United States District Court, E.D. California
BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE
Kevin Darnell Bryant (“Plaintiff”) is state
prisoner proceeding pro se and in forma pauperis in this
civil rights action pursuant to 42 U.S.C. § 1983. All
parties have consented to magistrate judge jurisdiction. (ECF
Nos. 7, 231.) This action proceeds on Plaintiff’s
claims against Defendant Romero for deliberate indifference
to serious medical needs in violation of the Eighth
Amendment, and against Defendants Gallagher and Romero for
conspiracy, retaliation in violation of the First Amendment,
and failure to protect in violation of the Eighth Amendment.
parties submitted pretrial statements, and on August 3, 2016,
the Court held a telephonic trial confirmation hearing.
Plaintiff, appearing pro se, and Diana Esquivel, counsel for
Defendants, attended the hearing. Having reviewed the
parties’ statements and the remainder of the file, and
having considered the issues raised at the telephonic trial
confirmation hearing, the Court issues the instant pretrial
Jurisdiction and Venue
Court has subject matter jurisdiction over this federal civil
rights action. 28 U.S.C. § 1331. Venue is proper because
the conduct allegedly occurred in this judicial district. 28
U.S.C. § 1391.
parties demand a trial by jury. Fed.R.Civ.P. 38(b).
is set for October 17, 2016 at 8:30 a.m. before U.S.
Magistrate Judge Barbara A. McAuliffe in Courtroom 8 (BAM).
The parties anticipate the trial will last approximately
three (3) to four (4) days.
Plaintiff’s Undisputed Facts
contends the following facts are undisputed:
Plaintiff Kevin D. Bryant, #D-56620, is a California prisoner
serving life for second degree robbery involving the use of a
firearm and is currently housed in the Salinas Valley State
Prison (SVSP) in Soledad, California.
Defendants are employed by the California Department or
Corrections and Rehabilitation (CDCR) as correctional
officers, and at the time pertinent to this lawsuit, were
assigned to Kern Valley State Prison (KVSP) in Delano,
events that Plaintiff complains about allegedly occurred
while he was incarcerated at KVSP.
June 8, 2010 at or about 12:00 p.m. Plaintiff suffered a
severe compound fracture to his eight leg in his housing unit
at KVSP severing both the tibia and fibula and the bone
punctured through the skin of his ankle.
Defendants Ramon R. Romero and Patrick Gallagher were the
correctional officers assigned to work in Plaintiff's
housing unit on June 8, 2010 during second watch shift.
Defendant Romero was working in the housing unit control
booth when this incident occurred and this means he was the
observation officer required to observe and watch what was
going on in that housing unit.
Plaintiff did in fact make Defendant Romero aware of the fact
that he suffered an injury to his right ankle very soon after
Romero opened his cell door to let him out for him to work at
his assigned barber job.
Defendant Romero or Gallagher did not hit their emergency
alarm buttons at all during the time of this incident.
Defendant Romero had let several inmates come into section
“A” of my housing unit where I was housed, some
of which did not even live in that housing unit at all and
they were in there when he let me out for work on 6/8/10.
Defendants did not ever summon emergency medical care for me
at time time of this incident which is the topic of this
Defendant Romero opened my cell door after almost an hour
after my injury to let me get my old ADA walker.
Defendant Romero watched me exit the dayroom and the housing
unit on this walker and he opened the door to let me out and
closed it behind me.
There were about three dozen inmates housed in section
“A” of my housing unit on 5/8/10 and all those
cells in which they were housed had a clear view of the
section “A” dayroom.
to March 2012 nobody had ever even questioned Defendants in
the investigation of my complaint of staff misconduct I had
filed against them.
There is a State Law and a CDCR policy and procedure that
governs how all CDCR inmate allegations of staff misconduct
are to be investigated.
Both Defendants allege that they did not know that I was
seriously injured requiring emergency medical care.
Both Defendants allege that I walked out of the housing (C3)
unit without even a noticeable limp and they did not know I
had suffered a serious and severe injury.
