Gilmore v. Augustus, et al.

Filing 125

ORDER Granting Plaintiff's Request To Propound Three Additional Interrogatories Upon Defendant Hightower (Doc. 78 ; also resolves Docs. 109 , 114 ), ORDER Reopening Discovery For Sole Purpose Of Resolving Plaintiff's Three Interrogatories, New Discovery Deadline: 9/30/2015, signed by Magistrate Judge Gary S. Austin on 6/5/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ORDER GRANTING PLAINTIFF‟S
REQUEST TO PROPOUND THREE
ADDITIONAL INTERROGATORIES UPON
DEFENDANT HIGHTOWER
(Doc. 78; also resolves Docs. 109, 114.)

Plaintiff,

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1:12-cv-00925-LJO-GSA-PC

C. DWAYNE GILMORE,

vs.
D. AUGUSTUS, et al.,

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Defendants.

ORDER REOPENING DISCOVERY FOR
SOLE PURPOSE OF RESOLVING
PLAINTIFF‟S THREE
INTERROGATORIES

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New Discovery Deadline: 09/30/2015

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I.

BACKGROUND

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C. Dwayne Gilmore (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on June 7, 2012. (Doc. 1.) This action now proceeds on the First

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Amended Complaint filed on March 8, 2013, against defendants Correctional Officer (C/O) C.

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Lockard, C/O C. Lopez, C/O J. Hightower, and C/O J. J. Torres for excessive force, and against
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defendant C/O J. J. Torres for denial of adequate medical care, in violation of the Eighth

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Amendment.1 (Doc. 12.)

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On April 25, 2014, the court issued a Discovery and Scheduling Order, establishing

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pretrial deadlines for the parties, including a deadline of December 25, 2014 for the completion

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of discovery, and a deadline of March 5, 2015, for the filing of pretrial dispositive motions.

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(Doc. 36.) The deadlines have now expired.

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On September 18, 2014, Plaintiff filed a request propound three additional

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interrogatories upon defendant Hightower and two additional interrogatories upon defendant

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Lockard.

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(Doc. 78.)

On October 1, 2014, defendants Hightower and Lockard filed an

opposition to the motion. (Doc. 79.)

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On October 16, 2014, Plaintiff voluntarily withdrew his request to propound additional

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interrogatories upon defendant Lockard. (Doc. 80.) Therefore, Plaintiff now seeks only to

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propound additional interrogatories upon defendant Hightower.

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Plaintiff filed a reply to the opposition and a related request for judicial notice. (Docs. 85, 86.)
Plaintiff‟s request to propound three additional interrogatories upon defendant

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On November 10, 2014,

Hightower is now before the court.

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II.

PLAINTIFF’S ALLEGATIONS AND CLAIMS AGAINST DEFENDANT
HIGHTOWER
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Allegations

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The events at issue in the First Amended Complaint allegedly occurred at Kern Valley

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State Prison (KVSP) in Delano, California, when Plaintiff was incarcerated there. With respect

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to Plaintiff‟s excessive force claim against defendant Hightower, Plaintiff alleges as follows.

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On July 8, 2010, Plaintiff had just finished his inmate porter duties when he heard a commotion

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On November 18, 2013, the court issued an order dismissing all other claims and defendants
from this action for failure to state a claim. (Doc. 17.) Defendants Lieutenant D. Augustus, Sergeant J. S. Diaz,
Licensed Vocational Nurse (LVN) A. Serna, LVN B. Ismat, LVN I. Bari, LVN J. Canada, LVN Z. Nartume, and
John Doe were dismissed from this action based on Plaintiff=s failure to state any claims against them upon which
relief may be granted under §1983, and Plaintiff=s claims based on supervisory liability and claims for conspiracy
and violation of due process were dismissed from this action for Plaintiff‟s failure to state a claim under § 1983.
(Id.)
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behind him and noticed an incident occurring between two handcuffed inmates and an officer.

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An alarm sounded, and Plaintiff got down on the ground. C/O Lockard aimed his Launcher

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Gun at Plaintiff‟s right thigh and shot him with a sponge round. Plaintiff was struck in the

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front inner right lower thigh/upper kneecap area, ripping a large hole in his leg. Plaintiff fell

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backwards onto the floor, actively bleeding. C/O Lockard called down to C/O Lopez, “Check

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Gilmore. I shot him. He was trying to get involved.” Amd Cmp, Doc. 12 at 7 ¶21. Plaintiff

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was lying defenseless on the floor, in immense pain, attempting to put pressure on the wound.

