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Pitts v. Espinda

United States District Court, D. Hawaii

February 8, 2016

JOSEPH PITTS, #A0259019, Plaintiff,
NOLAN ESPINDA, et al., Defendants.



Before the court is pro se Plaintiff Joseph Pitts’ civil rights Complaint. Compl., Doc. No. 1. Plaintiff is a convicted, unsentenced felon who is incarcerated at the Halawa Correctional Facility (“HCF”).[1] He alleges Hawaii Department of Public Safety (“DPS”) and HCF prison officials violated the Eighth and Fourteenth Amendments, and Hawaii Revised Statutes (“HRS”) §§ “707-711(A) [sic], 707-712(1)(A), ” and 710-1063, during and after a cell extraction and during two disciplinary proceedings.[2] Id., PageID #18-19.

Plaintiff’s Complaint is DISMISSED in part pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). Specifically, Plaintiff’s excessive force and state common law assault and battery claims against Defendants Botelho, Taylor, Gernler, Keolanui, Magdadaro, Kent, and Captain Aguon state a claim and require an answer.

Plaintiff fails to state excessive force and state common law assault and battery claims against Defendants Lieutenant Ho and J. Tabali, and they are DISMISSED.

Plaintiff’s claims against the DPS Sheriff’s and Internal Affairs Offices and their unidentified officers fail to state a claim and are DISMISSED.

Plaintiff’s claims against Director Espinda and COS Antonio for failure to supervise, discipline, or enforce prison policies and procedures are DISMISSED.

Plaintiff’s due process claims against Adjustment Committee members Morreira, Villalobos, Ueda, Manumaleuna, and Tuifau are DISMISSED.

Plaintiff’s unsworn falsification and delay of medical care claims against Defendant Val DeMello, RN, are DISMISSED.

Plaintiff may file an amended complaint curing the deficiencies in claims dismissed by this order on or before March 4, 2016. In the alternative, Plaintiff may notify the court in writing on or before March 4, 2016, that he will stand on his excessive force and common law assault and battery claims against Defendants Botelho, Taylor, Gernler, Keolanui, Magdadaro, Aguon, and Kent and proceed on those claims only. In that event, the court will order the United States Marshal to serve the Complaint as directed by Plaintiff and those Defendants will be directed to answer.


These facts are taken from the Complaint and accepted as true, but should not be construed as findings by the court. Plaintiff alleges that on or about July 9, 2014, he returned to his cell in HCF’s “high SHU, ”[3] and discovered that his commissary items had not been delivered and that someone had apparently tampered with his food tray. Compl., Doc. No. 1, PageID #6. Plaintiff “immediately” began yelling and kicking his cell door. Id. When he received no response, Plaintiff told ACO Costello to move away because he intended “to throw bodily waste on the floor and window” outside the cell. Id. Plaintiff then threw feces through his tray access slot onto the window, table, and floor outside his cell. Plaintiff then packed his belongings and awaited an unidentified captain’s arrival, anticipating removal from the cell. Plaintiff alleges that while he waited, someone repeatedly slammed his arm in his tray slot, because he “refused to move it and requested to speak to a captain.” Id., PageID #4. He says he then locked his tray slot. Id., PageID #7.

After approximately four hours, Sergeant Segich addressed Plaintiff over the intercom; Plaintiff asked her to come speak with him. Segich arrived covered in plastic for protection and asked Plaintiff if he would lie on the floor and prepare to be handcuffed for removal. Plaintiff became suspicious, and requested to be taken to suicide watch. He then lay on the floor while Defendants Gernler, Magdadaro, Taylor, Botelho, and Keolanui cuffed and carried him outside the cell, while Lieutenant Kent filmed the extraction. Plaintiff was willing to walk, but was later told that he was not allowed to do so because there was feces on the floor and cell door. Plaintiff walked to a van where he was ordered to kneel with his face and chest facing the seat bottom.

Once inside the van, Plaintiff claims “he was immediately attacked till he almost died and defecated on himself.” Id., PageID #10. Plaintiff says a van driver was present during the assault, and asserts that Lieutenant Kent turned the camera off inside the van. Plaintiff alleges that Captain Aguon was “in charge during the extraction, ” and told Plaintiff that he “gave the order to assault” him. Id., PageID #3, #9. Plaintiff says he received a gash inside his mouth, had difficulty breathing, injured his back and shoulder, and now suffers from migraines and dizziness.

Plaintiff was taken to the medical unit, where Nurse Ricky and Defendant DeMello examined him and took pictures. Plaintiff says DeMello failed to record his statements verbatim, note the gash in his mouth, or record that he had defecated on himself in the van. See id., PageID #9-10. He says that when Ricky and DeMello left the examination room, ACO Gernler struck him again. Plaintiff was taken to the Medium SHU, where he was stripped and, after he indicated that he still wanted to be put on suicide watch, he was escorted there. Plaintiff claims that he was not treated for his injuries for “over sixty days.”[4] Id., PageID #9, ¶ 73. He says he filed a grievance regarding the cell extraction on July 16, 2014, #269906, but says the grievance officer refused to process it.

Ten days after the cell extraction, on or about July 19, 2014, ACOs Botelho and Kepa escorted Plaintiff to the medical unit for asthma treatment. Plaintiff says Botelho squeezed his arm tightly and, when they were left alone, said “go ahead and write it up I don’t care, ” referring to the cell extraction. Id., PageID #10. Plaintiff immediately called for a nurse, Kepa came back into the room, and Kepa and Botelho escorted Plaintiff back to his cell. Plaintiff reported this to Captain Aguon, apparently upset that he had contact with Botelho, but Aguon told Plaintiff that he had not received a complaint from Plaintiff regarding the cell extraction or any other alleged misconduct by Botelho against Plaintiff. Id., PageID #11.

