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Gary andre Lacy v. H. Tyson

September 7, 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 ("C/O") R. Reyna, T. Reyna, and N. Correa; Correctional Sergeants ("Sgt.") J. Peacock, M. Bremnar, and M. Brookwalter; Captain ("Cptn.") 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 December 7, 2011, Plaintiff filed a motion to compel production of documents. (Doc. 99.) On February 1, 2012, Defendants filed an opposition to the motion. (Doc. 105.) Plaintiff did not file a reply. Plaintiff's motion to compel is now before the Court.


Allegations in the Second Amended Complaint In the Second Amended Complaint, Plaintiff sues officers and medical personnel employed at Kern Valley State Prison (KVSP) when Plaintiff was incarcerated there. Plaintiff alleges the following facts. On January 27, 2006, defendant C/O R. Reyna approached Plaintiff during chow and demanded that Plaintiff leave his food at the table and exit the dining hall. Once outside, C/O R. Reyna cuffed Plaintiff and slammed his face into the brick wall several times. C/O R. Reyna then stated, "write this one up too[,]" referring to the fact that Plaintiff previously filed a complaint against C/O R. Reyna for misconduct. C/O R. Reyna then twisted Plaintiff's hands and arms above his head, causing severe pain. C/O 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. Defendants C/O R. Reyna and C/O Correa "twisted and jerked" Plaintiff's arms high in the air, causing pain. Plaintiff then told defendants Sgt. Peacock, Sgt. Bremnar, Sgt. Brookwalter, and C/O T. Reyna that he was just assaulted. Defendant Cptn.Tyson was notified of Plaintiff's allegation and, while Cptn. Tyson stood in the hallway "supervising," Plaintiff was slammed into the walls and to the ground by Sgt. Peacock, Sgt. Bremnar, Sgt. Brookwalter, C/O R. Reyna, and C/O T. Reyna. Sgt. Brookwalter, Sgt. Bremnar, C/O R. Reyna, and C/O 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. Sgt. Brookwalter, Sgt. Bremnar, C/O R. Reyna, and C/O T. Reyna dropped Plaintiff on his torso in front of housing unit #3. While Plaintiff was on the ground, Sgt. Brookwalter twisted Plaintiff's shoulder and left arm back and upwards, as Sgt. Bremnar pinned Plaintiff's right arm against the concrete and C/O R. Reyna and C/O T. Reyna pressed their knees into Plaintiff's legs and lower back. Sgt. Brookwalter then ordered Plaintiff to stand while violently twisting Plaintiff's arm. Sgt. 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 C/O R. Reyna. Plaintiff was then forced into his cell.

Plaintiff sought medical treatment, but Cptn. Tyson, Sgt. Peacock, Sgt. Brookwalter, Sgt. Bremnar, and MTA Aspeitia denied his requests. Plaintiff's cell mate noticed Plaintiff's injuries and alerted prison officials. Plaintiff was seen by Dr. Akanno (not a defendant) who determined Plaintiff needed x-rays and other treatment as a result of the assault. MTA 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. Cptn. 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. Cptn. Tyson sent Plaintiff back to his cell.

On February 1, 2006, Plaintiff filed another staff complaint against C/O R. Reyna, C/O T. Reyna, C/O Heanacho, C/O Correa, Cptn. Tyson, Sgt. Brookwalter, and Sgt. 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 defendant Dr. Patel refused to intervene or to ensure Plaintiff received appropriate treatment. On May 11, 2006, defendant Chief Deputy Dill informed Plaintiff that his staff complaint was granted and extended his placement in administrative segregation without a rules violation report. Plaintiff remained in administrative segregation from February 2, 2006 until June 23, 2006 (141 days).

Plaintiff requests monetary damages.

Plaintiff's Claims

Plaintiff now proceeds on claims for excessive force, retaliation, and deliberate indifference to serious medical needs.

Eighth Amendment Excessive Force Claim

Plaintiff claims that defendants R. Reyna, Correa, Peacock, Bremnar, Brookwalter, T. Reyna, and Tyson used excessive force against him in violation of his Eighth Amendment rights. "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

Plaintiff claims that defendant R. Reyna retaliated against him for filing a staff complaint, in violation of his First Amendment rights. "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

Plaintiff claims that defendants 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, 2006 assaults but failed to take any action. "[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), ...

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