United States District Court, D. Hawaii
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT, ECF NO. 31
Michael Seabright, Chief United States District Judge
October 20, 2017, then-Hawaii state inmate and pro se
Plaintiff Terence Olsen Isom (“Plaintiff”) filed
a First Amended Complaint (“FAC”) against
Defendants Kauai Community Correctional Center
(“KCCC”), Warden Neal Wagatsuma
(“Wagatsuma”), and Adult Correctional Officer
(“ACO”) Paul Lemke (“Lemke”)
(collectively, “Defendants”) in their individual
capacities, alleging a claim pursuant to 42 U.S.C. §
1983 for violation of his First Amendment right to
“send and receive mail.” ECF No. 29. Before the
court is Defendants' unopposed Motion for Summary
Judgment. ECF No. 31. For the reasons set forth below, the
Motion is GRANTED.
his admission as a pretrial detainee to KCCC, Plaintiff was
given the Inmate Orientation Packet and correspondence list
that are provided to all inmates housed at KCCC. Defs.'
Concise Statement of Facts (“CSF”) ¶¶
1, 3, 5-6. The Inmate Orientation Packet provides
inmates with information about KCCC's correspondence
policies and procedures and information about services
available to assist pretrial detainees with business and
financial matters. Id. ¶ 2. Inmates are
required to submit for approval a list identifying the name,
relationship, and address of each person with whom the inmate
wishes to correspond while at KCCC. Id. ¶ 3.
The KCCC correspondence list includes a policies section
specifying that “[f]ormer inmates, parolees,
probationers and other persons having pending charges against
them will not be approved for correspondence unless written
permission is acquired from the Branch Administrator.”
Id. ¶ 4; Defs.' Ex. D.
alleged in the FAC, Plaintiff submitted the name of his
girlfriend, Kimberly Oakes, to be included on his approved
correspondence list. FAC at 2. On June 20, 2016, Wagatsuma
approved Plaintiff's request to correspond with Kimberly,
who had just been released from KCCC custody on June 17,
2016. Defs.' CSF ¶ 7. Thereafter, a KCCC record
clerk informed Wagatsuma and Lemke that Plaintiff and
Kimberly were codefendants in a pending criminal action and
therefore, Plaintiff was not permitted to correspond with
Kimberly without written approval from Wagatsuma.
Id. ¶ 8.
then retrieved a letter Plaintiff wrote to Kimberly and
submitted for mailing. Id. ¶ 9. Lemke returned
the letter to Plaintiff indicating that permission to
correspond with Kimberly was denied because she was a
codefendant and former inmate and therefore, in order to
correspond with her, Plaintiff needed written permission from
the Branch Administrator. Id. Plaintiff did not
submit a new request to correspond with Kimberly.
Id. ¶ 10.
then submitted a request to correspond with Kristen Oakes.
Id. ¶ 11. In mid-July 2016, Lemke reviewed
incoming mail from Kristen, and mistakenly thinking the
letter was from Kimberly, marked it “Return to Sender,
” informed Plaintiff, and placed the letter in the
outgoing mail. Id. ¶ 12. Plaintiff explained
that Kristen was not a codefendant, and on July 15, 2016,
Lemke opened the envelope for screening. Id.
¶¶ 13-14. Lemke determined that the envelope
contained a letter written by and pictures of Kimberly.
Id. ¶ 14. Lemke took the letter to Plaintiff,
who admitted that it appeared to have been dictated to
Kristen by Kimberly. Id. ¶ 15. Lemke told
Plaintiff that he could not correspond with Kimberly through
Kristen or another party, took back the letter, and again
placed it in the outgoing mail. Id.
October 13, 2016, Wagatsuma received a letter from the Kauai
Drug Court informing him that the court had directed Kimberly
to have no contact with Plaintiff while in the Drug Court
program. Id. ¶ 17. Wagatsuma showed that letter
to Plaintiff and explained that he would not allow Plaintiff
to correspond with Kimberly until permitted by the Kauai Drug
Court. Id. ¶ 18. Plaintiff exhausted the
grievance process with respect to his inability to correspond
with both Kimberly and Kristen. FAC at 2-3.
filed his initial Complaint on September 26, 2016. ECF No. 1.
On April 3 and June 1, 2017, Plaintiff filed Notices of
Change of Address, indicating that he is no longer
incarcerated at KCCC. ECF Nos. 13, 20. On July 18, 2017,
Defendants filed a Motion for Judgment on the Pleadings. ECF
No. 22. On September 18, 2017, the court granted the Motion
and dismissed the Complaint with leave to amend. ECF No. 28.
On October 20, 2017, Plaintiff filed the FAC. ECF No. 29.
alleged in the FAC, because Defendants denied Plaintiff
permission to correspond with Kimberly or Kristen, Plaintiff
was unable to give Kimberly “power of attorney so that
she could handle [Plaintiff's] financial matters.”
FAC at 3. Plaintiff's inability to convey power of
attorney to Kimberly resulted in “several thousand
dollars of debt and damage to [Plaintiff's]
credit.” Id. In addition, Kimberly was unable
to get a key made to recover Plaintiff's vehicle from a
public parking area, resulting in the vehicle being
vandalized and all of Plaintiff's personal belongings
being stolen or destroyed. Id. This, and his lack of
contact with Kimberly, caused Plaintiff to suffer mentally
and emotionally. Id.
January 31, 2018, Defendants filed the instant Motion for
Summary Judgment. ECF No. 31. The court issued a minute order
setting this matter for hearing on March 29, 2018, and
setting deadlines of March 1, 2018 for Plaintiff's
Opposition, and March 8, 2018 for Defendants' Reply. ECF
No. 33. The minute order and a Notice to Pro Se Litigants
(informing Plaintiff of his obligation in responding ...