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Johnson v. Sandy

United States District Court, E.D. California

September 15, 2014

E. SANDY, et al., Defendants.


ALLISON CLAIRE, Magistrate Judge.

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights pursuant to 42 U.S.C. § 1983. Pending before the court are plaintiff's motions to compel, ECF Nos. 34, 54, which have been opposed by defendants. Plaintiff has also requested appointment of counsel.


Plaintiff was placed in the Administrative Segregation Unit (ASU) at California State Prison-Solano (CSP-Sol) on March 27, 2012, pending an investigation. On March 28, 2012, he received written notice that he was being charged with a rules violation, possession of contraband in the form of a cellular phone. Verified First Amended Complaint, ECF No. 22 at page 2 & ¶¶ 1-2. Defendant Sandy was the Senior Hearing Officer at the April 28, 2012 disciplinary hearing at which plaintiff was found guilty. Id. at ¶ 3. Plaintiff filed an emergency appeal and sent letters to defendant Warden Swarthout, the Office of Internal Affairs, the Office of the Inspector General, the CDCR[1] Ombusdsman and the CSP-Sol appeals coordinator, complaining of prejudicial, arbitrary and unprofessional conduct by defendant Sandy at the disciplinary hearing. Id. at ¶¶ 4-6.

On June 20, 2012, plaintiff was taken to the ASU office, where defendant Sandy accused plaintiff of being a "snitch" and screamed at plaintiff about the letters he had written, specifically the one directed to defendant Swarthout. Id. at ¶¶ 8-10. Defendant Sandy instructed that plaintiff be placed inside the ASU holding cell and directed that plaintiff's "snitch ass" be moved out of his assigned cell because she did not want to see him while she was "coming or going to work." Id. at ¶ 11. Plaintiff was not permitted to re-enter his cell. In violation of CDCR policy, ASU staff were instructed to have another inmate pack plaintiff's property, after which plaintiff discovered stamps and documents missing. Id. at ¶¶ 14-16. Plaintiff alleges that he was moved to more restrictive housing in retaliation for having exercised "his right to seek redress against defendant Sandy." Id. at ¶ 13, 17.

On June 22, 2012, at about 9:00 a.m., defendants Cruzen, Cobian and Lavignino informed plaintiff that defendant Sandy wanted to talk to him; plaintiff indicated he did not feel safe in her presence and had nothing to say to her. Id. at ¶¶ 22-23. Defendant Cruzen returned fifteen minutes later and told plaintiff that his assigned case worker, Dr. Farrell, wanted to see him. Id. at ¶ 24. Having been reassured, plaintiff submitted to waist restraints which cuffed his hands at opposite sides. Id. at ¶¶ 25-26. Once plaintiff was outside the housing unit, defendants Sandy, Cobian and Lavignino appeared. Plaintiff turned to defendant Cruzen in fear, asking to speak with his case worker. Id. at ¶¶ 27-28. Defendant Sandy responded by telling defendants Cruzen, Cobian and Lavignino to "bring his ass on, I'm gonna show him who runs shit here!" Id. at ¶ 29.

Plaintiff was pushed and dragged into housing unit no. 9, where defendant Sandy had earlier attempted to have plaintiff moved and where defendant Lavergne appeared to have been waiting for plaintiff. Id. at ¶ 30. Defendant Sandy asked defendant Austin, the control tower officer, if cell no. 101 was opened and instructed defendants Cruzen, Cobian, Lavagnino and Lavergne to remove plaintiff's medically approved shoes. Id. at ¶¶ 31-32. When plaintiff told defendant Sandy that the shoes had been issued by medical staff for a pre-existing injury, she began to scream at plaintiff that "this is what happens to inmates who snitch on me." Id. at ¶¶ 33-34. Plaintiff saw that defendant Austin was pointing a gun at him from outside the window of the control tower. Id. at ¶ 35. Plaintiff, in fear of the use of potentially "deadly force, " sat on the floor of the housing unit. Defendants Cobian and Lavergne grabbed plaintiff's legs and defendant Cruzen pushed plaintiff's chest backwards to the floor. Id. at ¶¶ 36-37. Defendants Cobian and Lavergne began stepping on plaintiff's ankles with heavy duty, steel-toed boots, twisting and turning plaintiff's legs to remove plaintiff's medically issued shoes. Id. at ¶¶ 38-39. While plaintiff lay flat on his back, defendant Cruzen dropped his full body weight on plaintiff's chest using his knee. Id. at ¶ 40. Plaintiff lost consciousness but was awakened by defendants Cobian and Lavergne stomping on his ankles and feet, while defendant Cruzen stomped and kicked plaintiff's ribcage, left hand and wrist. Id. at ¶¶ 41-42. When defendant Sandy, who stood nearby throughout, ordered defendants Cruzen, Cobian, Lavagnino and Lavergne to get plaintiff into cell no. 119, they dragged plaintiff across the concrete floor while shoving and kneeing plaintiff's head and body. Id. at ¶¶ 43-44.

