65-3 at 19.) Plaintiff argues that
3 his could not have accrued until he reviewed records in which Defendant claimed to have
4 provided him a lay-in or referral to a pulmonologist. In response, Defendant argues that
5 Plaintiff’s review of medical records, or information regarding Defendant’s position is immaterial
6 because Plaintiff, by his own testimony, established that he knew or had reason to know of the
7 injuries in May 2016 which form the basis of his claims.
8 It is undisputed that on May 2, 2016, Dr. Conanan gave Hisle a medical evaluation after
9 his release from Community Regional Medical Center. Dr. Conanan reviewed Hisle’s treatment
10 records from the medical center. Hisle received a CT scan of his chest and abdomen when he was
11 at the medical center, and the results of those tests were normal and did not indicate that he had
12 any fractured ribs. The medical center provided a differential diagnosis that could include
13 pneumonia; however, a differential diagnosis is not an actual diagnosis because a differential
14 diagnosis is meant to assess other explanations for a patient’s symptoms. During his appointment
15 with Dr. Conanan, Hisle was alert and oriented but complained of pain in his right chest below his
16 rib cage and stated he heard a popping noise and thought he had pneumonia. Dr. Conanan
17 evaluated Hisle, including his temperature, oxygenation, pulmonary condition, and other factors,
18 but did not believe that Hisle presented with broken ribs or pneumonia. Based on Hisle’s report
19 of chest pain, Dr. Conanan ordered a chest x-ray and scheduled him for a follow-up appointment.
20 Hisle testified that he saw Dr. Conanan on May 2, 2016, and that the summary of the record was
21 accurate. (UF 7.)
22 On May 9, 2016, Mr. Hisle refused to take pain medication and signed a form that
23 he knowingly rejected the medication. Hisle testified that he refused the medication to know
24 whether it was hiding something he should know about. (UF 8.)
25 On May 12, 2016, Dr. Conanan had a follow-up appointment to check on the
26 progress of Hisle’s rib fractures. Dr. Conanan performed an evaluation and found that Hisle was
27 alert and oriented to time, place, and date, was ambulatory, had no shortness of breath, no nausea
28 or vomiting, was able to talk in complete sentences, didn’t have a fever, was oxygenating
1 normally, and did not have nausea or vomiting. Dr. Conanan conducted an examination of Mr.
2 Hisle’s pulmonary system. Hisle reported right subcoastal pain, pain when he took deep breaths,
3 and experienced an occasional cough with thick mucus. Due to Hisle’s pain complaints, Dr.
4 Conanan ordered another x-ray to determine if the rib fractures were healing and directed him to
5 continue taking his prescribed pain medications. Dr. Conanan determined that Hisle was
6 functional on the prison yard. Dr. Conanan determined that Hisle’s physical symptoms were not
7 consistent with pneumonia. Dr. Conanan scheduled Hisle for a follow-up appointment on May
8 19, 2016. Hisle testified that he did see Dr. Conanan on May 12, 2016, and agreed that he
9 reported pain, breathing issues, and coughing mucus, that he received a Z-Pak, that he was
10 ambulatory, was provided treatment for his pain, and was ordered another x-ray, but believed that
11 Dr. Conanan’s course of care regarding his rib injury was not appropriate. (UF 9.)
12 It is further undisputed that Plaintiff testified that on May 12, 2016, despite being in pain,
13 that he was walking around because “[he] had to. [He] wasn’t under a lay-in. [He] had to.” (UF
14 12.) Thus, the evidence establishes that Plaintiff was aware that Dr. Conanan was his primary
15 care physician as she evaluated him three times prior to May 20, 2026. Accordingly, Plaintiff’s
16 claim regarding Defendant’s failure to provide him with a lay-in accrued on May 12, 2026-the
17 date he admittedly knew he was in pain because he was forced to walk due to the lack of a lay-in
18 order by Dr. Conanan. This finding is further supported by the fact that when he returned from
19 the hospital after the initial incident (which occurred on April 28, 2016), he was provided a lay-in
20 from a nurse, so he knew it was a possibility. (Hisle Depo. at 23:19-25; 59:15-60:5.)
