Pitts v. Sequeira et al

Filing 176

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; EXHIBIT A. Signed by JUDGE LESLIE E. KOBAYASHI on 1/14/2014. Re: 112 Amended Motion for Summary Judgment. (Attachments: # 1 Ex hibit A) (1) Defendants' Motion for Summary Judgment is GRANTED as to Pitts' claims that Defendants'Rivera, Tanuvasa, and Hernandez failed to protect him from assault or retaliated against him in violation of federal or s tate law. (2) Summary judgment is DENIED as to Pitts' claims against Dr. Leland. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronica lly at the e-mail address listed on the Notice of Electronic Filing (NEF). Participant Joseph C. Pitts who is not registered to receive electronic notifications wasserved by first class mail on the date of this docket entry Modified on 1/15/2014 (ecs, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH C. PITTS, #A0259019,
Plaintiff,
vs.
FRANCIS SEQUEIRA, et al.,
Defendants.
____________________________

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CIV. NO.11-00281 LEK/RLP
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT;
EXHIBIT A

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
Plaintiff Joseph C. Pitts, a prisoner proceeding pro
se, claims that past and present Hawaii Department of Public
Safety (“DPS”) employees violated his constitutional rights and
state law when they enabled, or failed to protect him from, an
assault by another inmate while he was a pretrial detainee at the
Oahu Community Correctional Center (“OCCC”).1
Before the court is Defendants’ Linda Moga Rivera,
Tom Leland, M.D., Sam Tanuvasa, and Fred Hernandez (collectively,
“Defendants”), Amended Motion for Summary Judgment.

Defs.’ Mot.,

ECF No. 112; Mem. in Support, ECF No. 112-1; Concise Statement of
Facts (“CSF”), ECF No. 113.

Defendants assert that they were

unaware of a threat to Pitts before the assault and therefore
neither acted with deliberate indifference to his safety nor
1

Pitts is now incarcerated at the Halawa Correctional
Facility(“HCF”), but during all relevant times he was housed at
OCCC.

retaliated against him for exercising his First Amendment rights.
Defendants argue that they are entitled to qualified immunity.
Pitts has filed an Opposition to the Motion, ECF No. 162, and
Defendants have filed a Reply, ECF No. 169.

Defendants’ Motion

is GRANTED IN PART as detailed below.
I.

BACKGROUND

On Friday, September 11, 2009, Pitts was housed in
solitary confinement in the OCCC disciplinary segregation Holding
Unit, classified as a Medium custody pre-trial felon.
Ex. O, ECF No. 163-19; Pitts Decl. ECF No. 163-3.

See Pitts’

Pitts saw

guards take inmate Jose Nievis from the Holding Unit in handcuffs
at or about 8:15 p.m., and saw Nievis return approximately one
hour later with injuries Pitts describes as consistent with an
assault.

See First Amended Compl. (“FAC”), ECF No. 46, PageID

#278; Pitts Decl., ECF No. 163-2, ¶5.

Nievis allegedly told

Pitts that two inmate S.O.S. Crips gang members,2 Tauese Manuele
and Manuele’s unidentified cellmate, attacked him outside of the
Holding Unit while Adult Correctional Officers (“ACOs”) Mattson,
Texiera, Talemoa, Blas, and “Sgt. John Doe” “watched, incited,
and encouraged” the assault.

FAC, ECF No. 46, PageId #278; see

also Defs.’ CSF, Grievance No. 16139, ECF No. 113-2, PageID #628.
Pitts was put on suicide watch that day, although it is unclear
2

Pitts is apparently referring to the “Sons of Samoa”
street gang, which he alleges is based in Hawaii at the Kuhio
Park Towers (“KPT”) apartment complex in Honolulu.
2

whether this occurred before or after Nievis’ assault.

See Pitts

Decl., ECF No. 163-2 ¶ 10.
On Saturday, September 12, 2009, Pitts met with OCCC
psychiatrist Peter Yamamoto, M.D., in the Holding Unit.
Pitts’ Ex. F, ECF No. 163-11.

See

Dr. Yamamoto’s medical notes

indicate that Pitts said, “I never was suicidal, I’m in suicide
watch b/c HU [Holding Unit] ACO’s wanted to separate us[] I’m
fine, I’m not suicidal.”

Id.

Dr. Yamamoto discontinued Pitts’

suicide watch, recommended that he be returned to general
population, continued his medication, and scheduled a follow up
visit in one month.

Id. (“(1) D/C SW -> to G.P. [;] (2) cont.

with meds[;] (3) F/U 1 month 10/12/09”).
Pitts alleges that he wrote the DPS Internal Affairs
Division, the Department of Justice, the Hawaii Office of the
Ombudsman, the Federal Bureau of Investigation (“FBI”), and the
Hawaii Attorney General on or about September 12, 2009, regarding
Nievis’ assault.

See ECF No. 113-2, PageID #628.

On Sunday, September 13, 2009, Pitts completed and
signed two grievances: No. 161631, for Nievis,3 and No. 161639,
for himself.

