Isom v. Wagatsuma et al

Filing 28

Order GRANTING Defendants' Motion For Judgment On The Pleadings And Dismissing The Complaint With Leave To Amend. Defendants Motion for Judgment on the Pleadings is GRANTED 22 , and Plaintiffs Complaint 1 is DISMISSED. Plaintiffs claims agains t Defendants in their official capacities and for injunctive relief are DISMISSED without leave to amend, and his claims against Defendants in their individual capacities are DISMISSED with leave to amend. Plaintiff may file a First Amended Complaint , as set forth above, by October 20, 2017. Failure to timely file a First Amended Complaint will result in dismissal of this action with prejudice for failure to state a claim. Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 9/18/17. (cib, )(see 16 pag e order for further details)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry. Copy of order mailed to pro se plaintiff

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TERENCE OLSEN ISOM,

CIV. NO. 16-00532 JMS-KJM

Plaintiff,
vs.
NEAL WAGATSUMA; PAUL LEMKE,

ORDER GRANTING
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE
PLEADINGS AND DISMISSING
THE COMPLAINT WITH LEAVE
TO AMEND

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT ON
THE PLEADINGS AND DISMISSING THE COMPLAINT WITH LEAVE
TO AMEND
I. INTRODUCTION
On September 26, 2016, pro se Plaintiff Terence O. Isom (“Plaintiff”)
filed a prisoner civil rights Complaint against Defendants Kauai Community
Correctional Center (“KCCC”) Warden Neal Wagatsuma (“Wagatsuma”) and
KCCC Adult Correctional Officer (“ACO”) Paul Lemke (“Lemke”) (collectively,
“Defendants”) in both their official and individual capacities, alleging claims
pursuant to 42 U.S.C. § 1983 for violation of his constitutional right to “personal
correspondence.” ECF No. 1. Before the court is Defendants’ Motion for
Judgment on the Pleadings. ECF No. 22. For the reasons set forth below, the
Motion is GRANTED, and the Complaint is DISMISSED with leave to amend.

II. BACKGROUND
Based on allegations in the Complaint and state-court records, of
which the court takes judicial notice, 1 the court sets forth the following facts.
Plaintiff was arrested on May 30, 2016, for multiple offenses. See Hawaii State
Judiciary Information Management System eCourt Kokua (“eCourt Kokua”),
http://jimspss1.courts.state.hi.us:8080/eCourt/ECC/CaseSearch.iface (last visited
Sept. 13, 2017). On January 18, 2017, the state court sentenced Plaintiff to a oneyear term of incarceration and a separate eighteen-month term of incarceration, to
be served concurrently and with credit for time served. Id. In addition, the court
imposed two concurrent four-year terms of “hope probation.” Id. Conditions
imposed by the court include that if, after serving a period of nine months
incarceration, Plaintiff is accepted into an in-patient substance-abuse treatment
program, he may be released to that program. Id. If Plaintiff fails to complete the
program, he must return to KCCC to serve the remainder of his sentence. Id. If
Plaintiff completes the program, he must return to KCCC to serve the remainder of
his sentence unless his attorney petitions the state court to modify probation to
excuse the remaining jail time. Id.
1

The court “may take [judicial] notice of proceedings in other courts, both within and
without the federal judicial system, if those proceedings have a direct relation to matters at
issue.” Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011); see also Lee v. City of L.A., 250
F.3d 668, 689-90 (9th Cir. 2001) (“A court may take judicial notice of matters of public record.”)
(citation and quotation marks omitted).
2

