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Shannon Lewis Avery, Sr v. Cdcr Director

February 26, 2013

SHANNON LEWIS AVERY, SR.,
PLAINTIFF,
v.
CDCR DIRECTOR, ET AL.,
DEFENDANTS.



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

ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PRODUCTION OF DOCUMENTS (Doc. 99.) ORDER GRANTING DEFENDANTS' MOTION TO COMPEL PLAINTIFF'S DEPOSITION AND ) RESPONSES TO INTERROGATORIES (Doc. 102.)

) ORDER DEEMING DEFENDANTS' REQUESTS ) FOR ADMISSION ADMITTED ) ORDER FOR PLAINTIFF TO SHOW ) CAUSE, WITHIN THIRTY DAYS, WHY ) SANCTIONS SHOULD NOT BE IMPOSED ) ORDER REOPENING DISCOVERY FOR ) LIMITED PURPOSE OF TAKING PLAINTIFF'S ) DEPOSITION )New Discovery Deadline - 04-19-2013 ) ORDER EXTENDING DEADLINE TO FILE ) PRETRIAL DISPOSITIVE MOTIONS )New Dispositive Motions Deadline - 05-31-2013 ) ORDER FOR PLAINTIFF TO: ) (1) ATTEND AND PARTICIPATE IN HIS ) DEPOSITION; ) (2) RESPOND TO DEFENDANTS' DISCOVERY ) REQUESTS WITHIN THIRTY DAYS, AS INSTRUCTED BY THIS ORDER; AND ) (3) RESPOND TO ORDER TO SHOW CAUSE WITHIN THIRTY DAYS

I. RELEVANT PROCEDURAL HISTORY

Shannon Lewis Avery, Sr. ("Plaintiff") is a former state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on May 16, 2007 in the Northern District of California, and the case was transferred to the Eastern District of California on August 13, 2007. (Doc. 1.) This case now proceeds on Plaintiff's Second Amended Complaint filed on July 20, 2010, for damages, against Correctional Officer ("C/O") J. Amaya for retaliation under the First Amendment; against defendant C/O G. Gonzales for inadequate medical care and for failure to protect Plaintiff, in violation of the Eighth Amendment; and on Plaintiff's related state tort claims. (Doc. 69.)

On October 27, 2011, the Court issued a Scheduling Order establishing a deadline of June 27, 2012, for the parties to complete discovery, including the filing of motions to compel.*fn1 (Doc. 93.) The deadline for the parties to file pretrial dispositive motions was set for September 7, 2012. Id. On November 7, 2012, the dispositive motions deadline was extended to February 28, 2013. (Doc. 113.)

On April 13, 2012, Defendants Amaya and Gonzales ("Defendants") filed a motion to compel production of documents and for sanctions. (Doc. 99.) On May 8, 2012, Defendants filed a notice of non-receipt of opposition to the motion. (Doc. 101.) Plaintiff has not filed an opposition to the motion.

On June 25, 2012, Defendants filed a motion to compel Plaintiff's deposition and responses to interrogatories, and for sanctions. (Doc. 102.) On July 24, 2012, Defendants filed a notice of non-receipt of opposition to the motion. (Doc. 103.) Plaintiff has not filed an opposition to the motion.

On August 2, 2012, Defendants filed a motion to dismiss this action based on Plaintiff's failure to prosecute. (Doc. 104.) The motion to dismiss was denied on February 26, 2013. (Doc. 117.)

Defendants' two motions to compel are now before the Court.

II. PLAINTIFF'S ALLEGATIONS AGAINST DEFENDANTS AMAYA AND GONZALES IN THE SECOND AMENDED COMPLAINT The events at issue in the Second Amended Complaint allegedly occurred at Avenal State

Prison ("ASP") in Avenal, California, when Plaintiff was incarcerated there. Plaintiff's factual allegations against defendants C/O J. Amaya and C/O G. Gonzales follow.

(1) Repercussions for Bringing ADA Issues

Plaintiff was the ADA (Americans with Disabilities Act) representative for the Mens Advisory Council at ASP. On May 9, 2006, Plaintiff complained to Sgt. E. Alfaro about ADA issues concerning the hot water only running for five minutes. Sgt. Alfaro told Plaintiff, "You don't want to bring those issues up." Second Amd Cmp ("2ACP"), Doc. 69 at 4:11. Plaintiff said he would continue to bring up such issues. Approximately thirty minutes later, a representative of the Black Mens Advisory Council approached Plaintiff and said that Sgt. Alfaro wanted him to talk to Plaintiff about the hot water issue.