21 Consequently, as of May 12, 2016, Plaintiff knew or has reason to know all the necessary
22 information to indicate that a lay-in was not provided.
23 With regard to the referral of a pulmonologist, it is undisputed that Plaintiff testified that
24 he saw a pulmonologist upon his transfer from PVSP on May 20, 2016, and was diagnosed with
25 pneumonia in May 2016-if not prior to then. (UF 10.) It is further undisputed that Plaintiff
26 testified that he spoke with an unnamed radiologist before May 20, 2016, who contacted his (the
27 radiologist’s) supervisor because of the seriousness of Hisle’s condition which was being ignored
28 by his primary care physician (Dr. Conanan). (UF 2, 13.) Hisle testified that by May 19, 2016,
1 he was in severe distress. (UF 13.) Thus, by May 20, 2016, Hisle’s claim regarding a referral to
2 a pulmonologist accrued. Hisle did not need to know the specifics of his diagnosis or what the
3 specific referral he thought he required, he just needed reason to discover his claim against Dr.
4 Conanan. Hisle testified that, all by May 20, 2016, he was in severe distress, had a conversation
5 with a radiologist who indicated that his condition was severe and ignored by Dr. Conanan, saw a
6 pulmonologist after a transfer out of PVSP, and was diagnosed with pneumonia. As of the date of
7 May 20, 2016, Hisle reasonably had all the information he needed to complete the deliberate
8 indifference cause of action and its elements regarding the pulmonology referral issue. Further,
9 any claim that medical records were falsified is not an individual claim and has no relevance to
10 the analysis. See Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir. 1980) (holding “the
11 existence of a false police report ... does not by itself deprive[ ] a person of a right secured by the
12 Constitution and its laws.”); Evans v. Diaz, No. 1:22-CV-00291 ADA BAM PC, 2022 WL
13 17417816, at *12 (E.D. Cal. Dec. 5, 2022) (failure to state a claim for fabricated medical
14 reasoning in medical report); Martin v. Pfeiffer, No. 1:22-CV-00889 AWI BAM PC, 2022 WL
15 4345686, at *8 (E.D. Cal. Sept. 19, 2022); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC),
16 2021 WL 1172911, at *7 (E.D. Cal. Mar. 29, 2021) (denying a claim alleging falsified medical
17 report and statements made by Plaintiff), denying to adopt on other grounds, Sanford v. Eaton,
18 No. 1:20-CV00792-JLT BAM(PC), 2022 WL 168530, at *2 (E.D. Cal. Jan. 19, 2022).
19 As Hisle had an accrual date of May 20, 2016 (allowing for the more conservative date
20 applying to the lay-in claim as well), he had until May 20, 2020, to file his lawsuit. Because
21 Plaintiff filed the lawsuit on November 22, 2021, 551 days after the deadline, he failed to comply
22 with the 4-year statute of limitations.
23 a. Tolling of Limitations Period
24 “Equitable tolling under California law operates independently of the literal wording of
25 the Code of Civil Procedure to suspend or extend a statute of limitations as necessary to ensure
26 fundamental practicality and fairness.” Jones v. Blanas, 393 F.3d at 928 (citing Lantzy v. Centex
27 Homes, 31 Cal.4th 363 (2003)) (cleaned up). “The purpose of California’s equitable tolling
28 doctrine ‘is to soften the harsh impact of technical rules which might otherwise prevent a good
1 faith litigant from having a day in court.’ ” Id. (citing Daviton v. Columbia/HCA Healthcare
2 Corp., 241 F.3d 1131, 1137 (9th Cir. 2001) (en banc)).
3 “Under California law, a plaintiff must meet three conditions to equitably toll a statute of
4 limitations: (1) defendant must have had timely notice of the claim; (2) defendant must not be
5 prejudiced by being required to defend the otherwise barred claim; and (3) plaintiff’s conduct
6 must have been reasonable and in good faith.” Fink v. Shedler, 192 F.3d 911, 916 (9th Cir. 1999)
7 (citation omitted); see also Lantzy, 31 Cal.4th 363 at 370 (“This court has applied equitable
8 tolling in carefully considered situations to prevent the unjust technical forfeiture of causes of
9 action, where the defendant would suffer no prejudice.”).