While incarcerated at KCCC, Plaintiff submitted the names of his
girlfriend, Kimberly Oakes, and her sister, Kristen Oakes, to be included on his
approved correspondence list. Compl. at 5. Plaintiff wrote letters to each of them,
and they wrote letters to him. Id. The Complaint alleges that “[t]he facility would
not send my letters stating that both Kim and Kristen were co-defendants in my
upcoming case.” Id. The Complaint further alleges that “[t]hey also returned the
letters from both Kim and Kristen.” Id. Although Kim was Plaintiff’s codefendant, Kristen was not. Id. Multiple letters from each person were returned or
denied. Id. Because of Plaintiff’s inability to correspond with Kim and Kristen,
bills in Plaintiff’s name could not be paid. Id. Plaintiff’s “vehicle was left on the
highway and has been towed and damaged.” Id. Plaintiff alleges that he has
suffered mentally and emotionally. Id.
The Complaint seeks damages and an injunction ordering that KCCC
allow Plaintiff to correspond with Kim and Kristen and that Plaintiff serve the
remainder of his sentence at Federal Detention Center Honolulu. Id. at 6.
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 the instant Motion for Judgment
on the Pleadings. ECF No. 22. Plaintiff filed an Opposition on August 28, 2017,

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ECF No. 25, and Defendants filed a Reply on September 5, 2017, ECF No. 26. A
hearing was held on September 18, 2017.
III. STANDARD OF REVIEW
A party may make a motion for judgment on the pleadings at any time
after the pleadings are closed, but within such time as to not delay the trial. Fed. R.
Civ. P. 12(c). Because the issue presented by a Rule 12(c) motion is substantially
the same as that posed in a 12(b)(6) motion -- whether the factual allegations of the
complaint, together with all reasonable inferences, state a plausible claim for relief
-- the same standard applies to both. See Cafasso v. Gen. Dynamics C4 Sys., 637
F.3d 1047, 1054 & 1054 n.4 (9th Cir. 2011); see also Dworkin v. Hustler Magazine
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (holding that Rule 12(c) and Rule
12(b)(6) motions differ in time of filing but are otherwise “functionally identical,”
and applying the same standard of review).
“A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). In considering a
Rule 12(c) motion, the court “must accept all factual allegations in the complaint
as true and construe them in the light most favorable to the non-moving party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The court, however, “need
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not assume the truth of legal conclusions cast in the form of factual allegations.”
United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986).
Thus, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly,
550 U.S. at 555). And factual allegations that only permit the court to infer “the
mere possibility of misconduct” do not show that the pleader is entitled to relief as
required by Rule 8. Iqbal, 556 U.S. at 679.
A motion for judgment on the pleadings is properly granted when
there are no disputed issues of material fact, and the moving party is entitled to
judgment as a matter of law. See Ventress v. Japan Airlines, 603 F.3d 676, 681
(9th Cir. 2010) (citations omitted). Judgment on the pleadings is not appropriate if
the court considers matters outside of the pleadings; in such cases, the motion must
be converted to a Rule 56 motion for summary judgment, and the non-moving
party must be granted an opportunity to respond. See Hal Roach Studios, Inc. v.
Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). The court may,
however, “consider certain materials — documents attached to the complaint,
documents incorporated by reference in the complaint, or matters of judicial notice
— without converting the motion . . . into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

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Rule 12(c) does not expressly address partial judgment on the
pleadings, leave to amend, or dismissal. But courts commonly “apply Rule 12(c)
to individual causes of action,” Strigliabotti v. Franklin Res., Inc., 398 F. Supp. 2d
1094, 1097 (N.D. Cal. 2005) (citation omitted), and have discretion to grant a Rule
12(c) motion with leave to amend, or dismiss the action instead of entering
judgment. See Goens v. Adams & Assocs., Inc., 2017 WL 3981429, at *2 (E.D.
Cal. Sept. 11, 2017) (citing Carmen v. San Francisco Unified Sch. Dist., 982 F.
Supp. 1396, 1401 (N.D. Cal. 1997) and Moran v. Peralta Cmty. Coll. Dist., 825 F.
Supp. 891, 893 (N.D. Cal. 1993)).
Plaintiff is appearing pro se; consequently, the court liberally
construes the Complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (per curiam). The court
also recognizes that “[u]nless it is absolutely clear that no amendment can cure the
defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies and
an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of Corr.,
66 F.3d 245, 248 (9th Cir. 1995); see also Crowley v. Bannister, 734 F.3d 967,
977-78 (9th Cir. 2013).
IV. DISCUSSION
Defendants contend that (1) Plaintiff’s claims for injunctive relief are
moot because Plaintiff is no longer incarcerated at KCCC; (2) the Eleventh
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Amendment to the United States Constitution bars Plaintiff’s official-capacity
claims; and (3) because the Complaint fails to allege Defendants’ personal
participation, the individual-capacity claims fail. Defs.’ Mem. at 1-2, ECF
No. 22-1. The court addresses these issues in turn.
A.