Both Defendants allege that they did not see me being
attacked by those inmates that Romero had in section
“A” of the housing unit when he let me out for
took three surgeries and an outside hospital and metal plate
and screws and rods to repair the severe compound fracture I
suffered from this incident.
gave several recorded interviews to ISU, OIA and one to Lt.
P. Morales alleging that Defendants threatened to have me
assaulted on 6/7/10, had me assaulted on 6/8/10, aided and
abetted in that assault and paid the assailants to assault
me, and that Defendants threatened to murder me and my family
if I ever tell on them about what they did to me.
Defendants’ Undisputed Facts
contend the following facts are undisputed:
Plaintiff is a prisoner in the custody of the California
Department of Corrections and Rehabilitation (CDCR) and is
serving a life sentence for his 2006 felony convictions.
June 2010, Plaintiff was incarcerated at the Kern Valley
State Prison (KVSP), and he was housed on Facility C, housing
unit 3, section A, cell 108.
Facility C was a Special Needs Yard (SNY) at KVSP.
all times relevant to this lawsuit, Defendant Gallagher was
one of the second watch (6 a.m. to 2 p.m.) Floor Officers
assigned to Building C3 at KVSP, and was acting under color
of state law.
all times relevant to this lawsuit, Defendant Romero was one
of the second watch Floor Officers assigned to Building C3,
and was acting under color of state law.
June 7, 2010, Gallagher responded to an administrative
grievance (602) Plaintiff submitted, requesting that he be
released for his assigned job at a specific time. Gallagher
granted Plaintiff’s request and returned the 602 to
June 8, 2010, Officer Molina was assigned to the Control
Booth in Building C3 during second watch. Molina left his
post about 10 a.m., and Romero was assigned to the Control
Booth for the remainder of second watch.
approximately 12:30 p.m. on June 8, 2010, Plaintiff asked to
go the medical clinic.
Plaintiff walked out of Building C3 at approximately 12:30
p.m. on June 8, 2010.
Plaintiff was seen by medical staff at the Facility C medical
clinic on June 8, 2010.
Plaintiff was sent to the Treatment & Triage Area of the
prison hospital for further evaluation or treatment on June
Plaintiff was transferred to Delano Regional Medical Center
(DRMC) for further evaluation or treatment on June 8, 2010.
Plaintiff returned to KVSP the same day from DRMC.
Plaintiff was diagnosed with a fractured right leg on June 8,
Plaintiff subsequently underwent surgery to repair his
Plaintiff’s Disputed Factual Issues
Whether I was even assaulted at all.
Whether Defendants were deliberately indifferent to my
serious medical needs on June 8, 2010.
Whether Defendants were made aware by me of the fact that I
had suffered a serious injury to my right ankle and required
emergency medical care on June 8, 2010.
Whether Defendants conspired to have me assaulted.
Whether Defendants aided and abetted in that assault that
assault of me by other inmates.
Whether I was unable to walk at all immediately after my
injury on 6/8/10.
Whether Defendant Romero watched being assault by those
inmates he let into the section “A” dayroom and
failed to press his alarm button or to make any attempt to
stop those inmates from assaulting me.
Whether inmate Edward A. Vargas, CDCR No. J-63103, reported
to ISU Lt. Jason Stiles that Defendants Gallagher and Romero
paid those inmates to assault me and initiated the
investigation into my assault.
Defendants’ Disputed Factual Issues
Defendants conspire to have Plaintiff assaulted by other
inmates on June 8, 2010?
Plaintiff assaulted by several inmates in the A-section
dayroom of Building C3 that was observed by Defendants, who
failed to intervene?
Romero refuse to summon medical care for any serious medical
condition Plaintiff had on June 8, 2010?
Defendants take any retaliatory action against Plaintiff for
filing a 602 against them?
and how did Plaintiff break his right leg?
Disputed Evidentiary Issues
Plaintiff’s Disputed Evidentiary Issues
Plaintiff reserves objections to specific testimony and
exhibits until such time as I have had an opportunity to hear