United States District Court, D. Nevada
STEPHEN R.F. KERN, JR., Plaintiff,
STROUD, et al., Defendants.
ORDER PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
(ECF NO. 37) DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE.
case is brought by Plaintiff Stephen Kern under 42 U.S.C.
§ 1983, alleging three claims under the Eighth
Amendment. Plaintiff's claims arise from various events
that took place while he was incarcerated in High Desert
State Prison (HDSP) from 2013-2014. Before the Court are two
motions for summary judgment. ECF Nos. 37, 54. For the
reasons stated below, Plaintiff's Motion (ECF No. 37) is
DENIED, and Defendants' Motion (ECF No. 54) is GRANTED in
part and DENIED in part.
Causes of Action
alleges three cause of action in his Second Amended
Complaint. First, he alleges an 8th Amendment
claim for cruel and unusual punishment against Defendant
Henry for an incident in which Henry is alleged to have used
excessive force against the Plaintiff by placing handcuffs on
the Plaintiff in a manner that resulted in significant pain
and possible loss of consciousness. This first claim is only
brought against Officer Henry. Second, Plaintiff alleges an
8th Amendment claim for deliberate indifference to
a medical need, claiming that prison officials including
medical staff ignored and then delayed treating a substantial
wrist injury resulting from Henry's use of handcuffs.
This second claim is brought against Dr. Chang and Assistant
Warden Wickham. Third, Plaintiff alleges an 8th
Amendment claim regarding conditions of confinement, claiming
that prison officials prevented him from receiving regular or
weekly outdoor exercise for the ten months that he was in
segregated housing in 2013 and 2014. This third claim is
brought against Warden Neven and Associate Warden
filed his application to proceed in forma pauperis on
December 5, 2013. ECF No. 1. This was granted on February 20,
2014. ECF No. 23. His Complaint was entered on April 28,
2014. ECF No. 3. Plaintiff filed an Amended Complaint on June
17, 2014. ECF No. 7. Plaintiff filed a Second Amended
Complaint on November 10, 2014. ECF No. 13.
voluntarily dismissed Defendant Stroud on May 15, 2014, which
the Court granted on November 14, 2014. ECF Nos. 6 and 14.
Plaintiff's Second Amended Complaint was screened and
allowed to proceed on November 14, 2014. ECF No. 14.
filed a Motion for Summary Judgment on July 30, 2015. ECF No.
37. Defendants filed their Motion for Summary Judgment on
October 21, 2015. ECF No. 54.
Court held a hearing on the motions on March 9, 2016.
judgment is appropriate when the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show “that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a); accord Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). When considering the propriety of summary
judgment, the court views all facts and draws all inferences
in the light most favorable to the nonmoving party.
Johnson v. Poway Unified Sch. Dist., 658 F.3d 954,
960 (9th Cir. 2011). If the movant has carried its burden,
the non-moving party “must do more than simply show
that there is some metaphysical doubt as to the material
facts . . . . Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Scott
v. Harris, 550 U.S. 372, 380 (2007) (alteration in
original) (internal quotation marks omitted).
Court incorporates its findings of undisputed and disputed
facts as laid out at the hearing on March 9, 2016. ECF No.
81. The Court provides a brief summary below.
March 7, 2013, CO Henry observed that Plaintiff and his cell
mate were not getting along. Henry entered the cell and
placed the Plaintiff in wrist restraints and placed the
Plaintiff in the unit's shower cage. Henry double locked
the restraints to prevent the restraints from adjusting
tighter or looser. Approximately twenty minutes after being
placed in the shower, Plaintiff stated his wrist restraints
were too tight and that his left side was numb. Henry looked
at Plaintiff's restraints but did not see any squeezing
of Plaintiff's wrist. A “man down” was called
by Henry. Medical staff arrived and examined Plaintiff and
took Plaintiff to the infirmary for further examination. The
examination determined there were no bruises, lacerations, or
hematomas, and Plaintiff was prescribed Ibuprofen for pain.