Claims for Injunctive Relief
Plaintiff argues that his claims for injuctive relief are not moot

because he must return to KCCC to complete the remainder of his sentence
whether he completes his drug-treatement program or not. Pl.’s Opp’n at 2. The
court disagrees.
Claims for injunctive relief generally become moot when a prisoner is
transferred or released from incarceration. See Andrews v. Cervantes, 493 F.3d
1047, 1053 n.5 (9th Cir. 2007) (stating that a prisoner’s claims for injunctive relief
generally become moot upon transfer); Holt v. Stockman, 2012 WL 259938, at *6
(E.D. Cal. Jan. 25, 2012) (“[A] prisoner’s claim is rendered moot when he is
transferred from the institution whose employees he seeks to enjoin from harming
him.”) (citing Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991)).
Excepted from this mootness doctrine are claims that are “capable of
repetition, yet evading review.” Spencer v. Kimura, 532 U.S. 1, 17 (1998); United
States v. Sanchez-Gomez, 859 F.3d 649, 669 (9th Cir. 2017). This exception “is
limited to extraordinary cases in which (1) the duration of the challenged action is
7

too short to be fully litigated before it ceases, and (2) there is a reasonable
expectation that the plaintiff will be subjected to the same action again.” Alvarez
v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012) (quoting C.F. ex rel. Farnan v.
Capistrano Unified Sch. Dist., 654 F.3d 975, 983 (9th Cir. 2011) (internal
quotation marks and alteration omitted). A merely speculative possibility that a
plaintiff would be subject to the same action in the future is not sufficient to
establish a “reasonable expectation.” Foster v. Carson, 347 F.3d 742, 748 (9th Cir.
2003) (“The mere fact that a similar order . . . might someday issue does not
establish a ‘reasonable expectation’ that such an order will issue. We have held
that a mere possibility that something might happen is too remote to keep alive a
case as an active controversy.”). And the Ninth Circuit has refused to find a
reasonable expectation where the possibility of recurrence depends on a plaintiff’s
wrongdoing. See Reimers v. Oregon, 863 F.2d 630, 632 & n.4 (9th Cir. 1988)
(holding that plaintiff, who had been released from prison, had no reasonable
expectation of returning to custody because such a return would occur only if he
committed an additional wrongful act, which he was able to prevent from
occurring).
Here, neither the Complaint nor the state-court record include facts
sufficient to establish a reasonable expectation that Plaintiff will again be
incarcerated at KCCC and denied the ability to correspond with Kim and Kristen.
8

The Complaint does not allege any facts addressing this issue, and the state-court
record indicates that Plaintiff’s return to KCCC is purely speculative. According
to the state-court record, Plaintiff must return to KCCC to complete his sentence
(1) if he fails to complete his drug-treatment program, or (2) upon completion of
his drug-treatment program, unless his attorney “petitions the court to modify
probation to excuse the remaining jail time.” See “eCourt Kokua,” http://jimspss1.
courts.state.hi.us:8080/eCourt/ECC/CaseSearch.iface. Under both of these
scenarios, whether Plaintiff must return to KCCC to complete the remainder of his
sentence depends upon circumstances that are at least in part within Plaintiff’s
and/or his counsel’s control.
During the hearing, Plaintiff admitted that if he successfully
completes his drug-treatment program, he most likely won’t have to go back to
prison. In short, Plaintiff’s claim that he would be subject to the same restrictions
on his personal correspondence at KCCC is purely speculative. Thus, the court
finds that the exception for conditions capable of repetition, yet evading review
does not apply, and Plaintiff’s claims for injunctive relief are DISMISSED without
leave to amend.
B.

