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Loren D. Hammond, #A1046824 v. Department of Public Safety

December 13, 2011


The opinion of the court was delivered by: J. Michael Seabright United States District Judge


Pro se Plaintiff Loren D. Hammond ("Plaintiff"), formerly an inmate at the Halawa Correctional Facility ("HCF"), brings this action pursuant to 42 U.S.C. § 1983, arising out of a group strip search that occurred while he was incarcerated at HCF.

Before the court is Defendants HCF Warden Nolan Espinda's ("Espinda"), adult correctional officer ("ACO") Sergeant Melvin Kiaaina's ("Kiaaina"), and ACO Lieutenant Jeannie Ueda's ("Ueda") Motion for Summary Judgment. Mot., ECF No. 98. Defendants seek dismissal of this action:

(1) pursuant to 42 U.S.C. § 1997e(e), for Plaintiff's failure to allege a physical injury; (2) pursuant to 42 U.S.C. § 1997e(a), for Plaintiff's failure to exhaust his administrative remedies; and (3) because Kiaaina is entitled to qualified immunity and Espinda and Ueda were not personally involved in the strip search. See Mem. in Support, ECF 98-1, 4-8. For the following reasons, the Motion is DENIED IN PART and GRANTED IN PART and this action is DISMISSED.


A. Plaintiff's Claims

In Count I, Plaintiff alleges that Kiaaina strip searched him in an area visible to other inmates and guards, violating his Fourth Amendment rights to be free from unreasonable searches and seizures. First Amended Complaint ("FAC"), ECF No. 58 at 5. In Count II, Plaintiff alleges that Kiaaina violated the Eighth Amendment when he verbally harassed and berated Plaintiff the next day, after Plaintiff's wife threatened to report Kiaaina to prison officials and the American Civil Liberties Union regarding the strip search. Id. at 6. Plaintiff claims that Kiaaina retaliated against him for Plaintiff's wife's threats, and fabricated false charges against him, resulting in Plaintiff's transfer to the special holding unit ("SHU").*fn1 Id. Finally, in Count III, Plaintiff alleges that Kiaaina violated the Fourteenth Amendment's guarantee of "equal protection of the law" by "treating prisoners in a fashion so 'brutal' and 'offensive to human dignity' as to 'shock the conscience.'" Id. at 7. Plaintiff also claims a violation of the Hawaii Constitution.

Plaintiff alleges no specific claims against Espinda and Ueda, other than his allegation that he worried Ueda might retaliate against him. See id. at 5, Count I (stating "for the entire time . . . [Plaintiff] was anxious and terrified that Kiaaina, . . . and Ueda were going to retaliate"). Plaintiff generally claims that Ueda is liable for failing to oversee her subordinates, and Espinda is liable as superintendent of the prison. Id. at 2-3. Plaintiff alleges that Defendants' actions caused him humiliation, embarrassment, "and retaliation[,]" and requests compensatory damages and costs.

B. Uncontested Facts *fn2

During recreation on August 30, 2009, Plaintiff saw HCF inmate Albert A. Pedro collide with another inmate and lose consciousness during a basketball game. No member of HCF's correction staff, however, observed the collision and thus did not know what caused Pedro's injury. Kiaaina Decl., ECF No. 104-2 at 2 ¶ 3; Pl.'s Opp'n, ECF No. 128 at 8; Pl.'s Decl., ECF No. 64 ¶¶ 6-8. When Pedro regained consciousness, he was taken into the prison's control booth and Kiaaina ordered all of the inmates present at recreation, including Plaintiff, to assemble in the atrium next to the recreation yard, which fronted the windows of Module 3. Kiaaina and three other guards then strip searched these inmates to determine whether they exhibited any signs suggesting a fight, assault, or gang activity, such as reddening of the skin, bruising, or weapons. Kiaaina Decl., ECF No. 104-2 at 2 ¶ 3; Pl.'s Opp'n, ECF No. 128 at 8-9.

The strip search was conducted quickly; Kiaaina estimates the whole incident, from the time Pedro was discovered unconscious to the conclusion of the strip search, took no more than eight minutes. Kiaaina Decl., ECF No. 104-2 ¶ 3. The inmates were searched in groups of four, instructed to disrobe one at a time, visually inspected for marks indicating that a fight occurred, and then allowed to redress. Kiaaina Decl., ECF No. 104-2 at 2 ¶ 3; Pl.'s Opp'n, ECF No 128 at 8-9. The inmates were not touched or cavity searched. Kiaaina Decl., ECF No. 104-2 at 2 ¶ 3; Pl.'s Opp'n, ECF No 128 at 9. No signs of a fight or weapons were discovered.

The next day, Plaintiff called his wife and told her about the strip search; she then called Kiaaina and complained. Kiaaina ordered Plaintiff and the other strip searched inmates to report to his office. When they arrived, Kiaaina asked whose wife, mother, or girlfriend had called, and Plaintiff identified himself.

Plaintiff alleges that Kiaaina began to berate him. Pl.'s Opp'n at 10-11; Pl.'s Decl., ECF No. 64 ¶¶ 12-13. Kiaaina claims that Plaintiff used obscene language and refused a direct order. Kiaaina Decl., ECF No. 104-2 at 3 ¶ 9. Plaintiff admits that he "yelled back at Sgt. Kiaaina, 'What you did was wrong and you know it!'" Pl.'s Opp'n at 11. Plaintiff also admits that he continued reading notices on Kiaaina's office wall, despite Kiaaina's direct orders to stop and sit down. Id. ¶¶ 16-17.

Kiaaina sent Plaintiff to the medical unit and wrote an incident report regarding the incident. Plaintiff was then taken to the SHU on orders of the Watch Commander, Captain Francis Hun. On September 30, 2009, the adjustment committee found Plaintiff guilty of using abusive or obscene language to a staff member. See Pl.'s Opp'n, ECF No. 128 at "Notice of Report of Misconduct and Hearing."

C. Procedural History

Plaintiff filed this action on December 15, 2009. ECF No. 1. After several attempts, Plaintiff was granted leave to file his FAC on October 21, 2010, which was ordered served on Defendants on November 5, 2010. ECF Nos. 55 and 58. On August 9, 2011, Defendants moved for summary judgment and the matter was set for hearing on October 17, 2011. ECF Nos. 98, 100. Defendants filed a Supplemental Brief on August 26, 2011. ECF No. 104.

Plaintiff thereafter contacted the court numerous times seeking an extension of time to respond to Defendants' Motion and/or to reschedule the Motion, complaining that he was not receiving adequate access to the law library, writing materials, a typewriter, or envelopes and stamps to mail his Opposition. See ECF Nos. 102, 106, 111, 113, 125, 127.*fn3 The court held several status conferences on Plaintiff's allegations, instructed Hawaii Department of Public Safety ("DPS") officials to look into the matter, and requested responses from Defendants' attorney. See, e.g., ECF Nos. 103, 104, 105, 110. The court twice granted Plaintiff's requests for extension of the date to file his Opposition and twice rescheduled the hearing date. See ECF Nos. 113, 115, 121. Despite these accommodations, and although Plaintiff had been released from prison days earlier, Plaintiff failed to attend the hearing on December 5, 2011, and failed to submit his Opposition. The court, nonetheless, was able to contact Plaintiff by telephone and directed him to file his Opposition before the close of business on December 5, 2011, which he did. ECF No. 128. As such, the court considers the Opposition and its exhibits in deciding this Motion and determines that this matter can be decided without oral argument. Local Rule 7.2(d).


Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). "When the moving party has carried its burden under Rule 56 its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation ...

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