The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO COMPEL (Doc. 42.) ORDER FOR PLAINTIFF TO EITHER: (1) FILE A MOTION TO WITHDRAW DISCOVERY REQUESTS, RE-OPEN DISCOVERY, AND SERVE NEW DISCOVERY REQUESTS; OR (2) FILE WRITTEN NOTICE THAT HE DOES NOT WISH TO SERVE NEW DISCOVERY REQUESTS THIRTY DAY DEADLINE
Jasimi Jermaine Calloway ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on December 10, 2008. (Doc. 1.) This action now proceeds on the Third Amended Complaint filed on October 5, 2009, on Plaintiff's Eighth Amendment claims, against defendant Dr. Wang for deliberate indifference to Plaintiff's serious medical needs, and against defendants C/O Hayward and C/O Oaks for use of excessive force.*fn1 (Doc. 20.)
On June 14, 2011, the Court issued a Discovery/Scheduling Order in this action, establishing a deadline of February 14, 2012 for the parties to complete discovery, including the filing of motions to compel. (Doc. 31.) On September 8, 2011, Plaintiff filed a motion to compel. (Doc. 42.) On September 20, 2011, Defendants filed an opposition. (Doc. 44.) Plaintiff did not file a timely reply. Plaintiff's motion to compel is now pending before the Court.
II. PLAINTIFF'S ALLEGATIONS*fn2
Plaintiff is presently incarcerated at Kern Valley State Prison in Delano, California. The events at issue allegedly occurred while Plaintiff was incarcerated at Corcoran State Prison in Corcoran, California.
On May 7, 2008, after Plaintiff reported he was suffering from severe chest pain, he was escorted by wheelchair to the E.R. for emergency medical care. As Plaintiff stood up from the wheelchair to be weighed by a nurse, C/O Oaks held the chair and C/O Hayward grabbed Plaintiff's right bicep and began deliberately hurting him. Plaintiff had recently had an I.V. in the bicep, during surgery at Mercy Hospital, and both C/Os Hayward and Oaks were aware of Plaintiff's disability. Plaintiff told C/O Hayward to stop hurting him and pulled off C/O Hayward's tight grip which was cutting off Plaintiff's circulation. C/O Hayward jumped away in self-defense and began striking Plaintiff in the head and face. C/O Oaks struck Plaintiff on his back and head. The emergency alarm was activated and C/O Hayward started screaming to other arriving officers that it was a staff assault. Plaintiff alleges he never tried to assault staff, and he was being assaulted himself. Plaintiff went in and out of consciousness and could not defend himself. Sometime during the assault, Plaintiff's handcuffs were taken off one hand, and his other hand was stomped. Both arms were twisted behind his back, and both shoulders were dislocated. Plaintiff was thrown onto a gurney and his hands were chained to the gurney.
Plaintiff's wounds were cleaned up and his left hand was wrapped. Dr. Wang ordered Plaintiff to be taken back to his housing, to be followed up with an x-ray to determine if his hand was broken. For almost a week, Plaintiff had no medical treatment because Dr. Wang failed to follow up while he helped the administration cover up the assault, deliberately delaying the x-rays and medical treatment. Plaintiff's hand was found to be fractured, and he was referred to the E.R. to be sent out for a cast, but instead he was sent back to housing for weeks. Plaintiff's hand became deformed from not being set in place. By the time he saw the bone specialist, it was too late because the hand had already started healing.
A. Eighth Amendment Medical Care Claim
The Court found that Plaintiff states a cognizable claim against defendant Dr. Wang for deliberate indifference to Plaintiff's serious medical needs, for failing to follow up on Plaintiff's left hand injury while he helped the administration cover up the assault, resulting in a deformity of Plaintiff's left hand because it healed without being set.
"[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, 106, 97 S.Ct. 295 (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, 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. (citing McGuckin at 1060 (internal quotations omitted)). 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)).
B. Eighth Amendment Excessive Force Claim
The Court found that Plaintiff states a cognizable claim for excessive force against defendant C/O Hayward for squeezing Plaintiff's bicep, and against C/O Hayward and C/O Oaks for assaulting him.
"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, 503 U.S. at 8. "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 ...