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Kern v. Stroud

United States District Court, D. Nevada

March 20, 2017

STEPHEN R.F. KERN, JR., Plaintiff,
STROUD, et al., Defendants.




         This 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.


         A. Causes of Action

         Plaintiff 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 Howell.[1]

         B. Procedural History

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         The Court held a hearing on the motions on March 9, 2016.


         Summary 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).


         The 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.[2]

         A. Undisputed facts

         On 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.

         From 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.

         Plaintiff 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.

         Plaintiff 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 latter allegations.

         B. Disputed Facts

         Defendants 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.

         The 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.

         V. ANALYSIS

         A. Count III - Conditions of Confinement

         1. Legal Standard

         The 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).

         “Prison 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 Cir. 1998).

         2. Exhaustion of Administrative Remedies

         a. ...

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