United States District Court, D. Hawaii
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE
the court are Defendants’ Terri Yoshinaga, Dallen
Paleka, Piliopo Tuitama, and Arnubi Bruhn’s Motions for
Summary Judgment, ECF Nos. 116, 117; and Defendants Nolan
Espinda, Jodie Maesaka-Hirata, and Gavin Takenaka’s
Motion for Substantive Joinder in Yoshinaga’s Motion
for Summary Judgment, ECF No. 126 (collectively,
“Defendants” and “Defendants’
Motions”). Defendants assert that pro se Plaintiff
Joseph Pitts failed to exhaust available prison
administrative remedies regarding his claims before filing
this suit, as required by the Prison Litigation Reform Act of
1995 (“PLRA”), 42 U.S.C. § 1997e(a).
April 22, 2019, the court held a hearing on Defendants’
Motions. Deputies Attorney General Tara K. Molnar, Gregg M.
Ushiroda, and Jennifer C. Carson appeared on behalf of
Defendants. Pitts participated by telephone.
careful consideration of the parties’ arguments and the
entire record, the court finds that Pitts exhausted available
administrative remedies regarding his claims that: (1)
Yoshinaga mishandled his legal mail from attorneys; (2)
Yoshinaga, Paleka, Tuitama, and Bruhn mishandled his incoming
and outgoing personal mail; and (3) Takenaka and Yoshinaga
retaliated against him. Defendants’ Motions for Summary
Judgment are DENIED regarding these claims.
court finds that Pitts failed to timely or fully exhaust his
claims regarding (1) Espinda’s and
Maesaka-Hirata’s approval of an allegedly
discriminatory policy limiting indigent inmates’ access
to writing supplies, COR.15.02.14.2; (2) Espinda’s,
Paleka’s, Bruhn’s, and Tuitama’s alleged
retaliation against him; and (3) the rejection of a sealed
letter to the Office of the Ombudsman. Defendants’
Motions for Summary Judgment are GRANTED as to these claims,
and the claims are DISMISSED without prejudice.
brought this suit on March 21, 2017, alleging claims against
Hawaii State Hospital (“HSH”) staff for events
that allegedly occurred in June 2015, and against HCF and
Department of Public Safety (“DPS”) officials
regarding events that allegedly occurred between 2014 and
2017 at HCF. See Compl., ECF No. 1, PageID #9-17.
Pitts named all Defendants in their official and individual
capacities. Id., PageID #4. On May 2, 2017, the
court severed Pitts’ claims against HCF and DPS
Defendants from his claims against HSH Defendants, without
prejudice to his bringing them in separate actions. ECF No.
17, 2017, Pitts dismissed his claims against HSH Defendants
and filed the first amended complaint (“FAC”)
asserting claims against HCF and DPS Defendants only. ECF No.
16. The FAC realleged the claims against HCF and DPS
Defendants that were in the original Complaint, added details
regarding Pitts’ original retaliation claims, and
asserted a new retaliation claim against Defendant Ross
Taylor that allegedly occurred after the original Complaint
September 5, 2017, the court dismissed the FAC in part, with
leave to amend to cure the deficiencies in the dismissed
claims. ECF No. 18. Pitts was also given the
option of serving the FAC’s colorable claims
immediately, as limited by the Order.
December 19, 2017, Pitts filed the operative, second amended
complaint (“SAC”). ECF No. 30. The SAC is nearly
identical to the FAC, with the addition of a new retaliation
claim against Yoshinaga for actions allegedly taken days
before Pitts filed the SAC. See id., PageID #171-73.
January 8, 2018, the court screened the SAC, again dismissed
Count 4 and all claims against Defendants Abercrombie, Ige,
Kimoto, Hoffman, Sequeira, and Tom, directed service of
Counts 1-3, and 5, as limited, and directed the remaining
Defendants to respond. ECF No. 31.
5 and 12, 2018, Defendants filed their Motions. ECF Nos. 116,
117, 126. Defendants have also filed supplemental briefing as
directed by the court. See ECF Nos. 169-171. The
court docketed Pitts’ Memorandum in Opposition to
Defendants’ Motions on April 4, 2019 and Defendants
filed their Replies on April 8, 2019. ECF Nos. 212, 213-216.
Against Defendants in the SAC
Count 1, Pitts alleges: (a) HCF Mail Supervisor Yoshinaga and
mail room staff inspected mail from Pitts’ attorneys
outside of his presence between June 25, 2014, and November
30, 2015; (b) Yoshinaga, Gang Intelligence Unit
(“GIU”) officers Captain Paleka, Tuitama, and
Bruhn delayed Pitts’ incoming and outgoing personal
mail, without giving him notice, to harass and retaliate
against him; (c) DPS Director Espinda and Deputy Director
Maesaka-Hirata implemented allegedly discriminatory DPS
policies, COR.15.02. (pertaining to indigent writing
supplies), and COR.15.02. (pertaining to inspecting and
handling inmate mail). SAC, ECF No. 30, PageID #159-67.
Count 2, Pitts alleges that Espinda denied Pitts’
requests to transfer in retaliation for Pitts filing lawsuits
against DPS. Id., PageID #168.
Count 3, Pitts alleges DPS Mental Health Care Supervisor
Takenaka filed a false misconduct report in retaliation for
Pitts having filed a state court tort action against
Takenaka. Id., PageID #169. Pitts was disciplined on
the basis of Takenaka’s report.
