Kern v. Stroud et al

Filing 88

ORDER denying 37 Motion for Summary Judgment., granting in part and denying in part 54 Motion for Summary Judgment. Granting 54 Motion as to Counts I and II, Denying 54 Motion as to Count III, which will proceed to trial. Signed by Judge Richard F. Boulware, II on 3/20/2017. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 STEPHEN R.F. KERN, JR., 8 Plaintiff, 9 v. 10 STROUD, et al., 11 Case No. 2:13-cv-02227-RFB-NJK ORDER Plaintiff’s Motion for Summary Judgment (ECF No. 37) Defendants’ Motion for Summary Judgment (ECF No. 54) Defendants. 12 13 14 I. INTRODUCTION This case is brought by Plaintiff Stephen Kern under 42 U.S.C. § 1983, alleging three 15 claims under the Eighth Amendment. Plaintiff’s claims arise from various events that took place 16 17 while he was incarcerated in High Desert State Prison (HDSP) from 2013-2014. Before the Court 18 are two motions for summary judgment. ECF Nos. 37, 54. For the reasons stated below, Plaintiff’s 19 Motion (ECF No. 37) is DENIED, and Defendants’ Motion (ECF No. 54) is GRANTED in part 20 and DENIED in part. 21 22 23 24 II. BACKGROUND A. Causes of Action 25 Plaintiff alleges three cause of action in his Second Amended Complaint. First, he alleges 26 an 8th Amendment claim for cruel and unusual punishment against Defendant Henry for an incident 27 in which Henry is alleged to have used excessive force against the Plaintiff by placing handcuffs 28 1 on the Plaintiff in a manner that resulted in significant pain and possible loss of consciousness. 2 This first claim is only brought against Officer Henry. Second, Plaintiff alleges an 8th Amendment 3 claim for deliberate indifference to a medical need, claiming that prison officials including medical 4 5 staff ignored and then delayed treating a substantial wrist injury resulting from Henry’s use of 6 handcuffs. This second claim is brought against Dr. Chang and Assistant Warden Wickham. 7 Third, Plaintiff alleges an 8th Amendment claim regarding conditions of confinement, claiming 8 that prison officials prevented him from receiving regular or weekly outdoor exercise for the ten 9 months that he was in segregated housing in 2013 and 2014. This third claim is brought against 10 11 Warden Neven and Associate Warden Howell. 1 B. Procedural History 12 13 Plaintiff filed his application to proceed in forma pauperis on December 5, 2013. ECF No. 14 1. This was granted on February 20, 2014. ECF No. 23. His Complaint was entered on April 28, 15 2014. ECF No. 3. Plaintiff filed an Amended Complaint on June 17, 2014. ECF No. 7. Plaintiff 16 17 filed a Second Amended Complaint on November 10, 2014. ECF No. 13. 18 Plaintiff voluntarily dismissed Defendant Stroud on May 15, 2014, which the Court granted 19 on November 14, 2014. ECF Nos. 6 and 14. Plaintiff’s Second Amended Complaint was screened 20 and allowed to proceed on November 14, 2014. ECF No. 14. 21 Plaintiff filed a Motion for Summary Judgment on July 30, 2015. ECF No. 37. Defendants 22 23 24 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. 25 26 27 28 1 Plaintiff’s Second Amended Complaint mentions Assistant Warden Wickham in the headings section for Count III, but it is clear from the sworn statements that allegations for Count II are addressed to Wickham, and not those for Count III. Plaintiff offers no specific details of Wickham’s involvement in Count III. Caseworker Kuloloia was also dropped as a named defendant in the Seconded Amended Complaint as to Count III. -2- 1 III. 2 Summary judgment is appropriate when the pleadings, depositions, answers to 3 LEGAL STANDARD interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 4 5 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 6 Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering 7 the propriety of summary judgment, the court views all facts and draws all inferences in the light 8 most favorable to the nonmoving party. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 9 (9th Cir. 2011). If the movant has carried its burden, the non-moving party “must do more than 10 11 simply show that there is some metaphysical doubt as to the material facts . . . . Where the record 12 taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 13 genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal 14 quotation marks omitted). 15 16 17 18 19 IV. 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 20 21 UNDISPUTED/DISPUTED FACTS A. Undisputed facts On March 7, 2013, CO Henry observed that Plaintiff and his cell mate were not getting 22 23 along. Henry entered the cell and placed the Plaintiff in wrist restraints and placed the Plaintiff in 24 the unit’s shower cage. Henry double locked the restraints to prevent the restraints from adjusting 25 tighter or looser. Approximately twenty minutes after being placed in the shower, Plaintiff stated 26 27 28 2 To the extent that the Court’s written order conflicts with the findings or holdings from the hearing, this written order controls. -3- 1 his wrist restraints were too tight and that his left side was numb. Henry looked at Plaintiff’s 2 restraints but did not see any squeezing of Plaintiff’s wrist. A “man down” was called by Henry. 