10 Prisoners are also entitled to tolling during the exhaustion of mandatory administrative
11 remedies. Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005) (“the applicable statute of
12 limitations must be tolled while a prisoner completes the mandatory [administrative] exhaustion
13 process” required under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a)).
14 The first instance that Hisle raised the issue that Dr. Conanan failed to provide him a lay-
15 in or refer him to a pulmonologist was in an opposition to a motion for summary judgment in
16 Hisle v. Conanan, Case No. 1:17-cv-01400 DAD SAB (PC) (“Hisle I”) on August 16, 2019. (ECF
17 No. 84.) Hisle did not lodge an amended complaint regarding these allegations until March 19,
18 2020, but, giving Plaintiff the benefit of any doubt, the Court will use the earlier date for tolling
19 purposes. On November 6, 2020, in Hisle I, the Court adopted findings and recommendations in
20 full that Hisle’s claims at issue were dismissed with prejudice due to a failure to exhaust his
21 administrative remedies. (ECF No. 136.) During that time, Plaintiff submitted an administrative
22 grievance regarding his allegations on January 13, 2020, which was fully exhausted by June 3,
23 2020. (UF 14, 17.) Providing Plaintiff the most conservative period of tolling, from August 16,
24 2019 (first time raised issues) and November 20, 2020 (when the claims were dismissed without
25 prejudice), results in 448 days of tolling. However, the instant action was filed 551 days after the
26 accrual, Plaintiff claims are 103 days beyond the applicable statute of limitations.
27 Plaintiff argues that he could not have known until July 30, 2018, at his deposition that
28 “Dr. Conanan lied about providing a lay-in activity modification to plaintiff on 5-5-2016.” (ECF
1 No. 71:7-11.) However, Plaintiff’s lay-in claim is not whether Dr. Conanan lied about providing
2 a lay-ion order, the claim is whether a lay-in was provided at all. Indeed, the testimony relied in
3 support of Plaintiff’s argument belies his contention. In reference to his treatment in 2016,
4 Plaintiff stated “I was never given a lay-in at this point or any point beyond this date. So why
5 she’s got here a lay-in was given to patient, I have no idea. That isn’t true, no.” (ECF No. 71 at
6 16-17.) Thus, as of the deposition, Hisle already knew that he wasn’t given a lay-in by Dr.
7 Conanan, and when presented with evidence of a lay-in, he affirmatively denied that evidence.
8 Plaintiff did not claim that he was unaware that a lay-in possible, or that he wasn’t aware that he
9 could have been provided that care, he testified Dr. Conanan didn’t give him a lay-in. Hisle
10 testified that in May 2016 he was in pain, that he didn’t have a lay-in, and that Dr. Conanan was
11 his primary care physician. Therefore, his claim accrued by May 20, 2016.
12 Plaintiff’s reliance on Klein v. City of Beverly Hills, 865 F.3d 1276 (9th Cir. 2017) to
13 establish that “the “discovery rule” requires that a claim accrues when the underlying affidavit or
14 material evidence is made available” is inapplicable. (ECF No. 71 at 10:12-14.) Klein addresses
15 the elements of a judicial deception claim, not deliberate indifference claim. (Id. at 1278-1279.)
16 b. Relation-Back Under Rule 15
17 Plaintiff argues that his claims relate back to the filing of the initial complaint in, or first
18 amended complaint.
19 In certain circumstances, an amended pleading can relate back to an original pleading for
20 purposes of the statute of limitations. See Butler v. Nat’l Cmty. Renaissance of Cal., 766 F.3d
21 1191, 1201-04 (9th Cir. 2014) (discussing relation back principles under federal and California
22 law); see also Fed. R. Civ. P. 15(c). An amendment relates back if it “asserts a claim or defense
23 that arose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the
24 original pleading.” Fed. R. Civ. P. 15(c)(1)(B); see also Fed. R. Civ. P. 15(c)(1)(C) (amendment
25 changing identity or name of party relates back only if Rule 15(c)(1)(B) is satisfied).
26 The original complaint in Hisle I was filed on October 17, 2017, and the first amended
27 complaint was filed on November 22, 2017, and neither of them mentioned a lay-in or a
28 pulmonologist referral. (ECF Nos. 1, 7.)