Grievance No. 161639 states:

I am filing this grievance because I firmly
believe my life is in danger, And if I Am
held in the Holding Unit for the remainder of
my sanction time, the Officers involved in

3

Because Nievis speaks Spanish, he asked Pitts to assist

him.
3

the set up and beating of detainee Jose L.
Nievis while in handcuffs, will have me set
up or killed[.] On September 11, 2009,
between the hours of 7 pm and 9 pm I was an
eye witness to the events that ultimately led
up to inmate Jose L. Nievis being maliciously
beaten in handcuffs while four officers
watched, condoned and encouraged it. And I
fear because of this knowledge and my
assistance in helping Spanish inmate Jose L.
Nievis file his complaint (Grievance No.
161631) and call the Federal Bureau of
Investigation, Ombudsman and the Dept of
Public Safety Internal Affairs, I will be
targeted for assault and or death. The
Officers and Inmates involved in the attack
are Officers Texiera, Talemoa, Blas, Sgt. on
Duty Mattson. Inmates Bird and his roommate
located in Cell 9 on the second floor (Bird
is his nickname) and according to Jose[,]
inmate Garteluna also housed on Second Floor.
I would like to call my attorney John M.
Schum, Ombudsman[,] Internal Affairs and [be]
rehoused in Module One for my safety.
ECF No. 113-2 PageID #628.

It is initialed as received by prison

officials first on September 14, and again on September 16, 2009.
See ECF No. 113-2, PageID #628.
On Monday, September 14, 2009, at approximately 3:00
p.m., Pitts met with part-time OCCC psychiatrist Defendant
Dr. Leland.

See Leland Decl., ECF No. 113-4, PageID #631-32.

Dr. Leland’s notes indicate that Pitts told him, “I want to move
to Mod 1 - I’m not suicidal yet and don’t want to get worse - HU
[holding unit] not good for me.”

ECF No. 113-5, PageID #633.

Dr. Leland further noted that Pitts was “worried about possible
retribution from staff because he witnessed abuse of another IM
[inmate] and has reported the abuse - [by] letter to FBI and
4

Bureau of Prisons.”

Id.

Dr. Leland’s notes show that he told

Pitts, “‘since Mod 1 is crowded and you are not suicidal I will
have to discuss move to M.1 with Dr. Evans + Yamamoto.’”

Id.

This was Dr. Leland’s only encounter with Pitts.
Defendant Inmate Grievance Specialist (“IGS”) Rivera
says she received Grievance No. 161639 on Wednesday,
September 16, 2009.
#626.

See CSF, Rivera Decl., ECF No. 113-1, PageID

Rivera responded to it the next day, September 17, 2009.

See ECF No. 113-3.

She explained to Pitts that filing a

preemptive grievance because he feared retaliation for submitting
the grievance and assisting Nievis was improper because there was
nothing yet to grieve; she told Plaintiff to contact the Chief of
Security or the Warden with his fears.4

Id.

Rivera returned the

grievance to Pitts, but she forwarded a copy of it to the OCCC
Administrative Captain and Chief of Security to alert them about
Pitts’ fears.

Rivera Decl., ECF No. 113-1, PageID #627.

On the same morning that Rivera received the grievance,
September 16, 2009, five inmates were scheduled to attend the
OCCC law library: John Correia, Alabanza (Chris) Tuimaleaiifano,
Tauese Manuele, Tyson Liulama, and Pitts.
163-19, PageID #1061.

Pitts’ Ex. O, ECF No.

Pitts was classified as a Medium security

4

It is unclear how Pitts should have notified the Warden or
Chief of Security about his fears, other than through a grievance
and by alerting his treating psychiatrist, without alerting the
very guards he feared.
5

pretrial felon (PTF/DC) and Tuimaleaiifano was classified as a
Minimum security probation violator (“PRBV/DC”); both were housed
in disciplinary segregation in the Holding Unit.5
ECF No. 163-19, PageID #1061.

Pitts’ Ex. O,

None of the inmates at the law

library on September 16, 2009, were classified as maximum
security.

Id.

Tuimaleaiifano, Manuele, and Liulama each

submitted law library attendance requests on September 8, 2009,
several days before the assault on Nievis and a week before
Pitts’ attack.

Gunn Decl., ECF NO. 163-25.

Neither

Tuimaleaiifano nor Manuele had requested to be scheduled for the
law library in the three months before September 8, 2009,
however.

Id.
On September 16, 2009, ACO Tanuvasa placed leg irons,

rather than handcuffs, on Tuimaleaiifano’s wrists for his
transport to the law library.

Tanuvasa says he did so because

Tuimaleaiifano’s wrists were too large for handcuffs and prison
policy allowed this substitution in this situation.
Decl., ECF No. 113-6, ¶ 3.

Tanuvasa

Tanuvasa asserts that he was not

aware of any general threats to Pitts from ACOs or gang members,
specific animosity between Pitts and Tuimaleaiifano, or of Pitts’

5

Tuimaleaiifano had five incident reports in the four
months prior to the September 23, 2009 investigation report,
three for assault and use of physical force, and two for use of
force or threats to a correctional officer. Ex. O, ECF No. 16319. It is unclear whether the Pitts’ assault was included in
these five charges.
6

fear of reprisal from gang members or ACOs.

Id. ¶ 4-5.