3 Medical staff arrived and examined Plaintiff and took Plaintiff to the infirmary for further 4 5 6 examination. The examination determined there were no bruises, lacerations, or hematomas, and Plaintiff was prescribed Ibuprofen for pain. 7 From March 7, 2013 until August 30, 2014, Plaintiff submitted multiple kites and 8 grievances regarding his medical and mental health treatment and was seen on multiple occasions 9 by doctors and nurses, typically within a week of his submission of a medical kite requesting to 10 11 see a doctor. Plaintiff had two x-rays taken in April 2013. On May 9, 2014, Plaintiff was seen by 12 the nurse for a sick call and stated he has no problems at this time and does not need an 13 appointment. 14 15 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 16 17 outside in the yard every day. On July 16, 2013, Plaintiff filed a grievance regarding his conditions 18 of confinement and complained he was not getting enough exercise and enough time for showering 19 or bathing. Plaintiff submitted further grievances regarding these same concerns as to his 20 conditions of confinement while in segregation in July and August. Prison officials responded and 21 advised Plaintiff his request was reviewed, and that their records indicated he was let out for 22 23 recreation on several days. They denied the grievance. They did not address Plaintiff’s concerns 24 regarding not being able to bath or shower regularly. Plaintiff was sent back to segregated housing 25 from May 29, 2014 to August 29, 2014. 26 27 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 28 -4- 1 second stint) in administrative segregation. He was only let out of his cell about once a week for 2 ten minutes to shower or bathe. He also claimed that he had no functioning toilet while in 3 segregation. When he was let out of segregation for the one hour irregularly, he was generally not 4 5 provided drinkable water in the summer months with temperatures over 100 degrees Fahrenheit. 6 Defendants do not dispute these latter allegations. 7 B. Disputed Facts 8 9 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 10 11 argues that he did properly exhaust and filed first and second level grievances for all his claims, 12 that Defendant refuses to provide these grievances in discovery, and that he is unable to provide 13 these records because he lost a legal box when he was transferred to another facility. 14 15 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. 16 17 He further alleges that there was no penological reason for his exercise to be so restricted and that 18 this level of restriction continued even after prison officials, including the Warden Neven and 19 Assistant Warden Wickham, were made aware of the restrictions. He claims that he was on a “24 20 hour lockdown” for most of the seven months that he was in segregation. The Defendants dispute 21 that he was so restricted for this entire time but they do not assert the amount of time that they 22 23 24 25 26 27 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 28 -5- 1 The Eighth Amendment's prohibition against cruel and unusual punishment protects 2 prisoners not only from inhumane methods of punishment but also from inhumane conditions of 3 confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006), opinion amended on 4 5 reh'g, No. 04-35608, 2006 WL 3437344 (9th Cir. Nov. 30, 2006). “A prisoner claiming an Eighth 6 Amendment violation [for conditions of confinement] must show (1) that the deprivation he 7 suffered was objectively, sufficiently serious; and (2) that prison officials were deliberately 8 indifferent to his safety in allowing the deprivation to take place.” Id. (internal quotation marks 9 omitted). “Although the routine discomfort inherent in the prison setting is inadequate to satisfy 10 11 the objective prong of an Eighth Amendment inquiry, those deprivations denying the minimal 12 civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth 13 Amendment violation.” Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). 14 15 “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 16 17 duration of a deprivation of these necessities must be considered in determining whether a 18 constitutional violation has occurred.” Id. “There is substantial agreement among the cases in this 19 area that some form of regular outdoor exercise is extremely important to the psychological and 20 physical well-being of the inmates.” Spain v. Procunier, 600 F.2d 189, 199 (9th Cir. 1979). In 21 Spain, the Ninth Circuit upheld the district court’s finding that, in that case, the prison’s denial of 22 23 exercise five days a week for one hour a day constituted an eighth amendment violation. Id. Post- 24 Spain, the Ninth Circuit has continued to hold that “[d]eprivation of outdoor exercise violates the 25 Eighth Amendment rights of inmates confined to continuous and long-term segregation.” Keenan 26 v. Hall, 83 F.3d 1083, 1089 (9th Cir. 1996) opinion amended on denial of reh'g, 135 F.3d 1318 27 (9th Cir. 1998). 