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Luong v. Segueira

United States District Court, D. Hawaii

March 29, 2018

THINH LUONG, Plaintiff,
FRANCIS SEGUEIRA, in his Official Capacity only as Warden of Oahu Community Correctional Center, ACO PAT SOOALO, AND JOHN DOES 1-5, Defendants. JOHN RANDALL SILVA, Plaintiff,


          Leslie E. Kobayashi, United States District Judge

         On January 3, 2018, Defendants the State of Hawai`i (“the State”), Patrick Sooalo (“Sooalo”), and Francis Segueira, in his official capacity as Warden of Oahu Community Correctional Center (“Segueira, ” collectively “Defendants”), filed their Motion for Summary Judgment (“Motion”), seeking summary judgment as to Plaintiff John Randall Silva's (“Silva”) claims.[1] [Dkt. no. 18.] Silva and Plaintiff Thinh Luong (“Luong, ” collectively “Plaintiffs”) filed their memorandum in opposition on February 22, 2017, and Defendants filed their reply on March 1, 2018. [Dkt. nos. 24, 26.] This matter came on for hearing on March 19, 2018. Defendants' Motion is hereby granted in part and denied in part for the reasons set forth below. The Motion is granted as to Silva's 42 U.S.C. § 1983 claim, based on the failure to exhaust administrative remedies. The grant of summary judgment is without prejudice to the litigation of the merits of Silva's § 1983 claim, if properly presented in state court. The Motion is denied as to Silva's state law claims, which this Court declines to exercise supplemental jurisdiction over and remands to state court.


         Silva filed his Complaint on September 19, 2017 in state court, and Sooalo and the State (collectively “the Silva Defendants”) removed the case on November 16, 2017, based federal question jurisdiction. [Notice of Removal, filed 11/16/17 (dkt. no. 1), at ¶ 2, Exh. A (Silva's Complaint).] Luong's case and Silva's case both arise from a December 21, 2015 incident at the Oahu Community Correctional Center (“OCCC”) - where they were incarcerated at the time - in which they were allegedly assaulted by Sooalo, an OCCC Adult Correctional Officer (“ACO”).[2][Complaint at ¶¶ 4-9; CV 16-613, First Amended Complaint, filed 7/17/17 (dkt. no. 20), at ¶¶ 5-11.]

         Silva alleges the following claims: a negligence claim against Sooalo (“Count I”); a 42 U.S.C. § 1983 claim for violation of his Eighth Amendment right to be free from cruel and unusual punishment and his Fourteenth Amendment due process rights (“Count II”); a common law battery claim (“Count III”); a claim alleging gross negligence or other willful, wanton, malicious, or improper conduct warranting punitive damages (“Count IV”); a claim that the State is liable for its employees' - including Sooalo's - negligence (“Count V”); and a claim alleging negligent supervision and control and/or ratification and concealment of the ACOs' use of excessive force (“Count VI”). [Complaint at pgs. 1-5.]

         The sole issue presented in the Motion is whether the Silva Defendants are entitled to summary judgment as to Silva's claims because he did not exhaust his administrative remedies, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).[3]

         The Department of Public Safety (“DPS”) Corrections Administration Policy and Procedures Policy No. COR.12.03 (“the Grievance Policy”) sets forth the administrative remedies a State inmate must pursue before filing a § 1983 action. [Defs.' Concise Statement of Material Facts in Supp. of Motion for Summary Judgment Against Pltf. John Randall Silva (“Defs.' CSOF”), filed 1/3/18 (dkt. no. 19), Decl. of Shelley D. Harrington (“Harrington Decl.”) at ¶ 3, Exh. 1 (Grievance Policy).[4] The Grievance Policy provides for a three-step grievance process. At each step, the inmate's grievance is reviewed, and a response is provided to the inmate. The inmate may file a § 1983 action after he has completed all of the steps. [Harrington Decl. at ¶ 4.]

         The inmate must submit his initial grievance within fourteen days after the occurrence of the incident that is the subject of the grievance, but an extension may be allowed if the inmate establishes, in writing, a “valid reason” for the delay in submitting the grievance. [Grievance Policy at 4, §§ 8.1, 8.2.] The grievance must be submitted on a Form PSD 8215, which the inmate must obtain from the facility's staff. [Id. at 5, § 8.3.] The Grievance Policy provides:

An inmate who is not satisfied with the response received may submit an Appeal to the next step within five (5) calendar days from the date of receipt. The inmate shall submit a written statement regarding the basis of the appeal by addressing the response rendered.
The first level of review for the Inmate Grievance is the Section Supervisor, the next level for appeal is the Warden/Branch/Core Program Administrator and the final review level is the Division Administrator (DA). The decision of the DA shall be final and the ultimate recourse in the Administrative Remedy Process.

[Id. at 6, § 8.3.d.]