When other inmates began protesting the beating, defendant Sandy instructed that plaintiff be placed inside the building's holding cell. Plaintiff was again subjected to the use of excessive force by defendants Cruzen, Cobian, Lavagnino and Lavergne as they dragged him to a holding cell nearby. Id. at ¶¶ 45-47. Defendants Cruzen, Cobian, Lavagnino and Lavergne split plaintiff's chin open by running plaintiff into the holding cell door's corner, face first. Id. at ¶ 48. Plaintiff was locked inside the holding cell for several hours while defendants Sandy, Cruzen, Cobian, Lavagnino, Lavergne and Austin "fabricated" rules violation reports against plaintiff. Id. at ¶ 49.

Plaintiff complained of serious injuries and was eventually escorted to the prison infirmary by defendants Destefano and Hutcheson. Defendant Lahey documented plaintiff's discolored and swollen chest and left hand injuries on a CDC Form 7219. Id. at ¶¶ 51-52. X-rays revealed severe trauma to plaintiff's left hand and chest, and plaintiff was brought to defendant Shadday who conducted a cursory examination but provided no treatment. Id. at ¶¶ 53-54. Despite plaintiff's severely swollen and fractured left hand ring finger, plaintiff was released and escorted back to cell no. 101 in housing unit no. 9. Id. at ¶ 55. Additional injuries suffered by plaintiff included fractured ribs, several cracked or chipped teeth, severe trauma to his face, shoulders, legs, knees, arms, wrist and back; plaintiff also had internal injuries and urinated blood for about thirty-six (36) days. Id. at ¶¶ 57-58. Defendants Lahey and Shadday's failure to treat his injuries caused plaintiff more suffering. Id. at ¶ 56.

On June 26, 2012, defendant Sandy ordered plaintiff's removal from his cell. Sandy informed plaintiff of a call from plaintiff's wife complaining of the use of excessive force on June 22, 2012. Id. at ¶¶ 59-61. Plaintiff believes defendant Sandy ordered housing unit officers to search plaintiff's cell as a punitive, retaliatory and harassing measure because of the phone call, and also ordered officers to search the cells of neighboring inmates to turn them against plaintiff. The searches resulted in cells that were "completely destroyed." Id. at ¶¶ 62-64. That same day, plaintiff was interviewed and videotaped by a Corr. Captain Justice from the Office of Internal Affairs regarding the June 22nd incident and events thereafter, after which plaintiff was re-examined by a non-party registered nurse, Kiesz, who determined that plaintiff's injuries were serious and required immediate treatment. Id. at ¶¶ 65-67. Plaintiff alleges that he was then "involuntarily transferred to the California Medical Facility" (CMF) and misled that the overnight transfer to a higher security level institution was for his medical treatment and protection. Id. at ¶¶ 68-69. Plaintiff contends that the transfer was solely adverse and actually initiated by Warden Swarthout in retaliation for plaintiff's constitutionally protected activity of filing grievances. Id. at 70.

Plaintiff claims that he has since been confined to segregated housing and has suffered collateral consequences in the form of modified custody, work and privilege group modifications and that he continues to suffer harassment by correctional staff. Id. at 71-72. Plaintiff asks for declaratory relief and a form of injunctive relief[2] but primarily seeks compensatory and punitive damages. Id. at (page) 15.

The court has previously determined that the first amended complaint states cognizable claims for relief against:

• Defendants E. Sandy, J. Cruzen, E. Cobian, K. Lavagnino, Lavergne, J.M. Austin, R. Destefano and H.R. Hutcheson for the use of excessive force and/or failure to protect in violation of the Eighth Amendment;
• Defendants Sandy, Cruzen, Cobian, Lavagnino, Lavergne and Austin for retaliation in violation of the First Amendment in the form of allegedly false disciplinary reports and also for liability under supplemental state law tort claims;
• Defendant Swarthout for First Amendment retaliation in the form of an adverse transfer for plaintiff's having filed grievances and written letters of complaint;
• Defendants Lahey and Shadday for deliberate indifference to a serious medical condition in violation of the Eighth Amendment.

ECF No. 29.[3]


I. Standards Governing Discovery

The scope of discovery under Fed.R.Civ.P. 26(b)(1) is broad. Discovery may be obtained as to "any nonprivileged 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." Id . Discovery may be sought of relevant information not admissible at trial "if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id . The court, however, may limit discovery if it is "unreasonably cumulative or duplicative, " or can be obtained from another source "that is more convenient, less burdensome, or less expensive"; or if the party who seeks discovery "has had ample opportunity to obtain the information by discovery"; or if the proposed discovery is overly burdensome. Fed.R.Civ.P. 26(b)(2)(C)(i), (ii) and (iii).