Plaintiff lists grievances and letters that he submitted between July 16, 2014, and May 2015: (1) reporting the July 9, 2014 assault and the July 19, 2014 incident with Botelho; (2) requesting medical attention for his shoulder on September 6, 2014; (3) notifying Director Espinda of the alleged assault; (4) requesting orthopedic care; (5) complaining of harassment and denial of medical care; (6) grieving ACO Thomas Liu’s alleged refusal to process Plaintiff’s grievances; and (7) challenging the denial of his grievances and the approval of the two adjustment committee findings of guilt. See id., PageID #11-14. It appears that prison officials responded to most, if not all, of Plaintiff’s submissions. See Id. Plaintiff says he filed complaints regarding the July 9, 2014 cell extraction with the DPS Sheriff’s and Internal Affairs Offices on or about February 27, 2015, but neither pursued charges. Id., PageID #13-14.

Plaintiff alleges he was denied due process during two separate disciplinary proceedings. See id., PageID #14-17. In the first, Plaintiff was charged with several infractions regarding the July 9, 2014 incident. ACO Sheridan investigated the incident and reviewed statements from Defendants Aguon, Ho, Botelho, Taylor, Magdaro, Keolanui, and Gernler, and from non-defendants Sergeants Christianson and Segich. Plaintiff complains these statements were identical but for their signatures, suggesting collusion. Id., PageID 14-15. Plaintiff says Sheridan failed to speak with Plaintiff’s inmate witnesses despite assurances that he would. Plaintiff admits, however, that Sheridan dismissed one charge of disobeying staff orders after his investigation.

On October 16, 2014, Defendants Morreira and Villalobos and committee member Meagan Owens presided over Plaintiff’s First Adjustment Committee hearing. Plaintiff was by then housed in the HCF psychiatric ward. Chairperson Morreira told Plaintiff that he would interview Plaintiff’s witnesses after the hearing and then speak with him. Morreira denied Plaintiff’s request to read all of the witness statements at the hearing, although they were summarized. On December 5, 2014, Morreira and Villalobos met with Plaintiff, and again refused to allow him to read each statement. On December 9, 2014, the First Adjustment Committee found Plaintiff guilty of the remaining three charges (described below), sentenced him to time served in the High SHU, and raised his custody level. Id., PageID #16. Plaintiff remained in the Medium SHU or the psychiatric ward until February 11, 2015, when he was returned to the High SHU. Id., PageID #13.

Plaintiff alleges that he saw ACO Botelho on duty the day after he transferred back to the High SHU. He does not detail what occurred, but he immediately sought a separation order against Botelho.

On March 4, 2015, Botelho charged Plaintiff with threatening him, destroying or damaging government property, and refusing to obey an order. Plaintiff responded to the charges and requested witnesses, but alleges his witnesses were not contacted. On March 9, 2015, Second Adjustment Committee members Tuifau and Ueda held a hearing at which they denied Plaintiff’s request to call witnesses. Plaintiff was apparently found guilty, because he complains that he has never received a response to his appeal, but this is not explicit. Plaintiff provides no other details.

Plaintiff alleges four claims for relief: (1) “Misuse of Force;” (2) “Collusion and Falsifying Injury Records;” (3) “Violation of Plaintiff’s Right to Be Protected;” and (4) “Denial of Due Process.” He seeks declaratory and injunctive relief and compensatory and punitive damages.


The court must screen all civil actions brought by prisoners proceeding in forma pauperis or seeking redress from a government entity, officer, or employee. 28 U.S.C. §§ 1915(e)(2) & 1915A(a). Complaints or claims that are frivolous, malicious, fail to state a claim, or seek relief from a defendant who is immune from relief must be dismissed. 28 U.S.C. §§ 1915(e)(2) & 1915A(b); 42 U.S.C. § 1997e(c)(1).

A complaint that lacks a cognizable legal theory or alleges insufficient facts under a cognizable legal theory fails to state a claim. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff must plead facts that allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

A court must “accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). The court must identify and disregard allegations that “are not entitled to the assumption of truth, ” that is, allegations that are legal conclusions, bare assertions, or merely conclusory. Iqbal, 556 U.S. at 679-80. Then, the court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, the claim may proceed. Id. at 680.

The court is not required to “‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). “[C]onclusory allegations of law and unwarranted inferences are insufficient.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678.

Leave to amend should ordinarily be granted if the plaintiff can correct the defects in the complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). If it is clear the complaint cannot be saved by amendment, dismissal without leave to amend is appropriate. Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).


To state a civil rights claim under 42 U.S.C. § 1983, a plaintiff “must allege a violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

Section 1983 requires a connection between a defendant’s actions and a plaintiff’s allegations. See Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another’s affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

A. DPS Sheriff’s and Internal Affairs Offices and Unidentified Officers

“[I]n the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). “This jurisdictional bar applies regardless of the nature of the relief sought.” Id.; Alabama v. Pugh, 438 U.S. 781, 782 (1978); see also In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999) (holding that the court may raise Eleventh Amendment immunity sua sponte). The State of Hawaii and DPS have not waived their immunity from suit.

Additionally, states, state agencies, and state officials sued in their official capacities are not persons subject to civil rights claims for damages under 42 U.S.C. § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64-66 (1989); see also Hafer v. Melo, 502 U.S. 21, 30 (1991) (clarifying that Eleventh Amendment does not bar suits against state officials in their individual capacities or suits for prospective injunctive relief against state officials in their official ...

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