Official-Capacity Claims
“The Eleventh Amendment bars suits for money damages in federal

court against a state, its agencies, and state officials acting in their official
9

capacities.” Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007);
see Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989) (“[A] suit
against a state official in his or her official capacity is not a suit against the official
but rather is a suit against the official’s office.”). Defendants named in their
official capacities are subject to suit under § 1983 only “for prospective declaratory
and injunctive relief . . . to enjoin an alleged ongoing violation of federal law.”
Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D. Haw. Apr. 23, 2013)
(quoting Wilbur v. Locke, 423 F.3d 1101, 1111 (9th Cir. 2005), abrogated on other
grounds by Levin v. Commerce Energy Inc., 560 U.S. 413 (2010)); see also Ex
parte Young, 209 U.S. 123 (1908).
To the extent Plaintiff seeks damages against Defendants in their
official capacities, Defendants are immune from suit under the Eleventh
Amendment. And because Plaintiff is no longer incarcerated at KCCC, there is no
“ongoing violation of federal law” to be enjoined. That is, Defendants are not
currently violating Plaintiff’s alleged constitutional right to correspondence or
retaliating against Plaintiff. Thus, the Ex parte Young exception, subjecting
defendants acting in their official capacities to suit for § 1983 claims for
prospective injunctive relief, does not apply. Plaintiff’s claims against Defendants
in their official capacities are DISMISSED with prejudice.

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C.

Individual-Capacity Claims
“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 and internal quotation marks omitted), vacated and remanded on
other grounds, 556 U.S. 1256 (2009); see also 42 U.S.C. § 1983; West v. Atkins,
487 U.S. 42, 48 (1988). Additionally, plaintiffs must allege specific injury as a
result of the conduct of a particular defendant, and they must allege an affirmative
link between the injury and the conduct of that defendant. Rizzo v. Goode, 423
U.S. 362, 371-72, 377 (1976). “A person ‘subjects’ another to the deprivation of a
constitutional right, within the meaning of § 1983, if he does an affirmative act,
participates in another’s affirmative acts, or omits to perform an act which he is
legally required to do that causes the deprivation of which complaint is made.”
Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Supervisory personnel may not be held liable under § 1983 for the
actions of subordinate employees based on a theory of respondeat superior or
vicarious liability. Iqbal, 566 U.S. at 676; Crowley v. Bannister, 734 F.3d 967,
977 (9th Cir. 2013); accord Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d
1062, 1074-75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915-16 (9th
11

Cir. 2012) (en banc). That is, an individual cannot be held liable under § 1983
based only on a position as a warden or supervisory correctional officer of a penal
institution. See Ouzts v. Cummins, 825 F.2d 1276, 1277 (8th Cir. 1987) (an
individual’s “general responsibility for supervising the operations of a prison is
insufficient to establish personal involvement”).
Under § 1983, a “supervisor may be liable only if (1) he or she is
personally involved in the constitutional deprivation, or (2) there is a sufficient
causal connection between the supervisor’s wrongful conduct and the
constitutional violation.” Crowley, 734 F.3d at 977 (internal citation and quotation
marks omitted). Supervisors may therefore be liable without personal participation
if they “implement a policy so deficient that the policy itself is a repudiation of
constitutional rights and is the moving force of a constitutional violation.” Id.
(citation and internal quotation marks omitted). The causal connection between
that supervisor and the claimed constitutional violation must be specifically
alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979).
Supervisors may be held liable under § 1983:
(1) for setting in motion a series of acts by others, or
knowingly refusing to terminate a series of acts by
others, which they knew or reasonably should have
known would cause others to inflict constitutional injury;
(2) for culpable action or inaction in training,
supervision, or control of subordinates; (3) for
acquiescence in the constitutional deprivation by
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subordinates; or (4) for conduct that shows a “reckless or
callous indifference to the rights of others.”
al-Kidd v. Ashcroft, 580 F.3d 949, 965 (9th Cir. 2009) (quoting Larez v. City of
L.A., 946 F.2d 630, 646 (9th Cir. 1991), overruled on other grounds by Ashcroft v.
al-Kidd, 563 U.S. 731 (2011)).
Here, the Complaint alleges only that “KCCC,” the “facility,” or
“they” refused to send, or returned, correspondence between Plaintiff and Kim
and/or Kristen. The Complaint fails to allege any specific conduct or personal
involvement by either Defendant. Nor does the Complaint allege a causal
connection between either Defendant and the alleged violation of Plaintiff’s
constitutional rights. That is, the Complaint fails to allege that either Defendant
created or implemented a policy causing Plaintiff’s correspondence with Kim
and/or Kristen to be blocked, knew that Plaintiff’s correspondence would be
blocked, or had specific information that Plaintiff’s correspondence might be
blocked and failed to remedy the issue. 2
In his Opposition, Plaintiff argues that the word “facility” refers to
“the workers and policies” at KCCC. Pl.’s Opp’n at 2. Plaintiff further argues that

