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Gary andre Lacy v. H. Tyson

March 30, 2012


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



Gary Andre Lacy ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action now proceeds on the Second Amended Complaint, filed on April 28, 2009, against defendants Correctional Officers R. Reyna, T. Reyna, and N. Correa; Correctional Sergeants J. Peacock, M. Bremnar, and M. Brookwalter; Captain H. Tyson; Medical Technician Assistant (MTA) Aspeitia; and Doctor I. Patel; on Plaintiff's claims for excessive force, retaliation, and deliberate indifference to serious medical needs.*fn1 (Doc. 16.)

On October 7, 2010, the Court issued a Scheduling Order establishing a deadline of March 18, 2011, for the parties to complete discovery.*fn2 (Doc. 36.) On February 8, 2011, Plaintiff filed a motion to compel responses to interrogatories. (Doc. 59.) On February 14, 2011, the Court entered an order staying this entire action and vacating Plaintiff's motion to compel. (Doc. 63.) On September 7, 2011, the Court lifted the stay and reinstated Plaintiff's motion to compel. (Doc. 72.) On October 7, 2011, Defendants filed an opposition to the motion to compel. (Doc. 84.) On October 19, 2011, Plaintiff filed a reply to the opposition. (Doc. 87.) Plaintiff's motion to compel is now before the Court.


Allegations in the Second Amended Complaint In the Second Amended Complaint, Plaintiff sues Kern Valley State Prison (KVSP) employees: Captain H. Tyson; Chief Deputy N. Dill; Correctional Sergeants M. Bremnar, M. Brookwalter, and J. Peacock; Correctional Officers R. Reyna, T. Reyna, E. Heanacho, and N. Correa; Medical Technician Assistant (MTA) Aspeitia; and Doctor I. Patel (Doc. 16 at 3).

Plaintiff alleges the following facts. On January 27, 2006, R. Reyna approached Plaintiff during chow and demanded that Plaintiff leave his food at the table and exit the dining hall. Once outside, R. Reyna cuffed Plaintiff and slammed his face into the brick wall several times. R. Reyna then stated, "write this one up too[,]" referring to the fact that Plaintiff previously filed a complaint against R. Reyna for misconduct. R. Reyna then twisted Plaintiff's hands and arms above his head, causing severe pain. R. Reyna then escorted Plaintiff to the program office to be assaulted further by other officers. Once Plaintiff was inside the program office, he was "shoved" inside the holding cage and strip searched. R. Reyna and Correa "twisted and jerked" Plaintiff's arms high in the air, causing pain. Plaintiff then told Peacock, Bremnar, Brookwalter, and T. Reyna that he was just assaulted. Tyson was notified of Plaintiff's allegation and, while Tyson stood in the hallway "supervising," Plaintiff was slammed into the walls and to the ground by Peacock, Bremnar, Brookwalter, R. Reyna, and T. Reyna. Brookwalter, Bremnar, R. Reyna, and T. Reyna then dragged Plaintiff out of the holding cage by his hands and arms across the ground into the hallway where Plaintiff was hoisted into the air and carried across the yard. Brookwalter, Bremnar, R. Reyna, and T. Reyna dropped Plaintiff on his torso in front of housing unit #3. While Plaintiff was on the ground, Brookwalter twisted Plaintiff's shoulder and left arm back and upwards, as Bremnar pinned Plaintiff's right arm against the concrete and R. Reyna and T. Reyna pressed their knees into Plaintiff's legs and lower back. Brookwalter then ordered Plaintiff to stand while violently twisting Plaintiff's arm. Bremnar lifted Plaintiff up and he was carried to his housing unit where he was sent face first through the open hall window and punched in the ribs by R. Reyna. Plaintiff was then forced into his cell.

Plaintiff sought medical treatment, but Tyson, Peacock, Brookwalter, Bremnar, and Aspeitia denied his requests. Plaintiff's cell mate noticed Plaintiff's injuries and alerted prison officials. Plaintiff was seen by Dr. Akanno who determined Plaintiff needed x-rays and other treatment as a result of the assault. Aspeitia told Plaintiff the reason she refused to provide Plaintiff with medical treatment was because he was a rat and lived on a protective custody yard.

On January 30, 2006, Plaintiff's mother began calling the KVSP ombudsman and Warden to find out why no incident or use of force reports were filed in connection with the January 27, 2006 incident. Tyson then called Plaintiff into a meeting where Plaintiff told Tyson that he saw him in the hallway watching as he was being assaulted and asked Tyson why no investigation was taking place. Tyson sent Plaintiff back to his cell.

On February 1, 2006, Plaintiff filed another staff complaint against R. Reyna, T. Reyna, Heanacho, Correa, Tyson, Brookwalter, and Bremnar for the January 27 assaults. Plaintiff was subsequently transferred to administrative segregation, where he unsuccessfully sought medical treatment for his injuries. Plaintiff filed medical appeals, but Patel refused to intervene or to ensure Plaintiff received appropriate treatment. On May 11, 2006, Dill informed Plaintiff that his staff complaint was granted and extended Plaintiff's placement in administrative segregation without a rules violation report. Plaintiff remained in administrative segregation from February 2, 2006 until June 23, 2006 (141 days).