ACO Hernandez was monitoring the law library on
September 16, 2009.

At approximately 9:05 a.m., Tuimaleaiifano

slipped a hand from the leg irons on his wrists and began to
assault Pitts.

FAC, ECF No. 46, PageID #279; Hernandez Decl.,

ECF No. 113-7 ¶ 3.

Hernandez called for backup, and says he

attempted to separate Pitts and Tuimaleaiifano until assistance
arrived.

Hernandez Decl., ECF No. 113-7 ¶ 3.

Pitts says that

Tuimaleaiifano struck him “about 20 more times” before backup
assistance arrived, when he “felt officers grab [Tuimaleaiifano]
off of him.”

FAC, ECF No. 46, PageID #279.

the OCCC medical unit and treated.
7 ¶ 3.

Pitts was taken to

Hernandez Decl., ECF No. 113-

Hernandez charged Tuimaleaiifano with assault and

reported that Pitts “never threw a punch, but rather[,] defended
himself by covering up from the punches.”
PageID #640.

Id., ECF No. 113-8,

Hernandez says that he was unaware of animosity

between Tuimaleaiifano and Pitts, or that Pitts was concerned for
his safety from the gang members or ACOs who were allegedly
involved in the assault on Nievis.

Hernandez Decl., ECF No. 113-

7 ¶ 4.
Pitts claims that (1) he informed Dr. Leland and IGS
Rivera of his fears of reprisal from the ACOs and gang members
involved in Nievis’ attack before his own attack, but they failed
to protect him; (2) Tanuvasa enabled Tuimaleaiifano’s assault by

7

improperly substituting leg irons for handcuffs, which Pitts
alleges were too loose; and (3) Hernandez failed to intervene
when Tuimaleaiifano began to assault him, all with deliberate
indifference to Pitts’ safety.

Pitts alleges Defendants’ actions

violated the United States and Hawaii Constitutions and his
“protected liberty interest [under] Dept of Public Safety Policy
493.12.01 and 493.12.03.”6

FAC, Counts I-IV, ECF No. 46, PageID

#280-83.
II.
A.

LEGAL STANDARDS7

Summary Judgment
Summary judgment is proper when there is no genuine

issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Rule 56(a)

mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear

6

Section 493.12.01, titled “Right to Safe Custody,”
provides that prison employees shall take reasonable steps to
protect inmates from violent assaults from other inmates or
facility personnel. Section 493.12.03, titled “Inmate Grievance
and Appeals Process,” governs the DPS grievance process.
7

Pitts received notice of the requirements for opposing
Defendants’ Motion. See ECF No. 114 (Rand Notice provided
concurrently with Amended Motion); ECF Nos. 28, 75, 85, 86, 101
(previous Rand Notices); see also Rand v. Rowland, 154 F.3d 952
(9th Cir. 1998); Woods v. Carey, 684 F.3d 934, 935–36 (9th Cir.
2012).

8

the burden of proof at trial.”

Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“When the moving party has carried its burden

under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586–87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247–48 (1986) (stating that a party cannot
“rest upon the mere allegations or denials of his pleading” in
opposing summary judgment).
The opposing party need not establish a material issue
of fact conclusively in its favor to establish a factual dispute.
It is sufficient that “the claimed factual dispute be shown to
require a jury or judge to resolve the parties’ differing

9

versions of the truth at trial.”

T.W. Elec. Serv., Inc. v. Pac.

Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
Thus, the “purpose of summary judgment is to ‘pierce the
pleadings and to assess the proof in order to see whether there
is a genuine need for trial.’”

Matsushita Elec. Indus. Co., 475

U.S. at 587 (quoting Fed. R. Civ. P. 56(e) advisory committee’s
note on 1963 amendments).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a

motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor” (citations
omitted)).
B.

Qualified Immunity
Qualified immunity shields government officials from

liability for civil damages so long as their actions do not
violate clearly established statutory or constitutional rights of

10

which a reasonable person would have known.
555 U.S. 223, 231 (2009).

Pearson v. Callahan,

Qualified immunity will not protect

the “plainly incompetent” or those “who knowingly violate the
law.”

Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479

F.3d 1175, 1180 (9th Cir. 2007) (quoting Hunter v. Bryant, 502
U.S. 224 (1991)).

Qualified immunity balances the need to hold

government officials accountable for irresponsibly exercising
their authority, with the need to protect officials from
harassment, distraction, and liability when reasonably performing
their duties.

Pearson, 555 U.S. at 231.

A qualified immunity analysis has two parts: “whether,
taken in the light most favorable to the party asserting the
injury, that party has established a violation of a federal
right[,]” Preschooler II, 479 F.3d at 1180 (citing Saucier v.
Katz, 533 U.S. 194, 201 (2001); and whether this right was
clearly established at the time of the defendant’s alleged
misconduct.

Saucier, 533 U.S. at 201.

The “clearly established”

test is satisfied when unlawfulness is apparent in light of
preexisting law.

Preschooler II, 479 F.3d at 1180 (citing Hope

v. Pelzer, 536 U.S. 730, 739 (2002)).

A third question may also

be considered: “whether the officer could have believed,
reasonably but mistakenly . . . that his or her conduct did not
violate a clearly established constitutional right.”