Where a party fails to answer an interrogatory submitted under Fed.R.Civ.P. 33, or fails to produce documents requested under Fed.R.Civ.P. 34, the party seeking discovery may move for compelled disclosure. Fed.R.Civ.P. 37. The party seeking to compel discovery has the burden of establishing that its request satisfies the relevancy requirements of Rule 26(b)(1). The party opposing discovery then has the burden of showing that the discovery should be prohibited, and the burden of clarifying, explaining or supporting its objections. Bryant v. Ochoa , 2009 WL 1390794 at * 1 (S.D. Cal. May 14, 2009). The opposing party is "required to carry a heavy burden of showing" why discovery should be denied. Blankenship v. Hearst Corp., 519 f.2D 418, 429 (9th Cir. 1975).

A. First Motion to Compel

On December 19, 2013, plaintiff filed his initial motion to compel responses to his requests for production from defendants Sandy, Cruzen, Cobian, Lavagnino and Lavergne. ECF No. 34. The requests for production had been served on October 28, 2013. Id . On December 12, 2013, the court had granted defendants an extension of time until January 7, 2014, to respond to plaintiff's document production requests. ECF No 31. Accordingly, the time for defendants to respond had not expired when the motion was filed. This motion is therefore denied as premature.

B. Second Motion to Compel

1. Plaintiff's Motion

Plaintiff's second motion to compel production of documents was docketed on March 21, 2014. ECF No. 54. The motion fails to include a copy of the requests for production and the responses that plaintiff seeks to put at issue. ECF No. 54. Local Rule 250.3 requires the filing of "that part of the request for production, response or proof of service that is in issue...." Moreover, this court's Discovery and Scheduling Order specified that discovery requests were not to be filed "except when required" by specific Local Rules, including L.R. 250.3. ECF No. 53 at 4. Failure to file a discovery motion in compliance with "all applicable rules, " the parties were cautioned, "may result in imposition of sanctions, including but not limited to denial of the motion." Id. at 5.

Plaintiff's motion specifies that he seeks compelled production of the following video recordings:

• A July 6, 2012 (or, alternatively, July 7, 2012) videotaped interview of an "inmate witness" identified as Farris, CDCR # P-38218, conducted by Investigative Services Unit (ISU) Lieutenant S.W. Brown;
• A June 26, 2012 video recording of the plaintiff;
• Video recordings regarding all incidents in which defendants were involved in altercations with inmates.

ECF No. 54.

Plaintiff indicates that on January 9, 2014, defendants produced a video-recorded interview taken by a Lieutenant Heist and Sergeant J. Huey that was conducted some three months after the incident at issue, wherein plaintiff avers he repeatedly asks why a second interview is being recorded. Id. at 2. Plaintiff states that he was told that "somehow, I.S.U. at Solano Prison has lost the original video taped interview taken on June 26, 2012." Id . Nevertheless, plaintiff asserts that the second video recording reveals injuries he sustained during the incident at issue, such as the boot prints from having been repeatedly kicked by correctional officers. Id.

Plaintiff contends further that he has sought by way of interrogatories and requests for production of documents information regarding "any type of physical altercations" between the defendants and other inmates. Id. at 3. Plaintiff avers that defendants have objected on grounds of vagueness. Id . Plaintiff argues that the responses have been deliberately evasive. Id. at 3-4. Plaintiff seeks unspecified sanctions against defendants for having "blatantly refused to produce key evidence to the plaintiff."

2. Defendant Sandy's Opposition

Defendant Sandy opposes plaintiff's motion on two grounds: 1) that plaintiff has failed to clearly identify which discovery requests are at issue by his motion, and 2) that the motion was filed prior to defendant Sandy's actual response to plaintiff's discovery requests. ECF No. 55.

As the court noted above, plaintiff has failed to include the actual discovery requests and responses at issue. As to the timing of the motion, it was file-stamped as filed on March 21, 2014, and by application of the mailbox rule[4] was actually filed on March 18, 2014. ECF No. 54. According to defendant Sandy, however, her timely responses to plaintiff's requests for production, sets one through three, and responses to sets one and two of plaintiff's interrogatories, were not served until March 31, 2014. ECF No. 55, 55-1 (Declaration of Matthew R. Wilson). No reply to this opposition has been filed by plaintiff to challenge defendant Sandy's opposition. Under these circumstances, plaintiff's motion to compel further production or responses from defendant Sandy must be denied as premature.

3. Opposition by Defendants Austin, Cobian, Cruzen, Destafano, Hutcheson, Lahey, Lavagnino, Lavergne, Shadday and Swarthout

These defendants have made the effort to provide the specific discovery requests and responses that plaintiff indicates an intent to put at issue. ECF No. 56. Defendants have submitted the following:

• Exhibit A, plaintiff's RFP, Set One, propounded upon defendants Cobian, Cruzen, Lavagnino, and Lavergne, and defendants' ...

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