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Bryant v. Gallagher

United States District Court, E.D. California

August 4, 2016

KEVIN DARNELL BRYANT, Plaintiff,
v.
GALLAGHER, et al., Defendants.

          PRETRIAL ORDER

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         The 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 order.

         I. Jurisdiction and Venue

         The 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.

         II. Trial

         The parties demand a trial by jury. Fed.R.Civ.P. 38(b).

         Trial 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.

         III. Facts

         A. Plaintiff’s Undisputed Facts

         Plaintiff contends the following facts are undisputed:

         1. 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.

         2. 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, California.

         3. The events that Plaintiff complains about allegedly occurred while he was incarcerated at KVSP.

         4. On 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.

         5. 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.

         6. 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.

         7. 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.

         8. That Defendant Romero or Gallagher did not hit their emergency alarm buttons at all during the time of this incident.

         9. That 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.

         10. Defendants did not ever summon emergency medical care for me at time time of this incident which is the topic of this litigation.

         11. Defendant Romero opened my cell door after almost an hour after my injury to let me get my old ADA walker.

         12. 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.

         13. 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.

         14. Up to March 2012 nobody had ever even questioned Defendants in the investigation of my complaint of staff misconduct I had filed against them.

         15. 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.

         16. Both Defendants allege that they did not know that I was seriously injured requiring emergency medical care.

         17. 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.

         18. 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 work.

         19. It 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.

         20. I 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.

         B. Defendants’ Undisputed Facts

         Defendants contend the following facts are undisputed:

         1. 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.

         2. In 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.

         3. Facility C was a Special Needs Yard (SNY) at KVSP.

         4. At 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.

         5. At 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.

         6. On 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 Plaintiff.

         7. On 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.

         8. At approximately 12:30 p.m. on June 8, 2010, Plaintiff asked to go the medical clinic.

         9. Plaintiff walked out of Building C3 at approximately 12:30 p.m. on June 8, 2010.

         10. Plaintiff was seen by medical staff at the Facility C medical clinic on June 8, 2010.

         11. Plaintiff was sent to the Treatment & Triage Area of the prison hospital for further evaluation or treatment on June 8, 2010.

         12. Plaintiff was transferred to Delano Regional Medical Center (DRMC) for further evaluation or treatment on June 8, 2010.

         13. Plaintiff returned to KVSP the same day from DRMC.

         14. Plaintiff was diagnosed with a fractured right leg on June 8, 2010.

         15. Plaintiff subsequently underwent surgery to repair his fractured leg.

         C. Plaintiff’s Disputed Factual Issues

         1. Whether I was even assaulted at all.

         2. Whether Defendants were deliberately indifferent to my serious medical needs on June 8, 2010.

         3. 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.

         4. Whether Defendants conspired to have me assaulted.

         5. Whether Defendants aided and abetted in that assault that assault of me by other inmates.

         6. Whether I was unable to walk at all immediately after my injury on 6/8/10.

         7. 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.

         8. 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.

         D. Defendants’ Disputed Factual Issues

         1. Did Defendants conspire to have Plaintiff assaulted by other inmates on June 8, 2010?

         2. Was Plaintiff assaulted by several inmates in the A-section dayroom of Building C3 that was observed by Defendants, who failed to intervene?

         3. Did Romero refuse to summon medical care for any serious medical condition Plaintiff had on June 8, 2010?

         4. Did Defendants take any retaliatory action against Plaintiff for filing a 602 against them?

         5. When and how did Plaintiff break his right leg?

         E. Disputed Evidentiary Issues[1]

         1. Plaintiff’s Disputed Evidentiary Issues

         a) Plaintiff reserves objections to specific testimony and exhibits until such time as I have had an opportunity to hear ...


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