Skoog v.

Cnty. of Clackamas, 469 F.3d 1221, 1229 (9th Cir. 2006); but see

11

Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007) (third prong
considered instructive but not determinative).
The plaintiff bears the burden of showing that the
right he or she claims was violated was clearly established.
Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002).

If the

plaintiff meets this burden, the burden shifts to the defendant
to demonstrate that the defendant reasonably believed the alleged
conduct was lawful.
Cir. 1996).

Trevino v. Gates, 99 F.3d 911, 916–17 (9th

Courts may exercise their sound discretion in

deciding which of the two Saucier prongs to address first.
Pearson, 555 U.S. at 236.
III.

DISCUSSION

“To sustain an action under section 1983, a plaintiff
must show ‘(1) that the conduct complained of was committed by a
person acting under color of state law; and (2) that the conduct
deprived the plaintiff of a federal constitutional or statutory
right.’”

Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007)

(citation omitted), vacated and remanded on other grounds, 129 S.
Ct. 2431 (2009); accord West v. Atkins, 487 U.S. 42, 48 (1988).
A.

Failure to Protect
Prison officials are required to take reasonable

measures to guarantee the safety of inmates and they have a duty
to protect prisoners from violence at the hands of other

12

prisoners.8

Farmer v. Brennan, 511 U.S. 825, 832-33 (1994);

Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

To state a

claim for failure to protect from threats to safety, an inmate
must allege facts to support that he was incarcerated under
conditions posing a substantial risk of serious harm and that
prison officials were “deliberately indifferent” to his safety.
Farmer, 511 U.S. at 834; Frost, 152 F.3d at 1128; Redman v.
County of Los Angeles, 942 F.2d 1435, 1443 (9th Cir. 1991) (en
banc).

That is, Pitts must set forth facts supporting an

inference that Defendants knew of, but disregarded, an excessive
risk to his safety.

Farmer, 511 U.S. at 837.

“[T]he official

must both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he must
also draw the inference.”

Farmer, 511 U.S. at 837; Frost, 152

F.3d at 1128; Redman, 942 F.2d at 1442.
A showing of deliberate indifference “does not require
that the guard or official ‘believe to a moral certainty that one
inmate intends to attack another at a given place at a time
certain before that officer is obligated to take steps to prevent
such an assault.

But, on the other hand, he must have more than

a mere suspicion that an attack will occur.’”

8

Berg v. Kincheloe,

Pitts was a pre-trial detainee at OCCC. His claims
therefore arise under the Fourteenth Amendment’s Due Process
Clause, but are nonetheless evaluated under Eighth Amendment
standards. See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011,
1017 (9th Cir. 2010)
13

794 F.2d 457, 459 (9th Cir. 1986) (citations omitted).

The

deliberate indifference standard is therefore one above mere
suspicion, but below absolute certainty or intent to inflict
harm.
B.

Retaliation
Prisoners have a constitutionally protected right to

file grievances.
2003).

Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir.

As such, prison guards are prohibited from retaliating

against prisoners for filing grievances.

To establish a claim

for retaliation, a prisoner must allege that (1) a prison
official took some adverse action against him (2) because of (3)
the prisoner’s protected conduct, and that such action (4)
chilled the prisoner’s exercise of his First Amendment rights,
and (5) did not reasonably advance a legitimate correctional
goal.

Wood v. Beauclair, 692 F.3d 1041, 1051 (9th Cir. 2012);

Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)
(footnote omitted).
B.

Defendant Rivera
Pitts claims that IGS Rivera failed to protect him from

Tuimaleaiifano’s assault and failed to properly follow the
prison’s grievance policy set forth in PPM § 493.12.03.9

9

See

Pitts provides incomplete, non-consecutive sections of PPM
493.12.03, marked with asterisks and arrows denoting his
argument. See ECF Nos. 163-14, 163-18. Because PPM 493.12.03 is
publicly available at the Martin J. Pence Court Library for the
(continued...)
14

FAC, Count I, ECF No. 46, PageID #280, see also Ex. A attached to
Order.

Pitts alleges that he submitted Grievance No. 161639 on

September 13, 2009, and concludes that Rivera therefore knew
about his fears before the attack occurred on September 16, 2009,
and did nothing to prevent it.

Rivera counters that she received

Pitts’ grievance on September 16, 2009, the day of the attack,
responded to it within twenty-four hours, and was unaware of his
fears before the attack.
Accepting that Pitts deposited Grievance No. 161639
into the prison’s grievance receptacle immediately after signing
it on Sunday, September 13, 2009, this does not establish that
Rivera received it the same day.

Grievance No. 161639 is

initialed on the top right-hand corner by an unidentified ACO as
received on Monday, “9/14/09.”

See ECF No. 113-2.

There is a

second notation in different handwriting showing “W05/IGS 9/16,”
indicating that IGS Rivera received Grievance No. 161639 on
September 16, 2009, as she attests.

It is undisputed that Rivera

responded to the grievance on September 17, 2009.

See ECF No.