1 First, Rule 15(c) does not apply because the Hisle I complaint is not an “original
2 pleading” in this case, and at the time the initial complaint in Hisle I was filed, Hisle’s claims had
3 already accrued as described above and his failure to bring the claims is his own lack of diligence.
4 Second, the claims re regarding a lay-in and pulmonologist referral at issue in this case,
5 and presented within the August 16, 2019, opposition in Hisle I, did not arise out of the same
6 conduct, transaction, or occurrence as the initial complaint in Hisle I. Rather, the allegations in
7 this case represent discrete and separate conduct of which Plaintiff was aware since May 20,
8 2016. Additionally, in Hisle I, the Court ordered Hisle’s allegations regarding the lay-in and
9 pulmonological referral be dismissed as unexhausted while later finding Plaintiff’s allegations
10 regarding Dr. Conanan’s care did not arise are not from the same transaction or occurrence. (ECF
11 No. 136 in Hisle I.) Indeed, as stated in the Findings and Recommendation with regard to
12 Defendant’s prior motion to dismiss, the Court rejected Defendant’s argument and disagreed with
13 the characterization that “[a] plain reading of the compl[a]int demonstrates that Hisle’s claim is
14 based on the alleged actions of Defendants during the litigation Hisle I.” (ECF No. 25 at 5:17-18.)
15 The Court found that while “Defendant argues that Plaintiff’s claim revolve around the actions
16 taken in Plaintiff’s previous case, Defendant overlooks the other allegations presented in the
17 operative complaint.” (Id. 25:7-8.)
18 Accordingly, Plaintiff’s claims in this case do not relate back to the original filing in Hisle
19 I, and his claims are untimely.
20 2. Deliberate Indifference to Serious Medical Need
21 As previously stated, Plaintiff contends that Dr. Conanan failed to provide him with a lay-
22 in order and urgent referral to a pulmonologist.4,5
23 4 Plaintiff also claims that his medical records were falsified. However, as explained above, there is no constitutional
violation for alleged false medical records. Thus, Plaintiff’s medical record evidence does not demonstrate that Dr.
24
Conanan was deliberately indifferent to Plaintiff’s medical needs. Instead, Plaintiff’s opposition disputes the need
for a lay-in and referral to a pulmonologist, but a difference of medical opinion between an inmate and prison
25 medical personnel regarding appropriate medical diagnosis and treatment is not enough to establish a deliberate
indifference claim. Sanchez, 891 F.2d at 242; Toguchi, 391 F.3d at 1058.
26
5 Plaintiff argues that the finding and recommendations in Hisle I establish that there is a disputed fact regarding the
27
issue of the lay-in and pulmonologist referral. However, in Hisle I, the Court recommended, at that time, that there
was a dispute of fact whether Dr. Conanan provided the lay-in order or pulmonologist referral but did not reach
28 whether those activities by Dr. Conanan established treatment or serious medical needs themselves. The evidence
1 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in
2 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate
3 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
4 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate
5 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure
6 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and
7 wanton infliction of pain,’ ” and (2) “the defendant’s response to the need was deliberately
8 indifferent.” Jett, 439 F.3d at 1096.
9 A defendant does not act in a deliberately indifferent manner unless the defendant “knows
10 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825,
11 837 (1994). “Deliberate indifference is a high legal standard,” Toguchi v. Chung, 391 F.3d 1051,
12 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond to a
13 prisoner's pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at
14 1096. In applying this standard, the Ninth Circuit has held that before it can be said that a
15 prisoner's civil rights have been abridged, “the indifference to his medical needs must be
16 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this cause
17 of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S.
18 at 105–06). Even gross negligence is insufficient to establish deliberate indifference to serious
19 medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990).
20 Further, a “difference of opinion between a physician and the prisoner—or between
21 medical professionals—concerning what medical care is appropriate does not amount to
22 deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.
23 Vild, 891 F.2d 240, 242 (9th Cir. 1989)), overruled in part on other grounds, Peralta v. Dillard,
24 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 680 F.3d 1113, 1122–23 (9th Cir.
25 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). Rather, Plaintiff “must
26 show that the course of treatment the doctors chose was medically unacceptable under the
27
demonstrates these activities are treatment and Hisle does not offer admissible evidence to rebut Dr. Conanan’s
28 evidence.