28 -6- 1 2 3 2. Exhaustion of Administrative Remedies a. Legal Standard First, Defendants contend that Plaintiff did not exhaust all administrative remedies for 4 5 Count I. The Prison Litigation Reform Act (PLRA) requires that before bringing a Section 1983 6 action, a prisoner must exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). 7 Exhaustion must be proper, meaning that the plaintiff must proceed through each step of the 8 prison’s grievance procedure. Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir. 2009) (citing 9 Woodford v. Ngo, 548 U.S. 81, 93 (2006)). The level of detail needed in a grievance to properly 10 11 12 exhaust a claim under the PLRA depends on the applicable grievance procedures of each individual prison. Jones v. Bock, 549 U.S. 199, 218 (2007). 13 NDOC Administrative Regulation (AR) 740 sets forth the grievance procedure applicable 14 to Nevada inmates. There are three levels of grievances within AR 740: an Informal grievance 15 (AR 740.05), a First-Level grievance (AR 740.06), and a Second-Level grievance (AR 740.07). 16 17 Id. at 4-7. Inmates who are dissatisfied with a decision at a lower level may appeal the decision by 18 filing a higher-level grievance. Once a decision on the merits has been rendered on a Second-Level 19 grievance, the NDOC administrative grievance process is considered exhausted. AR 740 also 20 provides the time frame in which a grievance must be filed and provides that an informal grievance 21 must be filed within six (6) months for issues involving personal injury, medical claims, or any 22 23 other tort claims including civil rights claims. 24 In the absence of a prison policy or procedure specifying a particular level of detail at which 25 grievances must be stated, a grievance is sufficient for exhaustion purposes “if it alerts the prison 26 to the nature of the wrong for which redress is sought.” Griffin, 557 F.3d at 1120. This is because 27 “[t]he primary purpose of a grievance is to alert the prison to a problem and facilitate its resolution, 28 -7- 1 not to lay groundwork for litigation.” Id.; see also Jones, 549 U.S. at 204 (“Requiring exhaustion 2 allows prison officials an opportunity to resolve disputes concerning the exercise of their 3 responsibilities before being haled into court.”). 4 Where an exhaustion defense is raised in a motion for summary judgment, disputed 5 6 questions of fact should be resolved by the judge rather than the jury. Albino, 747 F.3d at 1170- 7 71. “If the district judge holds that the prisoner has exhausted available administrative remedies, 8 that administrative remedies are not available, or that a prisoner’s failure to exhaust available 9 remedies should be excused, the case may proceed to the merits.” Id. at 1171. “[T]he defendant in 10 11 12 13 14 15 a PLRA case must plead and prove nonexhaustion as an affirmative defense.” Albino, 747 F.3d at 1171. b. Analysis On July 7, 2013, Plaintiff submitted an Informal grievance regarding his conditions of confinement claim. In his grievance, Plaintiff stated that he was not receiving the appropriate 16 17 amount of exercise time and bathing per week and felt that it was a violation of his constitutional 18 rights. Beginning a month later, and prior to receiving a response to his informal grievance, 19 Plaintiff submitted additional informal grievances on the same issues on August 15, 2013, August 20 16, 2013, and August 19, 2013. Defendant denied these grievances as duplicative, since Plaintiff 21 had not received a response to his first grievance, and Defendant does not recognize these later 22 23 24 25 26 27 grievances to qualify as first, or second level grievances. More than two months after Plaintiff filed his informal grievance, on September 4, 2013, prison officials denied the Informal Grievance. Defendants argue that the Plaintiff did not appeal the Informal grievance decision, never filing a First-Level grievance, and therefore he failed to exhaust his claim as to Count I. In response, Plaintiff argues that he did file a first, second, and third level grievance but the 28 -8- 1 Defendants have failed to provide evidence of such. Opp’n at 17. Plaintiff states that, because he 2 lost his legal box during a transfer, he does not have the documents to prove this. Id. In reply, 3 Defendants argue that there is no factual support that corroborates either of Plaintiff’s allegations. 4 5 Associate Warden Nash monitors all inmate grievances for accuracy and confirms that inmate 6 grievances are kept in the ordinary course of business. Associate Warden Nash further declared 7 that the grievance records provided to this Court are true and correct copies. 8 9 The Court finds that Plaintiff sufficiently exhausted his administrative remedies or can be excused from fully exhausting them. The PLRA’s exhaustion requirement applies only to 10 11 “available” remedies, meaning those that are, as a practical matter, “capable of use” by the inmate. 