Isom v. Wagatsuma et al
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF NO. 31 . Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 3/30/2018. (afc) WRITTEN ORDER follos hearing held 3/29/2018. Minutes of hearing: ECF no. 35 . COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TERENCE OLSEN ISOM,
CIV. NO. 16-00532 JMS-KJM
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT, ECF
NEAL WAGATSUMA; PAUL LEMKE,
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, ECF NO. 31
On October 20, 2017, then-Hawaii state inmate and pro se Plaintiff
Terence Olsen Isom (“Plaintiff”) filed a First Amended Complaint (“FAC”)
against Defendants Kauai Community Correctional Center (“KCCC”), Warden
Neal Wagatsuma (“Wagatsuma”), and Adult Correctional Officer (“ACO”) Paul
Lemke (“Lemke”) (collectively, “Defendants”) in their individual capacities,
alleging a claim pursuant to 42 U.S.C. § 1983 for violation of his First Amendment
right to “send and receive mail.” ECF No. 29. Before the court is Defendants’
unopposed Motion for Summary Judgment. ECF No. 31. For the reasons set forth
below, the Motion is GRANTED.
Upon his admission as a pretrial detainee to KCCC, Plaintiff was
given the Inmate Orientation Packet and correspondence list that are provided to
all inmates housed at KCCC. Defs.’ Concise Statement of Facts (“CSF”) ¶¶ 1, 3,
5-6.1 The Inmate Orientation Packet provides inmates with information about
KCCC’s correspondence policies and procedures and information about services
available to assist pretrial detainees with business and financial matters. Id. ¶ 2.
Inmates are required to submit for approval a list identifying the name,
relationship, and address of each person with whom the inmate wishes to
correspond while at KCCC. Id. ¶ 3. The KCCC correspondence list includes a
policies section specifying that “[f]ormer inmates, parolees, probationers and other
persons having pending charges against them will not be approved for
correspondence unless written permission is acquired from the Branch
Administrator.” Id. ¶ 4; Defs.’ Ex. D.
As alleged in the FAC, Plaintiff submitted the name of his girlfriend,
Kimberly Oakes, to be included on his approved correspondence list. FAC at 2.
Plaintiff failed to oppose the facts set forth in Defendants’ Concise Statement of Facts.
Thus, the court deems those facts admitted. See Fed. R. Civ. P. 56(e); Local Rule 56.1(g) (“For
purposes of a motion for summary judgment, material facts set forth in the moving party’s
concise statement will be deemed admitted unless controverted by a separate concise statement
of the opposing party.”).
On June 20, 2016, Wagatsuma approved Plaintiff’s request to correspond with
Kimberly, who had just been released from KCCC custody on June 17, 2016.
Defs.’ CSF ¶ 7. Thereafter, a KCCC record clerk informed Wagatsuma and
Lemke that Plaintiff and Kimberly were codefendants in a pending criminal action
and therefore, Plaintiff was not permitted to correspond with Kimberly without
written approval from Wagatsuma. Id. ¶ 8.
Lemke then retrieved a letter Plaintiff wrote to Kimberly and
submitted for mailing. Id. ¶ 9. Lemke returned the letter to Plaintiff indicating that
permission to correspond with Kimberly was denied because she was a
codefendant and former inmate and therefore, in order to correspond with her,
Plaintiff needed written permission from the Branch Administrator. Id. Plaintiff
did not submit a new request to correspond with Kimberly. Id. ¶ 10.
Plaintiff then submitted a request to correspond with Kristen Oakes.
Id. ¶ 11. In mid-July 2016, Lemke reviewed incoming mail from Kristen, and
mistakenly thinking the letter was from Kimberly, marked it “Return to Sender,”
informed Plaintiff, and placed the letter in the outgoing mail. Id. ¶ 12. Plaintiff
explained that Kristen was not a codefendant, and on July 15, 2016, Lemke opened
the envelope for screening. Id. ¶¶ 13-14. Lemke determined that the envelope
contained a letter written by and pictures of Kimberly. Id. ¶ 14. Lemke took the
letter to Plaintiff, who admitted that it appeared to have been dictated to Kristen by
Kimberly. Id. ¶ 15. Lemke told Plaintiff that he could not correspond with
Kimberly through Kristen or another party, took back the letter, and again placed it
in the outgoing mail. Id.
On October 13, 2016, Wagatsuma received a letter from the Kauai
Drug Court informing him that the court had directed Kimberly to have no contact
with Plaintiff while in the Drug Court program. Id. ¶ 17. Wagatsuma showed that
letter to Plaintiff and explained that he would not allow Plaintiff to correspond with
Kimberly until permitted by the Kauai Drug Court. Id. ¶ 18. Plaintiff exhausted
the grievance process with respect to his inability to correspond with both
Kimberly and Kristen. FAC at 2-3.
Plaintiff filed his initial Complaint on September 26, 2016. ECF No.
1. 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 a Motion for Judgment on the Pleadings. ECF No. 22.
On September 18, 2017, the court granted the Motion and dismissed the Complaint
with leave to amend. ECF No. 28. On October 20, 2017, Plaintiff filed the FAC.
ECF No. 29.
As alleged in the FAC, because Defendants denied Plaintiff
permission to correspond with Kimberly or Kristen, Plaintiff was unable to give
Kimberly “power of attorney so that she could handle [Plaintiff’s] financial
matters.” FAC at 3. Plaintiff’s inability to convey power of attorney to Kimberly
resulted in “several thousand dollars of debt and damage to [Plaintiff’s] credit.” Id.
In addition, Kimberly was unable to get a key made to recover Plaintiff’s vehicle
from a public parking area, resulting in the vehicle being vandalized and all of
Plaintiff’s personal belongings being stolen or destroyed. Id. This, and his lack of
contact with Kimberly, caused Plaintiff to suffer mentally and emotionally. Id.