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C/O Lopez walked over to Plaintiff and stood over him, stating, “You want to get involved

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motherf---er? You‟re involved now.” Amd Cmp at 7 ¶23. C/O Lopez then sprayed Plaintiff

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with pepper spray without justification, in his face and up and down his backside. C/O

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Hightower approached Plaintiff and also began spraying him with pepper spray. Defendants

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Lopez and Hightower both emptied their pepper spray canisters on Plaintiff. Plaintiff was

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blinded by the pepper spray and felt severe burning. The blood vessels in Plaintiff‟s eyes had

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burst.

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2.

Excessive Force Claim – Eighth Amendment

The court found that Plaintiff states a cognizable claim against defendant Hightower for
use of excessive force in violation of the Eighth Amendment. (Doc. 13.)

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Legal Standard

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AWhat is necessary to show sufficient harm for purposes of the Cruel and Unusual

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Punishments Clause [of the Eighth Amendment] depends upon the claim at issue . . . .@ Hudson

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v. McMillian, 503 U.S. 1, 8 (1992). AThe objective component of an Eighth Amendment claim

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is . . . contextual and responsive to contemporary standards of decency.@ Id. (internal quotation

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marks and citations omitted). The malicious and sadistic use of force to cause harm always

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violates contemporary standards of decency, regardless of whether or not significant injury is

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evident.

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Amendment excessive force standard examines de minimis uses of force, not de minimis

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injuries)). However, not Aevery malevolent touch by a prison guard gives rise to a federal cause

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of action.@ Id. at 9. AThe Eighth Amendment=s prohibition of cruel and unusual punishments

Id. at 9; see also Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002) (Eighth

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necessarily excludes from constitutional recognition de minimis uses of physical force,

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provided that the use of force is not of a sort >repugnant to the conscience of mankind.@ Id. at

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9-10 (internal quotations marks and citations omitted).

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A[W]henever prison officials stand accused of using excessive physical force in

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violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . whether

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force was applied in a good-faith effort to maintain or restore discipline, or maliciously and

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sadistically to cause harm.@ Id. at 7. AIn determining whether the use of force was wanton and

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unnecessary, it may also be proper to evaluate the need for application of force, the relationship

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between that need and the amount of force used, the threat reasonably perceived by the

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responsible officials, and any efforts made to temper the severity of a forceful response.@ Id.

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(internal quotation marks and citations omitted). AThe absence of serious injury is . . . relevant

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to the Eighth Amendment inquiry, but does not end it.@ Id.

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III.

REQUEST TO PROPOUND ADDITIONAL INTERROGATORIES

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A.

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Pursuant to Rule 33(a) of the Federal Rules of Civil Procedure, A[u]nless otherwise

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stipulated or ordered by the court, a party may serve on any other party no more than 25 written

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interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be

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granted to the extent consistent with Rule 26(b)(2).@ Fed. R. Civ. P. 33(a). Rule 26(b)(2)(A)

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provides that A[b]y order, the court may alter the limits in these rules on the number of . . .

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interrogatories. Fed. R. Civ. P. 26(b)(2)(A). However, “the court must limit the frequency or

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extent of discovery . . . if it determines that (i) the discovery sought is unreasonably cumulative

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or duplicative, or can be obtained from some other source that is more convenient, less

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burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to

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obtain the information by discovery in the action; or (iii) the burden or expense of the proposed

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discovery outweighs its likely benefit, considering the needs of the case, the amount in

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controversy, the parties‟ resources, the importance of the issues at stake in the action, and the

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importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C).

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Legal Standard

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“„[B]road discretion is vested in the trial court to permit or deny discovery, and its

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decision to deny discovery will not be disturbed except upon the clearest showing that denial of

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discovery results in actual and substantial prejudice to the complaining litigant.‟” Dichter-Mad

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Family Partners, LLP v. U.S., 709 F.3d 749, 751 (9th Cir. 2013) (quoting Hallett v. Morgan,

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296 F.3d 732, 751 (9th Cir. 2002) (alteration omitted)); accord Goehring v. Brophy, 94 F.3d

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1294, 1305 (9th Cir. 1996)). “A plaintiff seeking discovery must allege „enough facts to raise a

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reasonable expectation that discovery will reveal‟ the evidence he seeks.” Dichter-Mad Family

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Partners, LLP, 709 F.3d at 751 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556,

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127 S.Ct. 1955 (2007)); see also Gager v. United States, 149 F.3d 918, 922 (9th Cir. 1998) (“It

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is well-established that the burden is on the party seeking to conduct additional discovery to put

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forth sufficient facts to show that the evidence sought exists.”)
Plaintiff’s Request

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B.