Based on the above facts, Plaintiff asserts six claims for relief. In Claim I, Plaintiff claims that R. Reyna retaliated against him for filing a staff complaint in violation of his First Amendment rights. In Claim II, Plaintiff claims that R. Reyna, Correa, Peacock, Bremnar, Brookwalter, T. Reyna, and Tyson used excessive force against him in violation of his Eighth Amendment rights. In Claim III, Plaintiff contends that Tyson, R. Reyna, T. Reyna, Heanacho, Correa, Peacock, Brookwalter, Bremnar, and Dill violated his right to equal protection under the law because other similarly-situated inmates would likely not have had their rights violated. In Claim IV, Plaintiff claims that Tyson, Peacock, Brookwalter, Bremnar, Aspeitia, and Patel were deliberately indifferent to Plaintiff's serious medical needs when they knew that Plaintiff required treatment after the January 27 assaults, but failed to take any action. In Claim V, Plaintiff alleges that his equal protection rights were violated when he was sent to administrative segregation after he filed a staff complaint regarding the January 27 assault. And in Claim VI, Plaintiff claims that Dill acted arbitrarily when she sent Plaintiff to administrative segregation after he filed a staff complaint, which allegedly violated his equal protection rights because other inmates would likely have had their liberties protected.

Plaintiff requests monetary damages.

Plaintiff's Claims Plaintiff now proceeds on claims for excessive force, retaliation, and deliberate indifference to serious medical needs.*fn3

Eighth Amendment Excessive Force Claim

"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 unusual punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort 'repugnant to the conscience of mankind." Id. at 9-10 (internal quotations marks and citations omitted).

"[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Id. at 7. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Id. (internal quotation marks and citations omitted). "The absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but does not end it." Id.

First Amendment Retaliation Claim

"Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal." Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (quotation marks omitted); accord Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009).

Eighth Amendment Medical Claim

"[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate must show 'deliberate indifference to serious medical needs.'" Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285 (1976)). The two-part test for deliberate indifference requires the plaintiff to show (1) "'a serious medical need' by demonstrating that 'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain,'" and (2) "the defendant's response to the need was deliberately indifferent." Jett, 439 F.3d at 1096 (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc) (internal quotations omitted)). Deliberate indifference is shown by "a purposeful act or failure to respond to a prisoner's pain or possible medical need, and harm caused by the indifference." Id. (citing McGuckin, 974 F.2d at 1060). Deliberate indifference may be manifested "when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care." Id. Where a prisoner is alleging a delay in receiving medical treatment, the delay must have led to further harm in order for the prisoner to make a claim of deliberate indifference to serious medical needs. McGuckin at 1060 (citing Shapely v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).

"Deliberate indifference is a high legal standard." Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). "Under this standard, the prison official must not only 'be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists,' but that person 'must also draw the inference.'" Id. at 1057 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994)). "'If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk.'" Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1188 (9th Cir. 2002)). "A showing of medical malpractice or negligence is insufficient to establish a constitutional deprivation under the Eighth Amendment. Id. at 1060. "[E]ven gross negligence is insufficient to establish a constitutional violation." Id. (citing Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990)).

"A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. Oregon, 662 F.2d 1337, 1344 (9th Cir. 1981) (internal citation omitted). To prevail, plaintiff "must show that the course of treatment the doctors chose was medically unacceptable under the circumstances . . . and . . . that they chose this course in conscious disregard of an excessive risk to plaintiff's health." Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (internal citations omitted).


A. Federal Rules of Civil Procedure 26(b), 33(a), and 37(a)

Under Rule 26(b), "[U]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1).

Pursuant to Rule 33(a), an interrogatory may relate to any matter that may be inquired into under Rule 26(b). Fed. R. Civ. P. 33(a)(2).

Pursuant to Rule 37(a), a party propounding discovery may seek an order compelling disclosure when an opposing party has failed to respond or has provided evasive or incomplete responses. Fed. R. Civ. P. 37(a)(2)(3). An evasive or incomplete disclosure, answer, or response is to be treated as a failure to disclose, answer, or respond." Fed. R. Civ. P. 37(a)(3). It is well established that a failure to object to discovery requests within the time required constitutes a waiver of any objection." Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468, 1473 (9th Cir.1992) (citing Davis v. Fendler, 650 F.2d 1154, 1160 (9th Cir.1981)). The moving party bears the burden of demonstrating "actual and substantial prejudice" from the denial of discovery. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir. 2002) (citations omitted.).

A. Plaintiff's Motion

Plaintiff seeks an order compelling defendants Bremner, Brookwalter, Peacock, Correa, Tyson, and Patel to fully answer certain interrogatories from Plaintiff's First Set of Interrogatories. On October 21, 2010, Plaintiff served identical sets of fourteen interrogatories on defendants Bremner, Brookwalter, and Peacock. (Declaration of Gary Lacy ("Lacy Decl."), Doc. 59 ¶2 and Exhs. 1-3.) On November 11, 2010, Plaintiff served a set of fourteen interrogatories on defendant Correa, a set of eighteen interrogatories on defendant Tyson, and a set of ten interrogatories on defendant Patel. (Id. ¶3 and Exhs. 4-6.) Plaintiff seeks to compel defendant Brookwalter to respond to Interrogatories 6-8; defendants Correa and Peacock to respond to Interrogatory No. 6; defendants Bremner, Brookwalter, Correa, Peacock, and Tyson to respond to Interrogatories 9-11; and defendant Patel to respond to all of Plaintiff's interrogatories. The sets of ...

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