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Pitts v. Tuitama

United States District Court, D. Hawaii

September 1, 2017

JOSEPH PITTS, #A0259019, Plaintiff,
v.
SGT. TUITAMA, ET AL., Defendants.

          ORDER DISMISSING FIRST AMENDED COMPLAINT IN PART

          J. Michael Seabright Chief United States District Judge

         Before the court is pro se Plaintiff Joseph Pitts's first amended prisoner civil rights Complaint (“FAC”) brought pursuant to 42 U.S.C. § 1983 and state law. ECF No. 16. Pitts names officials and employees of the Hawaii Department of Public Safety (“DPS”) and Halawa Correctional Facility (“HCF”) as Defendants.[1]Pitts alleges that Defendants promulgated an allegedly unconstitutional mail policy, interfered with his legal and personal correspondence, and retaliated against him for filing lawsuits and grievances. The FAC is DISMISSED in part with leave granted to amend as limited below.

         I. SCREENING

         Because Pitts is a prisoner and is proceeding in forma pauperis, the court conducts a pre-answer screening of his pleading pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a). The court must sua sponte dismiss a prisoner's complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks damages from defendants who are immune from suit. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not bear the expense of responding.'” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 2014) (describing pre-answer screening) (“Nordstrom I”) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

         “The standard for determining whether a plaintiff has failed to state a claim upon which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (noting screening pursuant to § 1915A “incorporates the familiar standard applied in the context of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6)”). Rule 12(b)(6) requires that a complaint “contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

         Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. The “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility standard. Id. at 678, 679.

         Leave to amend should be granted if it appears the plaintiff can correct the complaint's defects. Lopez, 203 F.3d at 1130. A court may dismiss a complaint or claim without leave to amend, however, when “it is clear that the complaint could not be saved by any amendment.” Sylvia Landfield Trust v. City of L.A., 729 F.3d 1189, 1196 (9th Cir. 2013).

         II. BACKGROUND

         A. Procedural History

         Pitts commenced this suit on March 28, 2017, asserting two distinct causes of action: (1) alleged excessive use of force and denial of medical care at the Hawaii State Hospital (“HSH”) in June 2015; and (2) alleged ongoing interference with personal and legal correspondence and retaliation at HCF since 2014. See Compl., ECF No. 1.

         On May 2, 2017, the court dismissed the Complaint in part because these claims were improperly joined. See Order, ECF No. 9, PageID #60-61 (severing claims pursuant to Fed.R.Civ.P. 21). Pitts was notified that his claims against certain HSH Defendants could proceed in this action, but that his claims against DPS and HCF Defendants must be brought in a separate action. Id., PageID #72-73. Instead of following this course of action, on May 23, 2017, Pitts voluntarily dismissed his claims against HSH Defendants and elected to proceed with his claims against DPS and HCF Defendants. ECF No. 12.

         B. Allegations in the FAC

         On July 19, 2017, Pitts filed the FAC. ECF No. 16. He alleges that Defendants violated the First, Sixth, Eighth, and Fourteenth Amendments, Hawaii state law, [2] and DPS regulations by promulgating, enforcing, and following DPS inmate Correspondence Policy and Procedures COR.15.02 (“P&P COR.15.02”).[3]Id., PageID #97-104.

         In Count 1, Pitts claims that Defendants Yoshinaga, Palleka, Bruhn, Tuitama, and Doe Defendants opened his privileged incoming and outgoing legal mail outside of his presence, and/or delayed, read, distributed, or otherwise interfered with his personal correspondence pursuant to P&P COR.15.02. He claims that their allegedly improper handling of his mail was done in retaliation for his pursuing grievances and civil litigation and because he is a jailhouse attorney. Pitts further alleges that P&P COR.15.02, as recently amended, improperly limits the amount of writing supplies and postage that indigent inmates may receive and improperly limits “Privileged” mail to correspondence between an inmate and his attorney or prospective attorney.

         In Count 2, Pitts alleges that DPS Director Espinda and CO Taylor retaliated against him for naming them as defendants in Pitts v. Espinda, , No. 1:15-cv-00483 JMS-KJM (D. Haw., filed Nov. 16, 2015). Pitts alleges Espinda denied his requests for a transfer (for his protection) to another facility, despite Espinda's personal knowledge that Pitts is subject to constant harassment, interference with his mail, and denial of edible food at HCF. Pitts claims that Espinda keeps him at HCF, at least in part, so that this retaliation can continue. Pitts claims that Taylor has personally harassed him since Pitts filed 1:15-cv-00483, by threatening and swearing at him and serving him inedible meals on at least two occasions.