12 Albino, 747 F.3d at 1171. Under the PLRA, the defendant has the burden to show that there was 13 an available administrative remedy that the plaintiff did not exhaust. Id. at 1172. Once that is done, 14 the plaintiff has the burden of demonstrating that the generally available administrative remedies 15 were, in his particular case, “effectively unavailable to him.” Id. The plaintiff may do so by 16 17 “showing that the local remedies were ineffective, unobtainable, unduly prolonged, inadequate, or 18 obviously futile.” Id. (quoting Hilao v. Estate of Marcos, 103 F.3d 767, 778 n.5 (9th Cir. 1996)); 19 See Williams v. Paramo, 775 F.3d 1182, 1191 (9th Cir. 2015). Defendants have the ultimate burden 20 of proof, however. Id. The Ninth Circuit held “that where prison officials declined to reach the 21 merits of a particular grievance for reasons inconsistent with or unsupported by applicable 22 23 24 regulations, administrative remedies were effectively unavailable.” Albino, 747 F.3d at 1173 (citing Sapp v. Kimbrell, 623 F.3d 813 (9th Cir.2010)). 25 In this case, Defendants met their initial burden by showing that the NDOC has established 26 procedures for filing grievances and that Plaintiff did not technically exhaust the grievance process 27 as to his conditions of confinement claim in Count III. The Court finds that Plaintiff also met his 28 -9- 1 burden of production by showing that administrative remedies were effectively unavailable to him 2 to seek relief. The parties agree that Plaintiff filed an informal grievance. Having heard no response 3 for over a month, he subsequently filed three additional grievances where his conditions of 4 5 confinement remained the same for another month before his grievance was denied. This pattern 6 shows a protracted process where Plaintiff would be justified in believing that his efforts to file 7 further grievances would be futile. Plaintiff did what he could from his segregated unit to alert 8 prison officials to his concerns, but, the pattern and response demonstrates that administrative 9 remedies were effectively unavailable. See Albino, 747 F.3d at 1173. 10 11 Even if administrative remedies had been available as to Count III, the Court finds that 12 Plaintiff successfully exhausted those remedies. The Ninth Circuit has held that a grievance is 13 sufficient as long as it “alerts the prison to the nature of the wrong for which redress is sought.” 14 Griffin, 557 F.3d at 1120. This standard comports with the purposes of the PLRA’s exhaustion 15 requirement: to give the prison the opportunity to address complaints internally and take corrective 16 17 18 action, to deter frivolous cases, and to develop an administrative record that clarifies the dispute for the court. Brown, 422 F.3d at 936. 19 In this instance, the Court finds that Plaintiff exhausted his administrative remedies as to 20 Count III because the other grievances he submitted regarding his conditions of confinement were 21 sufficient to “alert the prison to the nature of the wrong for which redress is sought.” Griffin, 557 22 23 F.3d at 1120. The Court also finds that requiring Plaintiff to file further grievances regarding his 24 conditions of confinement claim would not serve the purposes of exhaustion. The numerous 25 grievances filed on the same issue provided Defendants with ample time and opportunity to take 26 corrective action. Prison officials were clearly alerted to Plaintiff’s concerns from his several 27 28 - 10 - 1 identical grievances. These reasons provide an alternative basis for denying summary judgment 2 as to Count III for failure to exhaust. 3 Finally, the Court finds that even if Plaintiff did not technically exhaust in the manner set 4 5 forth under NDOC Guidelines he can be excused from doing so. He was seeking to file grievances 6 while under allegedly restrictive and psychologically harmful confinement conditions for many 7 months. He filed several grievances outlining his concerns. He can be excused from having to 8 file further grievances under these conditions after he received the delayed denial. 9 Proving non-exhaustion is the defendant’s burden, and the Court finds Defendants have 10 11 failed to meet that burden as to Count III. Therefore, summary judgment is denied on the issue of 12 exhaustion as to Count III. Having denied Defendant’s affirmative defense of failure to exhaust 13 as to Plaintiff’s Count III, the Court addresses the issue on the merits. 14 15 3. Recreational Time And Insufficient Sanitation Defendants argue that Plaintiff is not entitled to summary judgment since the evidence 16 17 shows he received some recreational time. For example, the response to Plaintiff’s informal 18 grievance indicates he received recreational time. Defendants further argue that declarations from 19 other inmates do not address whether Plaintiff was denied recreational time and do not rebut the 20 fact that he did receive outdoor recreational time. Defendants do not respond to Plaintiff’s claims 21 about not being permitted to shower regularly and not having a functioning toilet. 