United States District Court, D. Hawaii
ORDER DISMISSING FIRST AMENDED COMPLAINT IN
Michael Seabright Chief United States District Judge
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.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.
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)).
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.
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
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).
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.
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.
Allegations in the FAC
19, 2017, Pitts filed the FAC. ECF No. 16. He alleges that
Defendants violated the First, Sixth, Eighth, and Fourteenth
Amendments, Hawaii state law,  and DPS regulations by
promulgating, enforcing, and following DPS inmate
Correspondence Policy and Procedures COR.15.02
(“P&P COR.15.02”).Id., PageID #97-104.
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
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.
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
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.
seeks injunctive and declaratory relief, and compensatory and
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.
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).
Constitutional Right to Send and Receive Mail
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)).
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
DPS Correspondence Policies: P&P
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
(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.
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. P&P COR.15.02.7.3.
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
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
Count 1:Mail to and From Attorneys
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. 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 ...