2

Because the Complaint failed to allege Defendants’ personal involvement or causal
connection, the court need not determine whether denying Plaintiff’s correspondence with Kim,
a co-defendant, and/or Kristen violated his limited right under the First Amendment to send and
receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (recognizing that a
prisoner’s First Amendment right to send and receive mail is attenuated by the prison’s
competing right to adopt regulations and policies “reasonably related to legitimate penological
interests”) (citations omitted).
13

because Defendants are “the only two personnel at the facility with the authority to
authorize or restrict an inmate[’]s incoming and outgoing mail,” Defendants “were
personally aware of and involved in the violation.” Id. Plaintiff’s arguments do
not cure the Complaint’s deficiencies. And for purposes of the instant Motion, the
court may consider only those allegations contained in the Complaint and
documents of which it may take judicial notice. Thus, the court finds that the
Complaint fails to state § 1983 claims against Defendants in their individual
capacities and therefore those claims are DISMISSED with leave to amend.
D.

Leave to Amend
Because Plaintiff may be able to allege facts sufficient to state a

§ 1983 claim against Defendants in their individual capacities, the court grants
Plaintiff leave to amend his Complaint by October 20, 2017. Plaintiff must comply
with the Federal Rules of Civil Procedure and the Local Rules for the United States
District Court for the District of Hawaii if he amends his pleading. And the
amended complaint must be designated as a “First Amended Complaint.”
If Plaintiff chooses to file a First Amended Complaint, he must write
short, plain statements telling the court: (1) the treaty, constitutional right, or
statutory right he believes was violated; (2) the specific basis of this court’s
jurisdiction; (3) the name of the defendant who violated that right or statute;

14

(4) exactly what that defendant did or failed to do; (5) how the action or inaction of
that defendant is connected to the violation of a particular statute or Plaintiff’s
rights; and (6) what specific injury Plaintiff suffered because of that defendant’s
conduct.
An amended complaint generally supersedes prior complaints. See
Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). The
court will not refer to the original complaint or a prior amended complaint to make
an amended complaint complete, although it will not ignore contradictory
statements of fact between an original and amended complaint. Local Rule 10.3
requires that an amended complaint be complete in itself without reference to any
prior pleading. Defendants not named in the caption, and claims dismissed without
prejudice that are not realleged in an amended complaint may be deemed
voluntarily dismissed. See Lacey, 693 F.3d at 928 (“[C]laims dismissed with
prejudice [need not] . . . be repled in a[n] amended complaint to preserve them for
appeal . . . [b]ut . . . claims [that are] voluntarily dismissed [are] . . . waived if not
repled.”). And Plaintiff may include only one claim per count.
V. CONCLUSION
Based on the foregoing, Defendants’ Motion for Judgment on the
Pleadings is GRANTED, and Plaintiff’s Complaint is DISMISSED. Plaintiff’s
claims against Defendants in their official capacities and for injunctive relief are
15

DISMISSED without leave to amend, and his claims against Defendants in their
individual capacities are DISMISSED with leave to amend. Plaintiff may file a
First Amended Complaint, as set forth above, by October 20, 2017. Failure to
timely file a First Amended Complaint will result in dismissal of this action with
prejudice for failure to state a claim.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, September 18, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Isom v. Wagatsuma, et al., Civ. No. 16-00532 JMS-KJM, Order Granting Defendants’ Motion
for Judgment on the Pleadings and Dismissing the Complaint with Leave to Amend

16