22 23 The Court finds, based upon undisputed facts and the disputed facts, that Plaintiff has 24 produced sufficient evidence to proceed to trial on his conditions of confinement claim concerning 25 outdoor exercise and sanitation/hygiene, and that a reasonable jury could find that under the 26 specific circumstances of his case, requiring a prisoner to remain alone, long-term, in a small cell 27 in administrative segregation for 23-24 hours a day, 5-6 days a week, may constitute cruel and 28 - 11 - 1 unusual punishment under the Eighth Amendment. See Spain, 600 F.2d at 199; See also Keenan 2 v. Hall, 83 F.3d 1083, 1089-91 (9th Cir. 1996), opinion amended on denial of reh'g, 135 F.3d 1318 3 (9th Cir. 1998)(noting possible violations related exercise and hygiene); Allen v. Sakai, 48 F.3d 4 5 1082, 1087 (9th Cir. 1994)(noting possible violation for allowing exercise of only 45 minutes per 6 week for six weeks). In this case, it is undisputed that Plaintiff was in segregated housing for 7 seven consecutive months, that he was not let out of his cell on a regular or daily basis for exercise, 8 that Defendants never articulated a reason for this restrictive schedule, that he was not permitted 9 to bath or shower more than weekly, that he had no regular functioning toilet, and that those few 10 11 times when he was let out of his cell he had no potable water. It is disputed whether Plaintiff spent 12 most if not almost all of his days during the seven months in his cell on “24 hour lockdown” with 13 no running water and no functioning toilet. The Court finds that, if Plaintiff spent seven 14 consecutive months in segregation in his cell for 24 hours a day with a nonfunctioning toilet, with 15 an exception for leaving for showering once a week and recreation once every five to 10 days (or 16 17 18 less) and without an articulated penological reason, this could rise to the level of an 8th Amendment violation if prison officials were aware of such conditions of confinement. Id. 19 20 21 4. Causal Link Between Injury and Defendants’ Conduct a. Legal Standard 22 Plaintiff alleges that Warden Neven and Associate Warden Howell were aware of the 23 restrictive and potentially unconstitutional nature of his confinement in 2013. Generally, under 42 24 U.S.C. § 1983, “[l]iability arises . . . only upon a showing of personal participation by the 25 26 defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citation omitted). “Although there 27 is no pure respondeat superior liability under section 1983, a supervisor is liable for the acts of his 28 subordinates if the supervisor participated in or directed the violation, or knew of the violations of - 12 - 1 subordinates and failed to correct them.” Preschooler II v. Clark County School Bd. of Trustees, 2 479 F.3d 1175, 1182 (9th Cir. 2007) (citations and internal quotation marks omitted). 3 “A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his 4 5 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection 6 between the supervisor's wrongful conduct and the constitutional violation.” Starr v. Baca, 652 7 F.3d 1202, 1207 (9th Cir. 2011). This causal connection can be established by “setting in motion 8 a series of acts by others, or by knowingly refus[ing] to terminate a series of acts by others, which 9 [the supervisor] knew or reasonably should have known would cause others to inflict a 10 11 constitutional injury.” Id. (alterations in original) (citations and internal quotation marks omitted). 12 A supervisor, therefore, “can be liable in his individual capacity for his own culpable action 13 or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the 14 constitutional deprivation; or for conduct that showed a reckless or callous indifference to the 15 rights of others.” Id. (internal quotation marks omitted); see also Iqbal, 556 U.S. at 676 (“Because 16 17 18 19 20 21 vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official's own individual actions, has violated the Constitution.”). b. Discussion In this case, Defendants argue that Plaintiff has not proffered sufficiently detailed evidence of direct participation in any alleged violation to permit the claim against Warden Neven and 22 23 Assistant Warden Howell to proceed. The Court disagrees. 24 The Court finds that the claim may proceed against Warden Neven and Assistant Warden 25 Howell under a theory of supervisory liability for two reasons. First, the Court finds that the 26 position of final responder is a supervisory role from which the Court can infer Defendants “knew 27 of the violations of subordinates and failed to correct them.” Preschooler II v. Clark County School 28 - 13 - 1 Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007). In this case, Plaintiff has asserted through 2 sworn testimony that Defendants Neven and Howell had direct knowledge through grievances of 3 Plaintiff’s alleged unconstitutional conditions of confinement and did nothing about it despite 4 5 having the authority to address his concerns. He states that they had “subjective” knowledge of 6 his conditions of confinement through grievances during the period he was so confined. They 7 allegedly received the grievances and were the final responders to them. After having been so 8 informed, they allegedly did nothing while Plaintiff continued to experience these conditions of 9 confinement for several weeks and months after they had been informed. Such an allegation 10 11 12 supports an argument that the Defendants demonstrated a reckless indifference to the violation of Plaintiff’s rights. 