1 circumstances and that the defendants chose this course in conscious disregard of an excessive
2 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation
3 marks omitted).
4 Construing the evidence in a light most favorable to Plaintiff, he fails to demonstrate
5 evidence that Dr. Conanan subjectively knew and disregarded an excessive risk to Plaintiff’s
6 health and safety. Rather, Plaintiff’s evidence demonstrates Dr. Conanan provided extensive
7 treatment for his rib injuries and possible pneumonia in May 2016. Indeed, it is undisputed that
8 Dr. Conanan evaluated him on May 2, 5, and 12, 2026. (UF 7, 9; Hisle Depo. at 51:4-53:5;
9 56:15-57:15.) In addition, although Plaintiff did not recall seeing Dr. Conanan on May 19, 2016,
10 the medical records demonstrate (Smith Decl., Ex. B to Faulconer Decl. Ex. 8; Hisle Depo. at
11 62:14-20.) Further, Plaintiff does not dispute that he rejected pain medication during his
12 treatment. (UF 8.) There is no evidence she purposefully and substantially failed to provide care.
13 Although Hisle complained of similar symptoms at the evaluations, Dr. Conanan always provided
14 medical treatment in response to Hisle’s complaints. The evidence shows that Dr. Conanan
15 provided Hisle extensive medical care, regarding his broken ribs and pulmonological issues, and
16 provided treatment to resolve those issues. However, even if Dr. Conanan failed to provide a lay-
17 in or pulmonologist referral she otherwise provided extensive medical care regarding the
18 underlying serious medical needs and did not deny care.
19 Moreover, Plaintiff fails to address the fact that a lay-in order and referral to a
20 pulmonologist are not a serious medical needs, but, rather, demands for specific treatment for
21 underlying serious medical needs which is not a claim. In fact, Plaintiff himself testified that the
22 lay-in and pulmonologist referral were meant for treatment. (UF 4, 5.) Plaintiff’s belief that Dr.
23 Conanan’s treatment fell beneath the standard of care because he should have been provided
24 different treatment is a classic example of a matter for medical judgment. Estelle v. Gamble, 429
25 U.S. at 107. The disagreement with and/or failure to provide specific medical treatment
26 represents a different of opinion which is not a constitutional violation.6 See Sanchez v. Vild, 891
27
6 Failure to provide a referral can be a serious medical need under the Eighth Amendment if it is part of a pattern of
28 conscious disregard for a substantial risk to health. However, the referral is not itself a constitutional violation — the
1 | F.2d 242. Accordingly, Plaintiff has failed to come forth with evidence from which a jury could
2 | reasonably render a verdict in his favor on his claim for deliberate indifference to serious medical
3 | need in violation of the Eighth Amendment. The Court will recommend that Defendant’s motion
4 || for summary judgment be granted, and judgment be entered.’
5 IV.
6 RECOMMENDATIONS
7 Based on the foregoing, it is HEREBY RECOMMENDED that:
8 1. Defendant’s motion for summary judgment, filed November 3, 2025, (ECF No.
9 65), be granted; and
10 2. Judgment be entered in favor of Defendant Dr. Conanan.
11 These Findings and Recommendations will be submitted to the United States District
12 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I). Within fourteen
13 | (14) days after being served with these Findings and Recommendations, the parties may file
14 | written objections with the Court, limited to 15 pages in length, including exhibits. The
15 | document should be captioned “Objections to Magistrate Judge’s Findings and
16 | Recommendations.” The parties are advised that failure to file objections within the specified
17 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39
18 | (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
19 IT IS SO ORDERED. DAA Le
20 | Dated: _July 30, 2026 _
STANLEY A. BOONE
21 United States Magistrate Judge
22
23
24
25
%6 key question is whether Dr. Conanan knew of the serious risk and consciously disregarded it. Without the subjective
knowledge, even a serious condition and refusal to refer may not rise to the level of deliberate indifference.
27 | 7 Because the Court finds Defendant Conanan is entitled to summary judgment on the merits of the Eighth
28 Amendment claims there is no reason to reach whether she is entitled qualified immunity.
17