         According to Ms. Harrington, Shari Kimoto is the DPS DA who is responsible for the third step in the grievance process. Ms. Harrington states, before Ms. Kimoto went on vacation, Ms. Kimoto “conducted a thorough search of the inmate grievances submitted by John Randall Silva and found that there were no Step Three Grievances in Silva's file.” [Harrington Decl. at ¶ 5.] In her position with DPS, Ms. Harrington has access to all inmate grievances, and she has the ability to search them. She conducted her own search and agrees with Ms. Kimoto's conclusion that there is no Step Three Grievance in Silva's file. [Id. at ¶¶ 6-7.] Defendants therefore contend the Silva Defendants are entitled to summary judgment because Silva failed to exhaust his administrative remedies.

         Plaintiffs argue exhaustion was not required because the PLRA does not apply to cases filed in state courts. Further, even if exhaustion was required, Silva's failure to exhaust does not preclude the litigation of his claims because administrative remedies were not available to him. Plaintiffs present Silva's testimony that, immediately after the December 21, 2015 incident, he was hospitalized at Queen's Medical Center (“Queen's”) for six days. Upon his return to OCCC, he was immediately placed in segregation - i.e., the “hole” - for fifty four days. [Pltfs.' Concise Statement of Material Facts Re: All Pltfs.' Mem. in Opp. to Defs.' Motion (“Pltfs.' CSOF”), filed 2/22/18 (dkt. no. 25), Exh. 7 (Decl. of John R. Silva (“Silva Decl.”)) at ¶ 3 (first of two paragraphs numbered “3”).] He did not have an inmate handbook or grievance instructions at either place. Further, there were no grievance forms at Queen's, and Silva's requests for grievance forms were ignored at least twice while he was in segregation. He was told there were no forms. [Id.] Silva also states “from the time I was beaten I was fearful that it [sic] I submitted a grievance about Sooalo I would be beaten again by Sooalo, other guards, or inmates friendly with Sooalo.” [Id.]

         Silva states he knows, from prior experience, the grievance process is not effective for addressing incidents involving beatings by guards because: money damages are not an available remedy;[5] and the ACOs and others lie when such grievances are submitted to protect the ACO named in the grievance. According to Silva, another ACO, who he calls “Marcus, ” is telling lies to protect Sooalo from claims about the December 21, 2015 incident. [Id. at ¶ 3 (second of two paragraphs numbered “3”).] Silva also asserts grievance hearings are unfair because they are adjudicated by biased prison officials. Silva therefore asserts “[t]here is no realistic opportunity to obtain any relief.” [Id.]

         Plaintiffs' counsel states, from his experience working on cases involving inmate grievances, a grievance seeking monetary relief is rejected, and the rejection is not appealable. [Pltfs.' CSOF, Exh. 8 (Decl. of John Rapp (“Rapp Decl.”)) at ¶¶ 4-5; Pltfs.' CSOF, Exh. 6 (grievance submitted by inmate John Rawlins dated 1/15/16 and 2/5/16 (“Rawlins Form”)).] The Rawlins Form states: “In accordance with P&P COR.12.03. Inmate Grievance Program, your grievance/appeal is being returned for one or more of the following reasons: . . . . The following rejections for non-compliance to policy may not be appealed.” [Id.] The following two items are checked: “COR. - You failed to file your grievance within fourteen (14) calendar days from the date on which the basis of the complaint/grievance occurred”; and “COR. - Tort claims - Monetary compensation is not an option for resolution.” [Id.] At the hearing on the Motion, Plaintiffs' counsel conceded they do not have a grievance rejection notice for Silva like the Rawlins Form.


         Under the PLRA, “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is not “left to the discretion of the district court”; it “is mandatory.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.'” Ross v. Blake, 136 S.Ct. 1850, 1862 (2016). “Available” remedies are “grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738, 121 S.Ct. 1819 (2001)). An administrative remedy is not “available” under the following circumstances: “when (despite what regulations or guidance materials may promise) it operates as a simple dead end - with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; id.; when “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use”; id.; “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation, ” id. at 1860. However, “[c]ourts may not engraft an unwritten ‘special circumstances' exception onto the PLRA's exhaustion requirement.” Id. at 1862.

         This Court has stated:

Lack of exhaustion should be raised in a summary judgment motion, unless the failure to exhaust is clear from the face of the complaint. Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (en banc).
Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed.R.Civ.P. 56(c)). A court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
In the context of prisoner administrative exhaustion, the defendant bears the burden of proving a failure to exhaust. See, e.g., Brown v. Valoff, 422 F.3d 926, 936 (9th Cir. 2005). The defendant must show that an available administrative remedy existed and the prisoner failed to exhaust that remedy. See, e.g., Panah v. Cal. Dep't of Corr. & Rehab., 2015 WL 1263494, at *4 (N.D. Cal. Mar. 19, 2015); Meredith v. Ada Cty. Sheriff's Dep't, 2014 WL 4793931, at *5 (D. Idaho Sept. 25, 2014). The burden then shifts to the plaintiff to bring forth evidence “showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Albino, 747 F.3d at 1173.

Seina v. Fed. Detention Ctr. - Honolulu, CIV. NO. 16-00051 LEK-KJM, 2016 WL 6775633, at *2-3 (D. Hawai`i ...

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