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Gilmore v. Augustus

United States District Court, E.D. California

August 27, 2014

D. AUGUSTUS, et al., Defendants.


GARY S. AUSTIN, Magistrate Judge.


C. Dwayne Gilmore ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on June 7, 2012. (Doc. 1.) This action now proceeds on the First Amended Complaint filed on March 8, 2013, against defendants Correctional Officer (C/O) C. Lockard, C/O C. Lopez, C/O J. Hightower, and C/O J. J. Torres for excessive force, and against defendant C/O J. J. Torres for denial of adequate medical care, in violation of the Eighth Amendment.[1] (Doc. 12.) This case is now in the discovery phase.[2]

On July 2, 2014, Plaintiff filed a request for leave to propound three additional interrogatories on defendant C. Lockard ("Defendant"). (Doc. 58.) On July 23, 2014, Defendant filed an opposition to the request. (Doc. 62.) On August 6, 2014, Plaintiff filed a reply to the opposition. (Doc. 66.)


A. Allegations

The events at issue occurred at Kern Valley State Prison in Delano, California, when Plaintiff was incarcerated there.

On July 8, 2010, Plaintiff had just finished his inmate porter duties when he heard a commotion behind him and noticed an incident occurring between two handcuffed inmates and an officer. An alarm sounded, and Plaintiff got down on the ground. C/O Lockard aimed his Launcher Gun at Plaintiff's right thigh and shot him with a sponge round. Plaintiff was struck in the front inner right lower thigh/upper kneecap area, ripping a large hole in his leg. Plaintiff fell backwards onto the floor, actively bleeding. C/O Lockard called down to C/O Lopez, "Check Gilmore. I shot him. He was trying to get involved." Amd Cmp, Doc. 12 at 7 ¶ 21. Plaintiff was lying defenseless on the floor, in immense pain, attempting to put pressure on the wound. C/O Lopez walked over to Plaintiff and stood over him, stating, "You want to get involved motherf-er? You're involved now." Amd Cmp at 7 ¶ 23. C/O Lopez then sprayed Plaintiff with pepper spray without justification, in his face and up and down his backside. C/O Hightower approached Plaintiff and also began spraying him with pepper spray. Defendants Lopez and Hightower both emptied their pepper spray canisters on Plaintiff.

C/O Torres then handcuffed Plaintiff behind his back and aggressively yanked Plaintiff up from the floor. Plaintiff lost consciousness from pain but then awoke and began to yell that he was injured, bleeding, and needed medical attention. Plaintiff began to feel severe burning from the pepper spray. C/O Torres said, "You're not getting s-t, " forced Plaintiff to walk while in pain, and then shoved Plaintiff's face into the concrete wall, causing Plaintiff's glasses to chip and scratch Plaintiff's face, and busting Plaintiff's bottom lip. Amd Cmp at 8 ¶¶ 34-36. LVN's Canada, Serna, Ismat, and Nartume, who had all responded to the alarm, refused to examine Plaintiff on-site or direct Plaintiff's transportation to Medical Service. Sgt. Diaz instructed C/O Torres to escort Plaintiff to the Program Office, and Plaintiff was forced to walk, in obvious pain, to the Program Office patio area. C/O Torres intentionally led Plaintiff into the metal door frame, causing Plaintiff to hit his mouth, aggravating his busted and swollen bottom lip. C/O Torres told Plaintiff, "You gotta watch where you're going, Gilmore, " and began to chuckle. Amd Cmp at 9 ¶ 44. C/O Torres forced Plaintiff to continue walking, and intentionally led him into another metal door frame, smacking Plaintiff's face hard into the door frame. C/O Torres said, "Gilmore, why do you keep doing that? I'm going to have to write you up for self-mutilation, " and then snickered. Amd Cmp at 10 ¶ 47.

Plaintiff's right knee began to give out and he cried out to C/O Torres, "I can't walk no more, my knee is broken, " and began to collapse. Amd Cmp at 10 ¶¶ 48, 49. C/O Torres yanked Plaintiff upright and threatened to harm him, stating, "You try to go down on me and I'm going to slam your [expletive] on the ground. Now walk!" Amd Cmp at 10 ¶¶ 50, 51. Fearful, Plaintiff continued to limp while in immense pain. C/O Torres intentionally led Plaintiff into the Pedestrian Gate steel door, striking Plaintiff's right kneecap area, causing Plaintiff to scream out in pain and almost lose consciousness. C/O Torres led Plaintiff past Medical Service to the front of the Program Office, then forced him down onto the hot asphalt, stating, "Sit there!" Amd Cmp at 11 ¶ 56. Plaintiff screamed in pain from his knee injury and the burning of the pepper spray, for approximately 27 minutes. Lieutenant Augustus said, "Gilmore, I'm right here for you;" C/O Bari commented, "He looks like he's burning;" and C/O Torres said, "He sure is!" Amd Cmp at 11 ¶¶ 59-61.

Plaintiff was led to the front of Medical Services and forced down onto the hot asphalt. Plaintiff continued to beg, cry and plea to be decontaminated from the pepper spray, and for medical attention. C/O Torres said, "After we take pictures." Amd Cmp at 12 ¶ 67. Water was poured over Plaintiff's gunshot wound, clearing away the evidence of excessive bleeding. Plaintiff was forced into a chair in Medical Services, where photographs were taken of Plaintiff's wound. While the photos were being taken, defendant John Doe pulled open Plaintiff's wound, intentionally causing Plaintiff to lose consciousness. Plaintiff regained consciousness and was led outside of Medical Service by C/O Torres, who told Plaintiff, "Go down on your knees if you want to be decontaminated." Amd Cmp at 13 ¶ 75. Plaintiff went down on his left knee, leaving his right leg stretched out. C/O Torres told Plaintiff, "No! Both knees or you're not getting any water." Amd Cmp at 13 ¶ 77. Plaintiff bent his right leg and placed his knee onto the hot asphalt, causing excruciating pain. C/O Torres then began to decontaminate Plaintiff by spraying him with water. Every minute or so, C/O Torres would stop spraying Plaintiff and say, "Tell me you want more!" and snicker. Amd Cmp at 14 ¶ 80. Defendant Sgt. Diaz asked C/O Torres, "You're just now decontaminating him?" Amd Cmp at 14 ¶ 81. C/O Torres decontaminated Plaintiff for about five minutes and then placed him in a holding cell. Still burning and blind from the pepper spray, Plaintiff began to self-decontaminate without instructions. The blood vessels in Plaintiff's eyes had burst. At Delano Regional Medical Center, Plaintiff's wound was x-rayed for broken bones, and the wound was stapled shut. Plaintiff was housed in administrative segregation at KVSP on the false charge of assault on a peace officer.

On July 9, 2010, at his initial hearing, Plaintiff denied the charge and countercharged cruel and unusual punishment, denial of due process, and conspiracy. On July 20, 2010, Plaintiff was issued a Rules Violation Report authored by defendant C/O C. Lopez, falsely reporting that Plaintiff had assaulted a peace officer. On August 18, 2010, at his disciplinary hearing, Plaintiff pled not guilty and was found guilty.

Plaintiff continues to experience itchiness, numbness, pain, stiffness, and throbbing in his right knee as ...

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