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Pitts v. Tuitama

United States District Court, D. Hawaii

May 8, 2019

JOSEPH PITTS, #A0259019, Plaintiff,
SGT. TUITAMA, et al., Defendants.



         Before 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[1] 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).

         On 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.

         After 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.

         The 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.; (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.

         I. BACKGROUND

         A. Procedural History

         Pitts brought this suit on March 21, 2017,[2] 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. 9.

         On July 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 was filed.[3]

         On September 5, 2017, the court dismissed the FAC in part, with leave to amend to cure the deficiencies in the dismissed claims.[4] ECF No. 18. Pitts was also given the option of serving the FAC’s colorable claims immediately, as limited by the Order.

         On December 19, 2017, Pitts filed the operative, second amended complaint (“SAC”).[5] 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.

         On 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.

         On July 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.

         B.Claims Against Defendants in the SAC

         In 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).[6] SAC, ECF No. 30, PageID #159-67.

         In Count 2, Pitts alleges that Espinda denied Pitts’ requests to transfer in retaliation for Pitts filing lawsuits against DPS. Id., PageID #168.

         In 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.

         In 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.


         A. 42 U.S.C. § 1997e(a): Exhaustion of Administrative Remedies

         The 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).

         Prisoners 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).

         “Under 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)). A grievance:

“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 defendant. Id.

         There 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 demands;” and
(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.

         “When 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 requested).

         The 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. 2005).

         B. Summary Judgment

         Under 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).

         Failure 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).

         For 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).

         C. DPS ...

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