March 7, 2013 until August 30, 2014, Plaintiff submitted
multiple kites and grievances regarding his medical and
mental health treatment and was seen on multiple occasions by
doctors and nurses, typically within a week of his submission
of a medical kite requesting to see a doctor. Plaintiff had
two x-rays taken in April 2013. On May 9, 2014, Plaintiff was
seen by the nurse for a sick call and stated he has no
problems at this time and does not need an appointment.
was placed in administrative segregation from March 13, 2013
until about October 11, 2013. During his time in
administrative segregation, Plaintiff was not permitted to
exercise outside in the yard every day. On July 16, 2013,
Plaintiff filed a grievance regarding his conditions of
confinement and complained he was not getting enough exercise
and enough time for showering or bathing. Plaintiff submitted
further grievances regarding these same concerns as to his
conditions of confinement while in segregation in July and
August. Prison officials responded and advised Plaintiff his
request was reviewed, and that their records indicated he was
let out for recreation on several days. They denied the
grievance. They did not address Plaintiff's concerns
regarding not being able to bath or shower regularly.
Plaintiff was sent back to segregated housing from May 29,
2014 to August 29, 2014.
also asserts, as he did in his grievances, that he did not
have regular bathing or showering opportunities during his
ten months (seven months on first stint and three months on
second stint) in administrative segregation. He was only let
out of his cell about once a week for ten minutes to shower
or bathe. He also claimed that he had no functioning toilet
while in segregation. When he was let out of segregation for
the one hour irregularly, he was generally not provided
drinkable water in the summer months with temperatures over
100 degrees Fahrenheit. Defendants do not dispute these
argue that Plaintiff did not properly exhaust any of his
claims by failing to pursue first or second level grievances
after his initial informal grievance was denied. Plaintiff
argues that he did properly exhaust and filed first and
second level grievances for all his claims, that Defendant
refuses to provide these grievances in discovery, and that he
is unable to provide these records because he lost a legal
box when he was transferred to another facility.
parties also dispute how frequently Plaintiff was permitted
to exercise. Plaintiff alleges that he was permitted out of
his cell one to two times a week but not always for exercise.
He further alleges that there was no penological reason for
his exercise to be so restricted and that this level of
restriction continued even after prison officials, including
the Warden Neven and Assistant Warden Wickham, were made
aware of the restrictions. He claims that he was on a
“24 hour lockdown” for most of the seven months
that he was in segregation. The Defendants dispute that he
was so restricted for this entire time but they do not assert
the amount of time that they believe that he was actually
restricted. They assert that they believe that he received
exercise time at least 5 hours a week and on several
different days per week.
Count III - Conditions of Confinement
Eighth Amendment's prohibition against cruel and unusual
punishment protects prisoners not only from inhumane methods
of punishment but also from inhumane conditions of
confinement. Morgan v. Morgensen, 465 F.3d 1041,
1045 (9th Cir. 2006), opinion amended on reh'g, No.
04-35608, 2006 WL 3437344 (9th Cir. Nov. 30, 2006). “A
prisoner claiming an Eighth Amendment violation [for
conditions of confinement] must show (1) that the deprivation
he suffered was objectively, sufficiently serious; and (2)
that prison officials were deliberately indifferent to his
safety in allowing the deprivation to take place.”
Id. (internal quotation marks omitted).
“Although the routine discomfort inherent in the prison
setting is inadequate to satisfy the objective prong of an
Eighth Amendment inquiry, those deprivations denying the
minimal civilized measure of life's necessities are
sufficiently grave to form the basis of an Eighth Amendment
violation.” Johnson v. Lewis, 217 F.3d 726,
731 (9th Cir. 2000).
officials have a duty to ensure that prisoners are provided
adequate shelter, food, clothing, sanitation, medical care,
and personal safety, ” and the “circumstances,
nature, and duration of a deprivation of these necessities
must be considered in determining whether a constitutional
violation has occurred.” Id. “There is
substantial agreement among the cases in this area that some
form of regular outdoor exercise is extremely important to
the psychological and physical well-being of the
inmates.” Spain v. Procunier, 600 F.2d 189,
199 (9th Cir. 1979). In Spain, the Ninth Circuit
upheld the district court's finding that, in that case,
the prison's denial of exercise five days a week for one
hour a day constituted an eighth amendment violation.
Id. Post-Spain, the Ninth Circuit has
continued to hold that “[d]eprivation of outdoor
exercise violates the Eighth Amendment rights of inmates
confined to continuous and long-term segregation.”
Keenan v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996)
opinion amended on denial of reh'g, 135 F.3d 1318 (9th
Exhaustion of Administrative Remedies