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Plaintiff requests leave to propound three additional interrogatories upon defendant

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Hightower. Plaintiff argues that the proposed interrogatories are relevant to his claim and

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reasonably calculated to lead to the discovery of admissible evidence. Plaintiff also argues that

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the interrogatories are not unreasonably cumulative or duplicative, and he cannot reasonably

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obtain them from another source. Plaintiff also argues that the burden or expense on defendant

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Hightower to respond to the interrogatories is within reason, considering the needs of the case,

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the amount in controversy, Plaintiff‟s resources and limitations, the importance of the issues at

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stake in this action, and the importance of the discovery in resolving the issues.

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Plaintiff submits these three proposed interrogatories for defendant Hightower:

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Interrogatory No. 1 -- Would you please explain why you did not report hearing
defendant Lockard utilize his 40mm Launcher Gun?

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Interrogatory No. 2 -- Would you please explain what obstructed you from
observing or hearing defendant Lockard discharge a direct
impact sponge round from his 40mm Launcher Gun?

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Interrogatory No. 3 -- Would you please explain why you did not report
observing Plaintiff being struck with a direct impact
sponge round?

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Defendant Hightower’s Opposition

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Defendant Hightower (“Defendant”) argues that Plaintiff has not made an offer of proof

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as to what information he expects to gain from the proposed interrogatories, or otherwise

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attempted to make the requisite particularized showing of why this additional discovery is

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needed. Defendant objects to the proposed interrogatories in that they lack foundation, assume

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unsubstantiated facts, call for speculation, and are argumentative.

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Plaintiff‟s requests are somewhat unnecessary since Defendant informed Plaintiff in his

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previous interrogatory responses that “under CDCR policies and procedures, officers are only

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supposed to include the information in their report that documents any force the authoring

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officer used, force the authoring officer observed, and any observations of misconduct on the

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part of an inmate that may be relevant to supporting disciplinary action taken against that

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inmate.” (Angus Decl., Docs. 79-1, 79-2, Exh. C at No. 12.) Defendant argues that defendant

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Lopez‟s response alone provides Plaintiff with the explanations he seeks in these

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interrogatories, i.e., that Defendants did not include the requested information in their reports

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because it either was not observed or not required to be included in a report.

Defendant argues that

Plaintiff’s Reply

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D.

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Plaintiff contends that he has previously propounded only 23 interrogatories, at most,

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upon defendant Hightower, depending on how the number of subparts is calculated. Plaintiff

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argues that the 3 proposed additional interrogatories are relevant to when defendant Hightower

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arrived on the scene of the incident at issue, and whether defendant Hightower made a false

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report about what he saw and heard during the incident at issue.
Plaintiff’s Request for Judicial Notice

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E.

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In support of his reply, Plaintiff requests the court to take judicial notice of three facts:

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(1) On July 8, 2010, Investigative Services Unit (ISU) C/O M. Mendoza reported to Facility A

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Medical Clinic and took photographs of Plaintiff, six of which are attached as Exhibit 1; (2) On

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July 8, 2010, medical staff personnel at KVSP examined and documented the wound to

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Plaintiff‟s right kneecap area on CDC 7230, Interdisciplinary Progress Notes forms, two of

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which are attached as Exhibit 2; and (3) On July 8, 2010, medical staff personnel at KVSP
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examined and documented the wound to Plaintiff‟s right kneecap area on a CDCR 7464, Triage

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& Treatment Services Flow Sheet, which is attached as Exhibit 3.

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III.

DISCUSSION

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The court previously found, in its order of September 2, 2014, that Plaintiff had

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exceeded the number of 25 interrogatories, propounded to defendant Hightower, permitted

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under Rule 33(a). (Doc 74 at 5:3-4.) Plaintiff now argues that he propounded at most 23

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interrogatories upon defendant Hightower, based on Plaintiff‟s present calculations of the

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interrogatories and their subparts.