113-3.
Pitts submits two other grievances that he filed that
were also initialed by prison officials as received the day after

9

(...continued)
District of Hawaii, the court reviewed it in its entirety, and
attaches it to this Order. See DPS PPM 493.12.03, eff. Apr. 3,
1992 (att. as Ex. A).
15

he signed them, initialed again two days later, and answered four
to eleven days thereafter.
13.

See Pitts’ Exs., ECF No. 163-12, 163-

For example, Pitts signed Grievance No. 161650 on September

18, 2009, it is initialed received on “09/19/09,” and again
“9/21.”

See ECF No. 163-12.

later, on September 24, 2009.

Rivera responded to it four days
Id.

Pitts signed Grievance No.

149756 on October 31, 2009, it is initialed as received on “11-109,” again on “11/2,” and responded to by the “IIO,” on
“11/13/09.”

ECF No. 163-13.

These documents show a pattern that

supports Rivera’s declaration that she received Grievance No.
161639 three days after Pitts signed it.
Although the court must draw all reasonable inferences
in favor of the non-moving party, Pitts fails to support his
conclusory allegations that Rivera received Grievance No. 161639
before the attack with admissible evidence.

Pitts provides

nothing tending to show that Rivera would have received his
grievance the same day that he signed it or earlier than she
declares she did.

Rather, the undisputed evidence supports

Rivera’s assertion that she received Grievance No. 161639 on
September 16, 2009, the same day that Pitts was attacked.

And

there is no indication that Rivera was aware of Pitts’ letters to
the FBI, DPS Internal Affairs, the Ombudsman, or others detailing
his fears.

16

Moreover, the court finds no violation of the sections
of PPM § 493.12.03 that Pitts marked in support of his claims
against Rivera.

First, Rivera did not refuse to accept or

process Grievance No. 161639 as he alleges.

Rather, she

explained that his grievance was speculative because nothing had
happened yet to grieve.

See PPM §§ 493.12.03.4; 493.12.03.13-14.

Second, Rivera recognized that Pitts was attempting to
alert prison officials of his fears, and forwarded his grievance
to the Administrative Captain and Chief of Security to
investigate Pitts’ claims and take necessary precautions.
PPM §§ 493.12.04.1(b)(5); 493.12.03.4.1(b)(2).

See

Thus, although

Pitts claims that Rivera did nothing to protect him, the record
shows that she clearly took steps to alert prison officials about
Pitts’ fear of assault, albeit too late to prevent the attack at
issue.
Third, by returning Pitts’ grievance to him with this
information, Rivera effectively explained the steps she had taken
to protect him.

See PPM § 493.12.03.8(c)(4).

And finally,

insofar as Pitts alleges that Rivera failed to track this
grievance in the prison computer system, he provides no evidence
to support this speculation, or show how a failure to do so
caused him any harm.

See PPM § 493.12.03.4(a).

These are the

only sections of the PPM § 493.12.03 to which Pitts refers and
the court will not scour the record to determine whether PPM

17

§ 493.12.03 otherwise establishes a genuine issue of material
fact.

See Carmen v. San Francisco Unified Sch. Dist., 237 F.3d

1026, 1031 (9th Cir. 2001); see also Bias v. Moynihan, 508 F.3d
1212, 1219 (9th Cir. 2007) (holding that a district court has no
duty to search for evidence of a factual dispute, even if the
opposing party is pro se).
Pitts cannot rely on his own declaration to refute
Rivera’s statement.

He must provide evidence tending to show

that Rivera received the grievance early enough to take steps to
prevent the attack.

See Jones v. Blanas, 393 F.3d 918, 923 (9th

Cir. 2004) (stating that the court must consider a pro se
plaintiff’s contentions in motions and pleadings as evidence in
opposition to a motion for summary judgment when they are based
on personal knowledge and set forth facts that would be
admissible in evidence); see also Hansen v. United States, 7 F.3d
137, 138 (9th Cir. 1993) (“When the non-moving party relies on
its own affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.”).
Pitts fails to show that Rivera knew of a substantial
risk of serious harm to him before the attack and was nonetheless
“deliberately indifferent” to his safety.

He also fails to show

that she violated PPM §§ 493.12.01 or 493.12.03.

Rivera is

entitled to qualified immunity and summary judgment is GRANTED as

18

to Pitts’ state and federal claims against her.
B.

Defendant Hernandez
Pitts alleges that ACO Hernandez did “absolutely

nothing” to protect him while Tuimaleaiifano attacked him in the
law library.

FAC, Count III, ECF No. 46, PageID #279.

Pitts

must show that Hernandez “[knew] of and disregard[ed] an
excessive risk to [his] . . . safety,” that is, that Hernandez
was “aware of facts from which the inference could be drawn that
a substantial risk of serious harm exists” and that he drew that
inference.

See Farmer, 511 U.S. at 837; see also Simmons v.

Navajo County, 609 F.3d 1011, 1017 (9th Cir. 2010).

Hernandez

can avoid liability by presenting evidence that he lacked
knowledge of the risk or by presenting evidence that he made a
reasonable, albeit unsuccessful, response to a risk.

See Farmer,

511 U.S. at 844–45; see generally Berg, 794 F.2d at 462.
First, to the extent that Pitts claims that Hernandez
knew or should have known that Tuimaleaiifano (or other gang
members) posed a threat to Pitts and failed to prevent the
attack, his claim fails.