13 Second, and relatedly, Plaintiff’s testimony that Neven and Howell were aware of his 14 alleged unconstitutional conditions of confinement and did nothing about it, supports possible 15 supervisory liability because of their alleged acquiescence or promulgation of this allegedly 16 17 unconstitutional policy related to conditions of confinement that caused harm to inmates in 18 segregated housing including Plaintiff. See Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011). 19 For these two reasons, Plaintiff’s claim against Warden Neven and Associate Warden Howell may 20 proceed. 21 5. Qualified immunity 22 23 a. Legal Standard 24 Last, Defendants Neven and Howell argue that they are entitled to qualified immunity. 25 “The doctrine of qualified immunity protects government officials from liability for civil damages 26 insofar as their conduct does not violate clearly established statutory or constitutional rights of 27 which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). 28 - 14 - 1 Qualified immunity is an immunity from suit rather than a defense to liability, and “ensures that 2 officers are on notice their conduct is unlawful before being subjected to suit.” Tarabochia v. 3 Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014). 4 5 In deciding whether officers are entitled to qualified immunity, courts consider, taking the 6 facts in the light most favorable to the nonmoving party, whether (1) the facts show that the 7 officer’s conduct violated a constitutional right, and (2) if so, whether that right was clearly 8 established at the time. Id. 9 Under the second prong, courts “consider whether a reasonable officer would have had fair 10 11 notice that the action was unlawful.” Id. at 1125 (internal quotation marks omitted). While a case 12 directly on point is not required in order for a right to be clearly established, “existing precedent 13 must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 14 S.Ct. 2074, 2083 (2011). This ensures that the law has given officials “fair warning that their 15 conduct is unconstitutional.” Ellins, 710 F.3d at 1064. Further, the right must be defined at “the 16 17 appropriate level of generality . . . [the court] must not allow an overly generalized or excessively 18 specific construction of the right to guide [its] analysis.” Cunningham v. Gates, 229 F.3d 1271, 19 1288 (9th Cir. 2000); see also al-Kidd, 131 S.Ct. at 2084. The plaintiff bears the burden of proving 20 that the right was clearly established. Id. at 1125. 21 In deciding a claim of qualified immunity where a genuine dispute of material fact exists, 22 23 the court accepts the version asserted by the non-moving party. See Bryan v. MacPherson, 630 24 F.3d 805, 823 (9th Cir. 2010). Summary judgment must be denied where a genuine issue of material 25 fact exists that prevents a finding of qualified immunity. Sandoval v. Las Vegas Metropolitan 26 Police Dept., 756 F.3d 1154, 1160 (9th Cir. 2014). 27 b. Discussion 28 - 15 - 1 Defendant argues that Defendants Warden Neven and Howell are entitled to qualified 2 immunity because they did not have enough information regarding Plaintiff’s conditions of 3 confinement to understand that his rights were being violated. The Court rejects this claim as 4 5 6 factually contrary to the undisputed and disputed evidence in this case. The Court finds that these defendants are not entitled to qualified immunity. 7 The Court finds that there are genuine issues of material fact as it relates to what Warden 8 Neven and Associate Warden Howell knew about Plaintiff’s conditions of confinement and when 9 they knew it. While the Defendants have asserted that they were not aware of any unconstitutional 10 11 conditions of confinement, the Court first reiterates that Plaintiff has proffered sufficient 12 competent evidence of the existence of unconstitutional conditions of confinement. Plaintiff has 13 alleged that for seven consecutive months he did not receive exercise time every week, that he did 14 not have a functioning toilet, and that he did not have the ability to shower except maybe once a 15 week. 16 17 Moreover, the Court finds that such a constitutional violation would have been clearly 18 established under Ninth Circuit precedent. See Allen v. Sakai, 48 F.3d 1082, 1087 (9th Cir. 1994) 19 (noting the allowing exercise once a week for a six week period was sufficient to create Eight 20 Amendment violation and denying qualified immunity to prison officials) 21 Further, he has provided sworn testimony that Warden Neven became aware of his 22 23 allegedly unconstitutional conditions by at least August 15, 2013 and Associate Warden Howell 24 actually responded to his grievances about the conditions on July 27 and August 4, 2013. 25 Plaintiff’s initial stint of confinement did not end until October 11, 2013. These asserted facts 26 27 28 - 16 - 1 created the possibility that Neven and Howell might have known about unconstitutional conditions 2 of confinement and acquiesced in their continuation for several more months in 2013. 