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convincing nature to induce the court to reverse its September 2, 2014 finding.2

Plaintiff has not set forth facts or law of a strongly

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Plaintiff‟s request for the court to take judicial notice of the three facts enumerated

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above at ¶II.E. shall be denied. AA judicially noticed fact must be one not subject to reasonable

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dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court

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or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot

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reasonably be questioned.@ Fed. R. Evid. 201(b). It appears to the court that Plaintiff‟s three

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facts are subject to reasonable dispute. Plaintiff has not shown that the facts are generally

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known or that the accuracy of his sources cannot be reasonably questioned. Therefore, the

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court finds no good cause to take judicial notice of Plaintiff‟s three facts.

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The court finds that Plaintiff‟s three proposed interrogatories are relevant to his claim

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against defendant Hightower,3 and that Plaintiff has alleged enough facts to raise a reasonable

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expectation that discovery will reveal the evidence he seeks. To succeed on his excessive force

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claim against defendant Hightower, Plaintiff must show that the force used by defendant

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Hightower was not applied in a good-faith effort to maintain or restore discipline. Therefore,

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To succeed with a request for reconsideration, a party must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of
Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds, 828
F.2d 514 (9th Cir. 1987).
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Under Rule 26 of the Federal Rules of Civil Procedure, “[p]arties may obtain discovery
regarding any non-privileged matter that is relevant to any party's claim or defense.” Fed. R. Civ. P. 26(b).
“Relevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence.” Id.
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the circumstances surrounding defendant Hightower‟s use of pepper spray on Plaintiff,

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including when defendant Hightower arrived on the scene of the incident, what he saw and

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heard, what he knew, and what he believed are relevant to whether the force was excessive.

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Responses to interrogatories may also be relevant to a defendant‟s credibility. Plaintiff alleges

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in the First Amended Complaint that defendant Hightower did not arrive on the scene until

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after Plaintiff had been shot in the leg, when Plaintiff was lying defenseless on the floor,

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bleeding and in immense pain, attempting to put pressure on his wound. (First Amd Cmp, Doc.

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12 at ¶¶22, 25.) In contrast, Defendant Hightower‟s official report of the incident states that

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when he arrived on the scene, he heard Officer Lopez yell “get down,” saw Plaintiff running

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towards Officers Torres and Herrera, intercepted Plaintiff, and pepper sprayed Plaintiff in the

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face until he complied with orders to “get down.” (Doc. 85-1 at 49.) The court finds that

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Defendant‟s statement that “under CDCR policies and procedures, officers are only supposed

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to include certain information” does not address defendant Hightower‟s subjective awareness

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that Plaintiff was shot in the leg or the omission in the report. Therefore, Plaintiff shall be

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allowed to propound his three proposed interrogatories upon defendant Hightower within

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twenty days. However, Plaintiff is advised to redraft the interrogatories as needed to address

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Defendant‟s objections on the grounds that they lack foundation, assume unsubstantiated facts,

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call for speculation, and are argumentative.

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Defendant Hightower shall be granted twenty days in which to serve responses to the

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three interrogatories. Plaintiff must accept Defendant‟s responses to the extent they rely on

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Defendant‟s memory. A party cannot be compelled to remember what he is unable to recall.

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Motions to compel, if any, shall be filed within thirty days of the date of service of Defendant‟s

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responses.

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Defendant is reminded of his obligation to respond to the interrogatories to the fullest

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extent possible.

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specificity.

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common sense and reason, e.g., Collins v. Wal-Mart Stores, Inc., No. 06-2466-CM-DJW, 2008

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Fed. R. Civ. P. 33(b)(3). Further, any objections must be stated with

Fed. R. Civ. P. 33(b)(4). In responding, the court expects Defendant to use

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WL 1924935, *8 (D.Kan. Apr. 30, 2008), and will be disinclined to view with favor the failure

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to provide discovery based on objections which are hyper-technical, quibbling, or evasive.

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IV.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff‟s request to propound three additional interrogatories upon defendant
Hightower, filed on September 8, 2014, is GRANTED;

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2.

Plaintiff‟s request for judicial notice, filed on November 10, 2014, is DENIED;

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3.

Within twenty days of the date of service of this order, Plaintiff shall serve his

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three proposed interrogatories upon Defendant Hightower, as instructed by this

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order;
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Defendant Hightower shall serve responses to the interrogatories within twenty
days of the date of service of the interrogatories; and

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Discovery is reopened until September 30, 2015, for the sole purpose of

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resolving Plaintiff‟s three interrogatories addressed by this order, including the

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filing of related motions to compel.

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IT IS SO ORDERED.
Dated:

June 5, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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