As noted, Rivera did not receive Pitts’

grievances until the day of the attack.

This was too late for

her to inform OCCC officials of Pitts’ fears, so they could alert
OCCC staff to take precautions to prevent an attack on Pitts.
Even if Pitts wrote DPS Internal Affairs, the Ombudsman, the FBI,
and the Department of Justice on Saturday, September 12, 2009, as

19

he claims, the record is devoid of evidence that these agencies
received his letters and alerted OCCC officials of Pitts’ fears
before Tuimaleaiifano attacked him.

Pitts therefore fails to

show that Hernandez was aware of an excessive risk to Pitts’
safety before the attack occurred.
Second, Hernandez reasonably responded to
Tuimaleaiifano’s attack.

Hernandez declares that he called for

backup when Tuimaleaiifano began assaulting Pitts.
Decl., ECF No. 113-7 ¶ 3.

Hernandez

Pitts concedes that back up officers

arrived shortly after the attack began, and stopped the attack.
See FAC, ECF No. 46, PageID #279 (“After being hit about 20 more
times plaintiff then felt officers grab [Tuimaleaiifano] off
him.”).

Pitts does not explain who alerted these officers, if

not for Hernandez.

Pitts admits that he was blindsided, “dazed

and off balanced,” and struggling to protect himself from
Tuimaleaiifano’s blows during the attack, implicitly
acknowledging that he did not observe what Hernandez did during
the attack.

FAC, ECF No. 46, PageID #279.

Although Pitts says inmate Tyson Liulama “confirm[ed]
Defendant Hernandez did nothing to stop [Tuimaleaiifano] from
hitting me,” Liulama refuses to provide a verified statement to
this effect, rendering this inadmissible hearsay.
ECF No. 163-2.

Pitts Decl.,

Even if the court could accept Liulama’s alleged

statement, Pitts fails to address Hernandez’s need to protect

20

himself and the other inmates present, while restoring order and
maintaining control in the law library until backup assistance
arrived.

When a prison disturbance occurs, prison officials must

make “decisions ‘in haste, under pressure, and frequently without
the luxury of a second chance.’”

Hudson v. McMillian, 503 U.S.

1, 6 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 320
(1986)).

This court is loathe to second guess prison employees’

split second decisions made to restore order and ensure safety.
Clearly, Pitts is mistaken that Hernandez did “absolutely
nothing,” when the attack began.
Viewing the evidence in the light most favorable to
Pitts, the court finds that Hernandez did not act with deliberate
indifference to a substantial risk of serious harm to Pitts or
violate PPM § 493.12.01.10

Hernandez is entitled to qualified

immunity and summary judgment is GRANTED as to Pitts’ state and
federal claims against him.
C.

Defendant Tanuvasa
Pitts alleges that ACO Tanuvasa failed to protect him,

retaliated against him, and violated prison policies when he
substituted leg irons for handcuffs to restrain Tuimaleaiifano’s
wrists.

See FAC, Count IV, ECF No. 46, PageID #283.

Pitts

claims that Tanuvasa is a member of or associated with the S.O.S.

10

Hernandez was not involved in Pitts’ grievance and PPM
§ 493.12.03 does not apply to him.
21

Crips gang, as is Tuimaleaiifano and the inmates who assaulted
Nievis.

Pitts concludes that Tanuvasa therefore acted in

retaliation for Pitts’ reporting the S.O.S. gang attack on
Nievis.
Tanuvasu counters that Tuimaleaiifano’s wrists were too
large to accommodate handcuffs and that he followed an unwritten
prison policy allowing the substitution of leg irons for
handcuffs when an inmate’s wrists are too large.

Tanuvasa states

that he was unaware that Pitts had reported the S.O.S. gang
attack on Nievis, feared reprisal from other S.O.S. gang members,
or that there was antagonism between Pitts and Tuimaleaiifano.
See Tanuvasa Decl., ECF No. 113-6 ¶¶ 3-5.
1.

No Evidence That Tanuvasa Was Aware of Pitts’
Grievances or Associated with the S.O.S. Gang
As noted, Rivera did not receive Pitts’ grievances

until the day of the attack, too late to alert OCCC staff to take
extra precautions to prevent an attack on Pitts from gang
members.

Pitts therefore fails to show that Tanuvasa had any

reason to suspect that Pitts was at a risk of violence from
Tuimaleaiifano in particular or S.O.S. gang members in general
when he readied Tuimaleaiifano for transport to the law library.
Without such knowledge, Tanuvasa could not have acted with
deliberate indifference to Pitts’ safety.
Even presuming that Tanuvasa knew Pitts reported the
S.O.S. gang members’ attack on Nievis, Pitts fails to provide
22

evidence showing that Tanuvasa was associated with the S.O.S.
Crips gang and his actions were motivated by this alleged
association.

Pitts claims that Kuhio Park Terrace housing

complex is a known S.O.S. Crips gang residence and elicits
Tanuvasa admission that he once lived at Kuhio Park Terrace.

See

ECF No. 163-23 (“Pitts: Have you ever lived at Kuhio Park Terrace
(KPT) housing apartments? Tanuvasa: Yes”).

