United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
Darrell Pili (Pili or Defendant) moves for summary judgment
on Plaintiff Vernard Dionne Anderson's (Anderson or
Plaintiff) sole remaining claim of excessive force in
violation of the Eighth Amendment. Defendant moves on the
ground that Plaintiff has failed to exhaust his
administrative remedies related to the above-mentioned claim.
However, because the evidence reflects that no further
administrative remedies were available to Plaintiff,
Defendant's motion for summary judgment is denied.
Court gleans the relevant factual background with respect to
the issue presented-exhaustion or the lack thereof-from the
parties' concise statements of fact and evidence filed in
Inmate Grievance Program exists for inmates incarcerated at
correctional facilities operated by the Department of Public
Safety of the State of Hawai‘i (“the DPS”).
DPS Corr. Admin. Policy & Procedures, Policy No. COR.
12.03 § 4.0.1 (eff. July 1, 2015), Dkt. No. 40-2. The
purpose of the Inmate Grievance Program, or “IGP,
” is to allow an inmate a process to address complaints
relating to any aspect of the inmate's conditions of
confinement. Id. § 1.0. Monetary compensation,
however, is not an appropriate resolution for an inmate
grievance. Id. § 11.0.
the IGP, the first level of review of an inmate grievance is
to a “Section Supervisor, the next level for appeal is
the Warden/Branch/Core Program Administrator and the final
review level is the Division Administrator (DA).”
Id. § 8.0.3(d). In other words, the IGP
ordinarily consists of a three-step process. In submitting a
grievance, an inmate must, inter alia, obtain
“Form PSD 8215” and legibly complete the same,
which includes clearly stating the complaint. Id.
grievance file for Anderson contains the following documents
related to events involving Pili. First, a “Notice of
Report of Misconduct and Hearing, ” dated March 21,
2018 (“Misconduct Report”). Dkt. No. 40-3 at 1.
Second, a “Form PSD 8215, ” with Control No.
413085, dated April 2, 2018 (“Grievance 413085”).
Id. at 2. Third, a hand-written note that appears to
be signed by Anderson dated April 2, 2018. Id. at 3.
Fourth, a “Form PSD 8215, ” with Control No.
413512, dated May 13, 2018, containing a resolution dated May
17, 2018 (“Grievance 413512”). Id. at 4.
Fifth (and last), a “Confidential - Return Notice,
” referencing Grievance 413512, dated May 17, 2018
(“Return Notice”). Id. at 5. On the
Return Notice, boxes are marked indicating that the
“subject” of Grievance 413512 is not allowed by
policy and “[m]onetary compensation is not an option
for resolution.” Id. Both of the foregoing
marked boxes can be found under a heading reading that:
“The following rejections for non-compliance to policy
may not be appealed.” Id.
5, 2018, Anderson filed a Complaint against Pili, the Oahu
Community Correctional Center (OCCC), and OCCC's
“Warden-Chief of Security, ” alleging violations
of his civil rights while incarcerated. Dkt. No. 1. After
Anderson was granted leave to proceed in forma
pauperis, Dkt. No. 3, this Court dismissed the Complaint
in part with leave to amend, Dkt. No. 4. Specifically, the
Court dismissed with prejudice all claims against OCCC and
the defendants in their official capacities. The Court
dismissed without prejudice and with leave to amend any due
process claim against the Warden-Chief of Security. The Court
allowed to proceed a claim against Pili for excessive force
in violation of the Eighth Amendment. Id.
Thereafter, Anderson filed a document stating that he wished
to proceed only with his claim against Pili. Dkt. No. 6.
January 30, 2019, Pili moved for summary judgment on
Anderson's excessive force claim. Dkt. No. 39. At the
same time, Pili filed a concise statement of facts. Dkt. No.
40. In his opening memorandum, Pili argues that he is
entitled to summary judgment on the ground that Anderson
failed to exhaust his administrative remedies with respect to
the excessive force claim. See generally Dkt. No.
39-1. More specifically, Pili argues that Anderson's
grievance file does not contain a third-step grievance
regarding the excessive force claim, and thus, Anderson
failed to exhaust DPS' three-step IGP. Id. at
28, 2019, Anderson filed a “Declaration in Opposition
to Defendant's Motion for Summary Judgment, ” Dkt.
No. 51, which the Court construes as Anderson's response
in opposition to the motion for summary judgment and
Defendant's concise statement of facts. On June 17, 2019,
Pili filed a reply in support of the motion for summary
judgment. Dkt. No. 52.
to Federal Rule of Civil Procedure 56(a), a party is entitled
to summary judgment “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.” When the
moving party bears the burden of proof, he “must come
forward with evidence which would entitle [him] to a directed
verdict if the evidence went uncontroverted….”
Houghton v. South, 965 F.2d 1532, 1536 (9th Cir.
1992). This means, therefore, that the moving party
“bears the initial burden of establishing the absence
of a genuine issue of fact on each issue material to his
affirmative defense.” Id. at 1537. ...