3 3 Based on these facts, the Court finds that depriving an inmate in long-term segregation 4 5 daily outdoor exercise may constitute an Eighth Amendment violation and that this right was 6 clearly established in 2013 and 2014. The Court further finds that there are genuine issues of 7 disputed fact as to whether Neven and Howell were aware of all of the alleged conditions of 8 Plaintiff’s confinement while in segregation and whether they acquiesced in the continuation of 9 these conditions. Therefore, the Court DENIES Defendants Neven and Howell qualified 10 11 immunity. 12 In light of the Court’s findings, the Court therefore DENIES both parties’ motions for 13 summary judgment as to Count III, the conditions of confinement claim. This claim shall proceed 14 to trial. 15 B. Count I - Excessive Force 16 1. Legal Standard 17 18 The Eighth Amendment forbids cruel and unusual punishment. In an excessive force case, 19 prison officials violate the Eighth Amendment if they cause “the unnecessary and wanton infliction 20 of pain.” Hudson v. McMillian, 503 U.S. 1, 5 (1992) (citations and quotation marks omitted); see 21 also Furnace v. Sullivan, 705 F.3d 1021, 1027 (9th Cir. 2013). The “core judicial inquiry” is 22 23 “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously 24 and sadistically to cause harm.” Hudson, 503 U.S. at 6. Courts consider five factors in making this 25 determination: (1) the extent of the injury suffered by the inmate; (2) the need for the use of force; 26 27 3 28 The Court in its analysis in this order focuses on the first seven month stint and not the subsequent three month stint in segregation. Plaintiff’s facts as it relates to the Defendants focus on this initial period. The second shorter period of segregation has insufficient detail for the Court to evaluate possible constitutional violations. - 17 - 1 (3) the relationship between the need and the level of force used; (4) the threat reasonably 2 perceived by the responsible officials; and (5) any efforts made to mitigate the severity of the force 3 used. Furnace, 705 F.3d at 1028-29 (citation and quotation marks omitted). 4 5 2. Analysis 6 Defendants first argue that Plaintiff failed to exhaust his administrative remedies with 7 regards to Count I. The Court does not reach this issue, however, because it finds that, even if 8 Plaintiff had properly exhausted, Defendant Henry is entitled to summary judgment concerning 9 Plaintiff’s excessive use of force claim and would be entitled to qualified immunity. 10 11 The undisputed facts establish that on March 7, 2013, Plaintiff and his cellmate were not 12 getting along. While Plaintiff argues he was not being combative or aggressive towards the CO, 13 Plaintiff does not dispute that he was involved in a dispute with his cellmate. Defendants argue 14 that, to maintain and restore discipline and prevent a potential fight from breaking out, Henry put 15 Plaintiff in wrist restraints and placed him in the shower to separate him from his cellmate. Henry 16 17 double-locked the restraints to prevent Plaintiff from evading the restraints. Upon Plaintiff’s 18 complaint that the restraints were too tight, Henry looked at the restraints but did not see any 19 squeezing of Plaintiff’s wrists; Henry did not adjust the restraints. While the parties dispute 20 whether Plaintiff lost consciousness, there is no evidence that Plaintiff suffered wrist or other 21 injuries, including loss of consciousness, as a result of the tight handcuffs. Plaintiff’s medical 22 23 24 records from the examination that day found “no bruises, lacerations, or hematomas.” ECF No. 54, Ex. C. Nor do the medical records reference Plaintiff’s loss of consciousness. Id. 25 Additionally, Henry call for medical staff to address Plaintiff’s injury complaints. Plaintiff 26 was taken to the infirmary to address his alleged injuries. Henry did not simply put him back in 27 the cell and ignore him for hours. 28 - 18 - 1 Further, as of 2015, Plaintiff affirmatively stated he was no longer experiencing wrist pain. 2 On May 9, 2014, Plaintiff was seen by the nurse for a sick call and stated he has no problems at 3 this time and does not need an appointment. On August 30, 2014 Plaintiff was seen by nursing 4 5 6 upon his arrival at Ely State Prison, with findings for no need for continuing care. The only chronic pain noted was knee pain. 7 Therefore, the Court finds that Defendant Henry did not exert excessive force on Plaintiff 8 by handcuffing him on March 7, 2013. Applying the “core judicial inquiry” to the facts at hand, 9 the Court finds that the “force was applied in a good-faith effort to maintain or restore discipline” 10 11 by preventing a potential fight from occurring between Plaintiff and his cell mate, and not 12 “maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6. Further, the fact that Henry 13 and medical staff later took Plaintiff to the infirmary to treat his wrist and alleged loss of 14 consciousness contradicts any argument that the handcuffing was done for a malicious purpose. 15 Moreover, the Court finds that even if Henry’s conduct could constitute a constitutional 16 17 violation. He would be entitled to qualified immunity. Even if he had placed the handcuffs on 18 tightly and potentially painfully, there is no clearly established law of which he would be aware 19 that would identify his conduct to be unconstitutional in light of the fact that he was placing the 20 handcuffs on for a legitimate penological security reason and he took the Plaintiff to the infirmary 21 after being told of the Plaintiff’s discomfort. 