Pitts then concludes

that Tanuvasa is or was an S.O.S. gang member and acted in
support of the gang.

Pitts provides no objective, admissible

evidence that Kuhio Park Terrace is a “known” gang residence,
however, or that Tanuvasa’s prior residence at Kuhio Park Terrace
proves that he is affiliated with the S.O.S gang.

This is simply

Pitts’ unsupported speculation, not competent, circumstantial,
evidence.
Pitts next alleges that inmate Liulama, an alleged
S.O.S. gang member, told him that Tanuvasa is an “O.G. for
S.O.S.”11

Pitts Decl., ECF No. 163-2.

Pitts says that Liulama

refuses to submit an affidavit stating this, however, because
Liulama said that Tanuvasa is his uncle.

Id.

As noted above,

Liulama’s unverified statements to Pitts are inadmissible
hearsay.

Moreover, Tanuvasa flatly denies being related to

Liulama, see ECF No. 163-23, and Pitts fails to refute this with

11

“O.G.,” is slang for “original gangster.”
http://www.urbandictionary.com/define.php?term.
23

See,

competent evidence or to provide any other evidence showing
Tanuvasa’s alleged gang connection.
Pitts asserts that Tanuvasa admitted guilt when he
allegedly stated, “Don[’]t blame Masoi or Sgt Thompson[,] I did
it.

I’m the one who put the cuffs on Chris,” and “I read your

report[,] good luck on [g]etting it filed.”

FAC, ECF No. 46,

PageID #279; see also Vierra Decl., ECF No. 163-7 (stating, “I
heard officer Tanavasa come up to the 3rd floor and say[,]
‘Pitts[,] don’t blaim [sic] Mosoi[,] I did it.
put the cuffs on you.

I am the one who

Do what you got to do Pitts.”); Randle

Decl., ECF No. 163-8 (stating, “I . . . heard ACO Tanuvasa, tell
inmate Pitts, that he put the handcuffs [on] the inmate who
jumped him inside the law L[i]brary.”).

Considering these

statements in the light most favorable to Pitts, they only
support the uncontested fact that Tanuvasa accepted
responsibility for restraining Tuimaleaiifano; they are not an
admission of deliberate indifference or retaliation.
Pitts fails to show that Tanuvasa substituted leg irons
for handcuffs to enable Tuimaleaiifano’s attack because he is
associated with the S.O.S. gang, either with deliberate
indifference to Pitts’ safety or in retaliation for Pitts’
reporting an attack by other S.O.S. gang members on Nievis.

See

Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (“To prevail
on a retaliation claim, a plaintiff must show that his protected

24

conduct was ‘the “substantial” or “motivating” factor behind the
defendant’s conduct.’”).
2.

No Violation of Prison Policies
Pitts claims that Tanuvasa violated prison policies

(and state law) by failing to provide him safe custody pursuant
to PPM § 493.12.01.12

After in camera review, Magistrate Judge

Chang and Magistrate Judge Puglisi granted Pitts limited access
to the confidential sections of PPM COR.08.24 and others,
detailing the DPS’ policies for the use of restraints.
Orders, ECF Nos. 78, 80, 141, 145, 146, 150.

See

In general, these

confidential sections provide that inmate restraints should be
used when needed to prevent harm to the inmate or others and to
maintain security without creating pain, restricting circulation,
or causing discomfort.

Id., SEALED PageID #1070 (PPM

COR.08.24.3.1).; see also Tanuvasa Interrog. No. 14, ECF No. 16323, PageID #1078.

The degree of restraint used is determined by

various criteria, including the inmate’s charges, security
classification, potential for violence or dangerousness, escape
risk, and attitude toward the movement.
#1072, (PPM COR.08.24.4.1).

Id., SEALED PageID

Inmates in disciplinary segregation,

such as Pitts and Tuimaleaiifano, are generally required to be
restrained for all movements.

Id., SEALED PageID #1075 (PPM

12

Tanuvasa is not alleged to have been involved with Pitts’
grievance and PPM § 493.12.03 does not apply to him.
25

7.11.50.9).
Pitts states that Tuimaleaiifano was a validated
violent gang member, thus, prison policy requires leg restraints
and handcuff covers when he is transported.

Pitts says he

intends to “subpoena two Arizona guards to refute” Tanuvasa’s
claim that Tuimaleaiifano’s wrists were too large for handcuffs.
Pitts’ Opp’n, ECF No. 163, PageID #1021 (stating that he will
provide Tuimaleaiifano’s “S.T.G. documentation to his membership
in the S.O.S. gang”).

Pitts fails to provide any evidence

supporting these allegations, however, although this incident
occurred four years ago and he commenced this action two and a
half years ago.13
There is no dispute that Tuimaleaiifano was classified
as a minimum custody parole violator on the day of the attack.
See Pitts’ Ex. O, ECF No. 163-19.

Tuimaleaiifano was not

reclassified until after the investigation on Pitts’ assault.
Id.