         In Count 3, Pitts alleges Defendant Takenaka fabricated false charges against him in retaliation for Pitts's filing a claim against Takenaka and HCF medical staff with the Department of Commerce and Consumer Affairs (“DCCA”) Medical Inquiry and Conciliation Panel (“MICP”).[4]

         Finally, in Count 4, Pitts alleges that someone smeared feces and blood on his mattress during a cell shakedown on December 20, 2016. Pitts admits that he does not know who did this but speculates that it was Defendants named in No. 1:15-cv-00483 JMS-KJM. He concludes that Espinda is “endorsing or encouraging” this retaliation to deter Pitts from continuing with his lawsuits.

         Pitts seeks injunctive and declaratory relief, and compensatory and punitive damages.

         III. DISCUSSION

         “To sustain an action under section 1983, a plaintiff must show (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.” Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other grounds, 556 U.S. 1256 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988); 42 U.S.C. § 1983.

         Additionally, a plaintiff must allege that he suffered a specific injury as a result of the conduct of a particular defendant and an affirmative link between the injury and that defendant's conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). “A person ‘subjects' another to the deprivation of a constitutional right, within the meaning of § 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. Constitutional Right to Send and Receive Mail

         Prisoners retain a First Amendment right to send and receive mail in a manner consistent with legitimate penological objectives. Shaw v. Murphy, 532 U.S. 223, 231 (2001); Nordstrom v. Ryan, 856 F.3d 1265, 1271-72 (9th Cir. 2017) (“Nordstrom II”); Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). But an inmate's right to send and receive mail “is subject to ‘substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.'” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005) (citation omitted); Nordstrom II, 856 F.3d at 1272 (citing Wolff v. McDonnell, 418 U.S. 539, 577 (1974) (holding that prison officials may open, but not read, incoming legal mail in the presence of the inmate)).

         Prison officials may therefore institute procedures for inspecting “legal mail, ” e.g., mail sent between attorneys and prisoners, see Wolff, 418 U.S. at 576-77, but “prisoners have a protected First Amendment interest in having properly marked legal mail [including civil legal mail] opened only in their presence.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1211 (9th Cir. 2017). See also O'Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996) (finding inspection of “legal mail” outside the prisoner's presence may have an impermissible “chilling” effect on the constitutional right to petition the government). And under the Sixth Amendment's right to counsel, inmates have a right to be present when any legal mail related to a criminal matter is inspected. Mangiaracina v. Penzone, 849 F.3d 1191, 1195 (9th Cir. 2017) (“[E]ven a single instance of improper reading of [inmate's] mail can give rise to a constitutional violation.”). See also Nordstrom II, 856 F.3d at 1272 (explaining that prison officials may inspect, but not read, an inmate's outgoing legal mail in his presence, and finding policy at issue was overbroad).

         B. DPS Correspondence Policies: P&P COR.15.02

         The DPS defines “Privileged Correspondence” as “incoming and outgoing mail between an inmate and his/her attorney.” P&P COR.15.02.3.0.8 (eff. July 29, 2016); see https://dps.hawaii.gov/wp-content/uploads/2016/08/COR.15.02. (last visited Aug. 15, 2017). Privileged correspondence may not be censored and is subject to inspection for contraband only in the inmate's presence. P&P COR.15.02.6.0. To qualify for privileged handling, the mail envelope must be marked “privileged” or “confidential” and show the attorney's name and law firm. Id. Before July 29, 2016, mail from an attorney also required the attorney's bar number.[5]

         “Official Correspondence” is defined as mail between an inmate and the state or federal courts; Ombudsman's Office; Hawaii Attorney General; Hawaii Paroling Authority (“HPA”); elected state and federal officials; and the DPS Director and Corrections Administrator. P&P COR.15.02.3.0.6. Official mail may be inspected, censored, or read for institutional security concerns outside of the inmate's presence.[6] P&P COR.15.02.7.3.

         Personal correspondence, that is, all non-privileged mail, may be censored, read, and/or inspected outside of an inmate's presence for contraband and other security concerns. P&P COR.15.02.5.0.

         All incoming correspondence will normally be processed within twenty-four hours, excepting weekends and holidays, subject to security restrictions for investigation or if it poses a threat. Outgoing privileged correspondence will ordinarily be logged and posted the same day as it is received, unless it is received after the last mail pickup, on weekends and holidays, or must be held for inspection. P&P COR.15.02.12.0.

         C. Count 1:Mail to and From Attorneys

         Pitts claims that mail room staff Yoshinaga and Doe Defendants opened and inspected a letter marked “Confidential Legal Mail” from John Shum, Esq., outside of his presence.[7] FAC, ECF No. 16, PageID #97. He alleges additional mail to or from Shum, Lance T. Weber, Esq., and Barry Sooalo, Esq., was also opened outside of his presence, although he suggests this mail was not ...


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