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Valentine Underwood v. W. J. Sullivan

March 6, 2012

VALENTINE UNDERWOOD,
PLAINTIFF,
v.
W. J. SULLIVAN, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING IN PART PLAINTIFF'S MOTION TO COMPEL (Docs. 108, also resolves Doc. 118.)

ORDER FOR DEFENDANTS NORTHCUTT, TRUITT, AND TRUJILLO TO RESPOND TO PLAINTIFF'S INTERROGATORY NO. 9 WITHIN 45 DAYS

I. RELEVANT PROCEDURAL HISTORY

Valentine Underwood ("Plaintiff") is a prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on July 17, 2008. (Doc. 1.) This action now proceeds on the original Complaint, against defendants Correctional Officer ("C/O") M. Northcutt and C/O S. Martin for retaliation, in violation of the First Amendment; and against defendants C/O M. Northcutt, C/O S. Martin, C/O D. Caviness, C/O A. Trujillo, and C/O P. Truitt, ("Defendants") for use of excessive force, in violation of the Eighth Amendment.*fn1 The parties have consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C. § 636(c), and on June 15, 2011, this case was reassigned to the undersigned for all further proceedings. (Docs. 4, 97, 102.)

On April 11, 2011, the Court issued a Discovery/Scheduling Order establishing a deadline of December 11, 2011, for the parties to complete discovery, including motions to compel. (Doc. 91.) On August 24, 2011, Plaintiff filed a motion to compel. (Doc. 108.) On September 6, 2011, Defendant filed an opposition. (Doc. 109.) On October 11, 2011, Plaintiff filed a reply. (Doc. 115.) Plaintiff's motion to compel is now before the Court.

II. PLAINTIFF'S ALLEGATIONS AND CLAIMS*fn2

Plaintiff's allegations arise from incidents that occurred while he was incarcerated at Kern Valley State Prison ("KVSP") in Delano, California, and the California Correctional Institution ("CCI") in Tehachapi, California.

Plaintiff alleges that on November 21, 2006, defendants C/O Northcutt and C/O Martin approached him because they wanted to know why Plaintiff had been talking to Lieutenant Whitehead the previous day. Plaintiff told Northcutt and Martin that he told Whitehead he was having difficulty with some of the officers, including Northcutt and Martin, since filing an inmate appeal against C/O Hart. Northcutt then pepper sprayed Plaintiff and hit him in the face with the pepper spray can. Martin struck Plaintiff repeatedly with his baton. Plaintiff tried to hit back, and then lay down on the floor on his stomach. Northcutt and Martin continued to kick and punch Plaintiff. Plaintiff alleges that defendants Caviness, Trujillo, and Truitt also kicked and struck him. Plaintiff was pepper sprayed again, had a bag pulled over his head, and was then handcuffed.

Lieutenant Whitehead instructed two officers to escort Plaintiff to the clinic, where Dr. Dileo had Plaintiff's head, left hand, and ribs x-rayed. Dr. Dileo also cleaned the bite wound on Plaintiff's right hand, gave him a tetanus shot, and sutured the area above Plaintiff's right eye. Dr. Dileo gave Plaintiff some painkillers and a vest to wear over his rib area. Plaintiff alleges that he also had a swollen left hand, fingers and wrist; lumps all over his head; scratches and abrasions on his lower back; and bruises all over his body. He also bled from the cut above his right eye, from his nose, and from his right hand. Plaintiff alleges that he suffered from blurred vision, lower back pain, and nose bleeds as a result of the assault.

Plaintiff alleges that for several days after November 24 or 25, he asked for medical care because his injuries caused him pain and received painkillers on November 29, 2006. Plaintiff was seen by Dr. Akano on December 13, 2006, and he told Dr. Akano that he was suffering from blurred vision and lower back pain, and that the bite on his right hand had become infected. Dr. Akano prescribed painkillers and a cream. Plaintiff continued to seek additional medical care. On January 31, 2007, Dr. Akano prescribed Plaintiff painkillers for his lower back pain, and ordered another x-ray of Plaintiff's back. On February 6, 2007, Plaintiff had his lower back x-rayed.

Plaintiff alleges that defendant Northcutt confiscated his mail out of retaliation. On February 4, 2007, Plaintiff filed an inmate appeal after having his incoming and outgoing mail disappear, and after finding that defendant Northcutt had been reassigned to the mail room after the November 21, 2006, incident.

On March 13, 2007, Plaintiff was transferred to CCI. After Plaintiff arrived at CCI, he was referred to a nerve specialist for the bite on his right hand, an orthopedic surgeon for injuries to his right hand and right elbow, and for physical therapy for lower back pain.

Excessive Force Claim

Plaintiff brings an excessive force claim against defendants Northcutt, Martin, Caviness, Trujillo, and Truitt. "What is necessary to show sufficient harm for purposes of the Cruel and Unusual Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . ." Hudson v. McMillian, 503 U.S. 1, 8 (1992). "The objective component of an Eighth Amendment claim is . . . contextual and responsive to contemporary standards of decency." Id. (internal quotation marks and citations omitted). The malicious and sadistic use of force to cause harm always violates contemporary standards of decency, regardless of whether or not significant injury is evident. Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth Amendment excessive force standard examines de minimis uses of force, not de minimis injuries)). However, not "every malevolent touch by a prison guard gives rise to a federal cause of action." Id. at 9. "The Eighth Amendment's prohibition of cruel and ...


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