While this may have been in error based on Tuimaleaiifano’s

incident reports in the four months prior to the investigation of
Pitts’ attack, see id., there is no evidence that Tanuvasa was or
should have been aware of Tuimaleaiifano’s incident record,

13

The court has extended the discovery deadline and trial
date several times, actively intervened in Pitts’ many discovery
disputes, ensured that Pitts received the caselaw he requested,
and extended the time for Pitts’ to file his Opposition to this
Motion. See e.g., ECF Nos. 37, 71, 77, 78, 93, 100, 101, 111,
129.
26

beyond his classification as a minimum custody inmate in
disciplinary segregation.

It is further undisputed that

Tuimaleaiifano was being transported within the facility, thus,
posing less risk of escape.
After a close review of DPS’ Confidential PPM
COR.08.24, the court finds that Tanuvasa did not violate prison
policy or procedure when he restrained Tuimaleaiifano on
September 16, 2009, as Pitts alleges.
PageID #1070-76.

See SEALED ECF No. 163-22,

The record shows that Tuimaleaiifano was

classified as minimum custody, was only being transported within
OCCC to the law library, and had no apparent gang validation or
other documented reasons for Tanuvasa to believe that he was an
extreme escape risk or posed a particular danger to himself,
Pitts or others.

Tanuvasa was not required to use heightened

restraints on Tuimaleaiifano, such as leg irons or handcuff
covers, pursuant to DPS policy.

Nor is there any evidence

showing that Tanuvasa violated the PPM when he substituted leg
irons for handcuffs.

Tanuvasa did not violate a clearly

established right or violate state law when he restrained
Tuimaleaiifano for transport to the law library on September 16,
2009 and is entitled to qualified immunity.

Summary judgment is

GRANTED as to Pitt’s state and federal claims against Tanuvasa.

27

4.

Claims Against Dr. Leland
The record substantiates that Pitts told Dr. Leland

about his fears of reprisal from gang members and guards on or
about 3:00 p.m., Monday, September 14, 2009, approximately two
days before Pitts was attacked.

Dr. Leland, a part-time

psychiatrist at OCCC, apparently told Pitts that he did not have
the authority to move him to Module 1, which was overcrowded, but
that he would speak with Drs. Evans and Yamamoto about a
transfer.

The record does not reflect whether Dr. Leland did so;

Pitts was attacked less than forty-eight hours later.
Dr. Leland points out that Pitts was not attacked in
the Holding Unit, from which he sought a transfer, suggesting
that whether he had alerted Drs. Evans and Yamamoto was
immaterial to whether Pitts would be attacked.

Dr. Leland

provides no evidence to support this speculation, however.

It is

reasonable to infer that, had Dr. Leland notified Dr. Evans,
Dr. Yamamoto, or other prison officials of Pitts’ allegations,
they could have alerted staff and taken extra precautions to
protect Pitts from known gang members and their associates
regardless of his housing unit.

The question is not whether

prison officials failed to transfer Pitts to Module One.

It is

whether Dr. Leland knew of a substantial risk of serious harm to
Pitts and ignored that possibility with deliberate indifference
to his safety.

A genuine issue of material fact remains whether

28

Dr. Leland knew of a substantial risk of serious harm to Pitts
and was deliberately indifferent to his safety by failing to
notify prison officials or take other steps to protect Pitts.
Dr. Leland is not entitled to qualified immunity.

It

was clearly established by 2009, when the attack on Pitts
occurred, that the failure of a prison official to respond to a
known, credible threat to an inmate’s safety constituted a
violation of the inmate’s Eighth Amendment rights.
F.2d 460-61.

See Berg, 794

As an OCCC physician and employee, Dr. Leland had a

duty to protect the inmates under his care.

Dr. Leland

acknowledges that Pitts explicitly discussed his fear of an
assault from the gang members and officers who were involved in
Nievis’ attack two days before Pitts was attacked.

It is unclear

what, if anything, Dr. Leland did in response to Pitts’ request
for protection because Dr. Leland asserts he has no recollection
of the conversation, despite his own notes detailing Pitts’
fears.

Based on the record before the court, it is impossible to

determine whether Dr. Leland reasonably but mistakenly believed
that his conduct did not violate a clearly established
constitutional.

See Skoog, 469 F.3d 1221, 1229 (9th Cir. 2006).

It is unclear whether Dr. Leland recognized the risk to Pitts on
the information that he was given, whether Dr. Leland took any
steps to protect Pitts, or even what actions Dr. Leland should
have taken in this instance.

A reasonable jury could find that

29

Pitts’ fears were credible, Dr. Leland was aware of those fears,
and failed to take adequate steps to protect Pitts with
deliberate indifference to his safety.

Summary judgment is

DENIED as to Pitts’ claims against Dr. Leland.
IV.
(1)

CONCLUSION

Defendants’ Motion for Summary Judgment is GRANTED

as to Pitts’ claims that Defendants’ Rivera, Tanuvasa, and
Hernandez failed to protect him from assault or retaliated
against him in violation of federal or state law.
(2) Summary judgment is DENIED as to Pitts’ claims
against Dr. Leland.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 14, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

Pitts v. Sequeira, et al., Civ. No. 11-00281 LEK; PSA/Ords 2013/Pitts 11-281
lek (MSJ draft); J:\Denise's Draft Orders\LEK\Pitts 11-281 lek (partial grt
MSJ).wpd

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