22 23 The Court therefore GRANTS Defendant’s motion as to Count I. 24 25 26 27 C. Count II - Delay and Denial of Medical Treatment 1. Legal Standard To establish an Eighth Amendment claim against prison officials for medical treatment, an 28 - 19 - 1 incarcerated plaintiff must show deliberate indifference to his serious medical needs. Peralta v. 2 Dillard, 744 F.3d 1076, 1081 (9th Cir. 2014) (citing Estelle v. Gamble, 429 U.S. 97, 104 (1976)). 3 The Ninth Circuit has established a two-part test for deliberate indifference. First, the 4 5 plaintiff must establish a serious medical need, meaning that failure to treat the condition could 6 result in “significant injury or the unnecessary and wanton infliction of pain.” Id. (quoting Jett v. 7 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotation omitted)). Second, the plaintiff 8 must demonstrate the defendant’s deliberate indifference to the need, meaning that the prison 9 official “knows of and disregards an excessive risk to inmate health.” Id. (quoting Farmer v. 10 11 Brennan, 511 U.S. 825, 837 (1994)). 12 The defendant’s indifference to or interference with the plaintiff’s medical care must be 13 intentional; negligence will not suffice to state a deliberate indifference claim. Jett, 439 F.3d at 14 1096. Further, the plaintiff must show that harm resulted from the defendant’s indifference, 15 although the harm need not necessarily be substantial. Id. 16 17 2. Analysis 18 Defendants first argue that Plaintiff’s third Count fails because he did not adequately 19 exhaust his administrative remedies. Even if Plaintiff exhausted his remedies as to his deliberate 20 indifference claim, however, the Court finds that the Defendants are entitled to summary judgment 21 and qualified immunity on this claim. Therefore, the Court does not reach the question of whether 22 23 Plaintiff adequately exhausted. 24 Plaintiff cannot establish the existence of a “serious medical need.” While he may have, at 25 best, suffered some minor injury to his wrist. No objective evidence suggests that the injury was 26 anything more than a slight injury if at all. Plaintiff’s medical records show that there was no 27 redness, swelling, lacerations, or hematomas on Plaintiff’s wrist, and Plaintiff had full range of 28 - 20 - 1 motion and strength which is evidence that Plaintiff did not have a serious medical need. X-rays 2 of the wrist did not show any acute trauma or damage to his wrist. The Court thus agrees that 3 Plaintiff has failed to demonstrate that his alleged injury to his wrist constituted a serious medical 4 5 need leading to a constitutional violation. 6 Additionally, to the extent the alleged injury could be considered a serious injury, HDSP 7 staff, particularly Dr. Chang and Assistant Warden Wickham, responded to the Plaintiff’s medical 8 needs continuously, and were not deliberately indifferent to his medical needs. The medical 9 records show that Plaintiff was seen immediately after the handcuffing incident, and subsequently, 10 11 within days of kiting about medical issues. For example, Plaintiff submitted a medical kite dated 12 April 3, 2013 and was seen a week later on April 11, 2013. After submitting a medical kite dated 13 April 23, 2013, he was seen three days later on April 26, 2013, when an x-ray was performed, and 14 again on May 16, 2013, by the doctor. These records, along with others, indicate that neither Chang 15 nor Wickham purposefully acted or failed to respond to Plaintiff’s medical needs. Chang saw the 16 17 Plaintiff approximately four times following the incident. In addition, Wickham responded to 18 grievances in accordance with NDOC policies. The Court finds that Plaintiff was treated 19 immediately after the handcuff incident, on March 7, 2013, as well as several other times 20 subsequently. Plaintiff therefore cannot establish that the Defendants were deliberately indifferent 21 to any serious medical need. 22 23 Even if the delays in treatment could constitute a constitutional violation, which they do 24 not here, the Court would still find that the Defendants would be entitled to qualified immunity on 25 this claim. There is no clearly established law that would have put the Defendants on notice that 26 the relatively minor delays in responding to Plaintiff’s medical requests would represent a 27 constitutional violation. 28 - 21 - 1 The Court GRANTS Defendants’ motion with respect to Count II. 2 3 VI. CONCLUSION 4 5 6 7 8 9 IT IS ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED. ECF No. 37. IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No. 54) is GRANTED in part and DENIED in part. Defendant’s Motion is GRANTED as to Counts I and II. Defendant’s Motion is DENIED as to Count III, which will proceed to trial. 10 11 12 DATED March 20, 2017. 13 14 15 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 - 22 -

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