Count 5, Pitts alleges Yoshinaga retaliated against him by
interfering with his personal mail in early December 2017,
days before he filed the SAC. Id., PageID #171-73.
STANDARDS OF REVIEW
42 U.S.C. § 1997e(a): Exhaustion of Administrative
PLRA provides that no “action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983],
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).
are required to exhaust their available administrative
remedies before filing suit. Jones v. Bock, 549 U.S.
199, 211 (2007); McKi nney v. Carey, 311 F.3d 1198,
1199-1201 (9th Cir. 2002) (per curiam). Exhaustion applies to
all prisoner suits relating to prison life. Porter v.
Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required
regardless of the relief sought by the prisoner or the relief
offered by the process, unless “the relevant
administrative procedure lacks authority to provide
any relief or to take any action whatsoever
in response to a complaint.” Booth v. Churner,
532 U.S. 731, 736, 741 (2001) (emphases added); Ross v.
Blake, 136 S. Ct. 1850, 1857, 1859 (2016).
the PLRA, a grievance ‘suffices if it alerts the prison
to the nature of the wrong for which redress is
sought.’” Reyes v. Smith, 810 F.3d 654,
659 (9th Cir. 2016) (quoting Sapp v. Ki mbrell, 623
F.3d 813, 824 (9th Cir. 2010) (further quotations omitted)).
“need not include legal terminology or legal
theories,” because [t]he primary purpose of a grievance
is to alert the prison to a problem and facilitate its
resolution, not to lay groundwork for litigation. The
grievance process is only required to “alert prison
officials to a problem, not to provide personal notice to a
particular official that he may be sued.”
Id. (alteration in original) (internal citations
omitted). Thus, a grievance need not always specifically name
a particular defendant to have exhausted a claim against that
are no “special circumstances” that excuse
exhaustion, beyond the requirement that “remedies must
indeed be ‘available’ to the prisoner.”
Ross, 136 S. Ct. at 1862, 1856. There are only three
limited “circumstances in which an administrative
remedy, although officially on the books, is not capable of
use to obtain relief.” Id. at 1859. Exhaustion
may be excused only when:
(1) the “administrative procedure . . . operates as a
simple dead end -with officers unable or consistently
unwilling to provide any relief to aggrieved inmates;”
(2) the “administrative scheme . . . [is] so opaque
that . . . no ordinary prisoner can make sense of what it
(3) “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.”
See id. at 1859-60 (internal citations omitted).
Section 1997e(a) otherwise “foreclos[es] judicial
discretion,” and “a court may not excuse a
failure to exhaust, even to take [special] circumstances into
account.” Id. at 1856-57.
prison officials improperly fail to process a
prisoner’s grievance, the prisoner is deemed to have
exhausted available administrative remedies.”
Andres v. Marshall, 867 F.3d 1076, 1079 (9th Cir.
2017). And, a prisoner need not proceed through all levels of
the administrative remedy program if he is satisfied with the
relief he obtains at an earlier stage. See Harvey v.
Jordan, 605 F.3d 681, 685 (9th Cir. 2010); see also
Reece v. Sisto, 536 F. App’x 705, 706 (9th Cir.
2013) (concluding that a fully-granted appeal at the first
level was sufficient to exhaust remedies, even when the
relief provided was not the exact relief plaintiff
proper remedy for an inmate’s failure to exhaust is
dismissal without prejudice of those portions of the
complaint that are barred by § 1997e(a), not dismissal
of the whole suit. Jones, 549 U.S. at 223-24;
Lira v. Herrera, 427 F.3d 1164, 1175-76 (9th Cir.
Rule 56, “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” the court must grant
summary judgment. Fed. R. Civ. P. 56(a). The moving party has
the initial burden to demonstrate the absence of a genuine
issue of material fact and that summary judgment is proper as
a matter of law. Celotex v. Catrett, 477 U.S. 317,
323 (1986). An issue is “genuine” only if there
is a sufficient evidentiary basis on which a reasonable jury
could find for the nonmoving party. See Anderson v. Li
berty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual
dispute is “material” only if it might affect the
outcome of the suit under governing law. Id. All
inferences from the underlying facts must be viewed in the
light most favorable to the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radi o Corp., 475
U.S. 574, 587 (1986).
to exhaust is an affirmative defense. Jones, 549
U.S. at 216. The defendant must first prove that there was an
available administrative remedy that was unexhausted by the
inmate. Willi ams v. Paramo, 775 F.3d 1182, 1191
(9th Cir. 2015) (citing Albino v. Baca, 747 F.3d
1162, 1172 (9th Cir. 2014)). If the defendant carries that
burden, the burden shifts to the inmate to “show that
there is something in his particular case that made the
existing and generally available administrative remedies
effectively unavailable to him by ‘showing that the
local remedies were ineffective, unobtainable, unduly
prolonged, inadequate, or obviously futile.’”
Id. (quoting Albi no, 747 F.3d at 1172).
purposes of opposing summary judgment, the contentions
offered by a pro se litigant in motions and pleadings are
admissible to the extent that they are based on personal
knowledge, set forth facts that would be admissible into
evidence, and the litigant attested under penalty of perjury
that they were true and correct. Jones v. Blanas,
393 F.3d 918, 923 (9th Cir. 2004). “[C]onclusory
allegations unsupported by factual data,” however, are
insufficient to rebut summary judgment. Taylor v. Li
st, 880 F.2d 1040, 1045 (9th Cir. 1989).