On May 10, 2006, a group of inmates approached Plaintiff about his ADA-1824 form request concerning issues about television closed-captioning and sports being shown on both televisions. Defendants C/O J. Amaya and C/O G. Gonzales watched as the inmates threatened Plaintiff by saying that if closed-captioning appeared on the televisions, Plaintiff would be hurt. Defendant Amaya sent Plaintiff to talk to Sgt. Alfaro in the support office about the ADA requests. Plaintiff told Sgt. Alfaro he wanted to withdraw his ADA requests, explaining that Defendant Amaya had told the inmates in Unit 640 about Plaintiff's ADA-1824 form, which is supposed to be a confidential document, causing Plaintiff's life to be threatened. Sgt. Alfaro told Plaintiff he wouldn't have granted the ADA requests anyway, and that if Plaintiff wanted to submit an ADA form again, he should consult with the inmate population first. Sgt. Alfaro said he would withdraw Plaintiff's ADA requests, and Plaintiff left the support office. When Plaintiff entered Unit 640, Defendant Amaya told Plaintiff, "If you bring any more ADA issues, I'll take it out on the general population." 2ACP at 5:25-26. Plaintiff continued to bring up ADA issues anyway.

Defendant Amaya, and other officers, manipulated inmates against Plaintiff, just as Amaya stated he would.

(2) Move from Unit 640 to Unit 650

On May 11, 2006, defendant C/O G. Gonzales told Plaintiff to pack his property and move from Unit 640 to Unit 650. The prisoners who wanted to harm Plaintiff were in Unit 650, which is called the Gladiator Dorm. Plaintiff asked defendant Gonzales more than once why he was being moved, and Gonzales responded, "Hurry and pack your stuff before count." 2ACP at 6:11. Plaintiff told Defendant Gonzales he was taking heat medication, and that there was a heat alert because the temperature was over 100 degrees. Defendant Gonzales opened the door, said "Let's go," and locked the door behind Plaintiff. 2ACP at 6:15. Plaintiff became dizzy from the heat and started yelling for help. No one came to the Unit 650 door until forty minutes later. Plaintiff was taken to the emergency room with heat stroke and high blood pressure.

(3) Medical Chrono, Fall on Pavement

Plaintiff had a medical chrono which allowed him to pick up his medication at 6:30 a.m. On August 19, 2006, defendant C/O G. Gonzales refused to honor Plaintiff's chrono. When Plaintiff told defendant Gonzales he needed to get his medication, Gonzales said, "It doesn't matter, this is the Captain's order." 2ACP at 7:10. Thirty minutes later, Plaintiff was released and barely made it in time to get the medication. Again on August 20, 2006, defendant Gonzales refused to honor Plaintiff's chrono. Plaintiff begged, but Gonzales said "No, you are not going anywhere!" 2ACP at 7:16. Defendant Gonzales had released all the other medication prisoners but had stopped Plaintiff and locked the Unit 640 doors. Forty minutes later, defendant Gonzales released Plaintiff. Plaintiff walked through the doors and became dizzy, fell in a hole in the pavement, and hit his head, injuring his neck and back. Plaintiff was in severe pain. Medical staff and an ambulance were called, and Plaintiff was taken to the emergency room at Unit 390.

Plaintiff also alleges that on several days, defendant Amaya refused to honor Plaintiff's medical chrono to pick up medication at 6:30 a.m.

(4) State Tort Claims

Plaintiff also brings state tort claims against Defendants.

III. PLAINTIFF'S CLAIMS

The Civil Rights Act under which this action was filed provides:

Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983. "Section 1983 . . . creates a cause of action for violations of the federal Constitution and laws." Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) (internal quotations omitted). "To the extent that the violation of a state law amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the federal Constitution, Section 1983 offers no redress." Id.

The Court found that Plaintiff stated cognizable claims against defendant Amaya for retaliation under the First Amendment, and against defendant Gonzales for inadequate medical care and failure to protect Plaintiff, in violation of the Eighth Amendment.*fn2 (Doc. 75 at 7-8 ¶C, 8-9 ¶E, 10-11 ¶G.) The Court has exercised supplemental jurisdiction over Plaintiff's related state tort claims. (Id. at 13 ¶J.)

A. Retaliation

"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).

Plaintiff alleges that defendant C/O J. Amaya informed a group of inmates that Plaintiff had filed an ADA-1984 form requesting closed-captioning on the televisions, resulting in inmates approaching Plaintiff and telling him that he would be hurt if closed-captioning appeared on the televisions. Plaintiff also alleges that C/O Amaya told Plaintiff, "If you bring any more ADA issues, I'll take it out on the general population," which was a threat to manipulate other inmates against Plaintiff. Under these facts, the Court found that Plaintiff states a cognizable claim for retaliation against C/O Amaya.

B. Inadequate Medical Care

"[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 Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985)).

The Court found that Plaintiff states a cognizable Eighth Amendment medical claim against defendant G. Gonzales for refusing to honor Plaintiff's medical chrono, causing him to become dizzy, fall, and injure himself.

C. Failure to Protect

Although prison conditions may be restrictive and harsh, prison officials must provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety. Farmer v. Brennan, 511 U.S. 825, 832 (1994); Toussaint v. McCarthy, 801 F.2d 1080, 1107 (9th Cir. 1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). Where a prisoner alleges injuries stemming from unsafe conditions of confinement, prison officials may be held liable only if they acted with "deliberate indifference to a substantial risk of serious harm." Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). Thus, a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837-45.

The Court found that Plaintiff states a cognizable claim against defendant C/O Gonzales for placing him in danger by sending him outside alone in 100-degree heat, knowing that there was a heat alert and that Plaintiff was taking heat medication, ...


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