On January 31, 2018, Defendants filed the instant Motion for
Summary Judgment. ECF No. 31. The court issued a minute order setting this
matter for hearing on March 29, 2018, and setting deadlines of March 1, 2018 for
Plaintiff’s Opposition, and March 8, 2018 for Defendants’ Reply. ECF No. 33.
The minute order and a Notice to Pro Se Litigants (informing Plaintiff of his
obligation in responding to the Motion) were served on Plaintiff at his last known
address: 45-027 Namoku Street, Kaneohe, HI 96744. Id.
Plaintiff failed to file an Opposition. On March 15, 2018, the court
ordered Plaintiff to respond by March 22, 2018 “stating whether he intends to
oppose the Motion for Summary Judgment and if so, why he failed to meet the
March 1, 2018 deadline.” ECF No. 34. Plaintiff did not respond. None of the
mail from the court was returned as undeliverable. Plaintiff failed to appear for the
March 29, 2017 hearing. Counsel for Defendants had no information regarding
Plaintiff’s current address.2
III. STANDARDS OF REVIEW
Summary Judgment Standard
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(c); Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir.
2011). 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 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).
The moving party “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 In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
(9th Cir. 2010). Once met, the burden shifts to the non-moving party to “go
The court also made an inquiry of the State of Hawaii Department of Public Safety. It,
too, had no information on Plaintiff’s current address.
beyond the pleadings” and designate specific facts in the record and/or admissible
discovery materials showing that there is a genuine issue for trial. Celotex Corp.,
477 U.S. at 323 (citing Fed. R. Civ. P. 56(c)); see also Norse v. City of Santa Cruz,
629 F.3d 966, 973 (9th Cir. 2010) (en banc) (“Rule 56 requires the parties to set
out facts they will be able to prove at trial.”).
When considering a motion for summary judgment, the court must
draw “all reasonable inferences supported by the evidence in favor of the
nonmoving party.” Walls v. Cent. Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th
Cir. 2011). The court may not grant summary judgment solely because a party
fails to oppose the motion. Cristobal v. Siegal, 26 F.3d 1488, 1494-95 & n.4 (9th
Cir. 1994); Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003). But, when
a party fails to challenge the facts asserted by the moving party, the non-moving
party is deemed to have admitted the validity of those facts. See Beard v. Banks,
548 U.S. 521, 527 (2006) (citing Fed. R. Civ. P. 56(e)); Fed. R. Civ. P. 56(e);
Local Rule 56.1(g).
Qualified Immunity Standard
Government officials are entitled to qualified immunity from civil
damages unless their conduct violates clearly established statutory or constitutional
rights. Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001). When considering a
qualified immunity defense, the court must decide: (1) whether the facts alleged,
taken in the light most favorable to the plaintiff, demonstrate that the defendant’s
conduct violated a statutory or constitutional right; and (2) whether the right at
issue was “clearly established.” Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 236-42 (2009).
This sequence of review is not mandatory. Pearson, 555 U.S. at 236. If a
plaintiff’s allegations do not make out a statutory or constitutional violation, “there
is no necessity for further inquiries concerning qualified immunity.” Saucier, 533
U.S. at 201. Or, if the court determines that the right at issue was not clearly
established at the time of the defendant’s alleged misconduct, the court may end
the qualified immunity inquiry at that point without determining whether the
allegations make out a statutory or constitutional violation. Pearson, 555 U.S. at
“A [g]overnment official’s conduct violates clearly established law
when, at the time of the challenged conduct, ‘[t]he contours of [a] right [are]
sufficiently clear’ that every ‘reasonable official would have understood that what
he is doing violates that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). That is, “existing
precedent must have placed the statutory or constitutional question beyond
debate.” Id. “It is not enough that the rule is suggested by then-existing precedent.
The precedent must be clear enough that every reasonable official would interpret
it to establish the particular rule the plaintiff seeks to apply.” District of Columbia
v. Wesby, 138 S. Ct. 577, 590 (2018).
The inquiry “must be undertaken in light of the specific context of the
[particular] case, not as a broad general proposition[.]” Saucier, 533 U.S. at 201.
“Officers are entitled to qualified immunity if they reasonably misapprehend how
the law would govern in their particular situation.” Conn v. City of Reno, 591 F.3d
1081, 1102 (9th Cir. 2010), vacated on other grounds, 563 U.S. 915
(2011), reinstated in relevant part, 658 F.3d 897 (9th Cir. 2011). Because
qualified immunity is an affirmative defense, the burden of proof initially lies with
the official asserting the defense. Harlow v. Fitzgerald, 457 U.S. 800, 812 (1982).
Defendants argue that Plaintiff’s First Amendment rights were not
violated and, in any event, that they are entitled to qualified immunity. Because
the court agrees that the Defendants are entitled to qualified immunity, it does not
address whether Plaintiff’s First Amendment rights were violated.
Inmates have a protected First Amendment right to send and receive
mail. Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). “[T]he decision to censor
or withhold delivery of a particular letter must be accompanied by minimum
procedural safeguards.” Procunier v. Martinez, 416 U.S. 396, 417 (1974),
overruled on other grounds by Thornburgh v. Abbott, 490 U.S. at 401 (1989). But
this First Amendment right is not unlimited. Prisons may issue regulations
restricting a prisoner’s non-legal mail provided they are “reasonably related to
legitimate penological interests.” Thornburgh, 490 U.S. at 409 (quoting Turner v.
Safley, 482 U.S. 78, 89 (1987)).
Applying the qualified immunity test, the Supreme Court has
reminded lower courts, many times, “not to define clearly established law at a high
level of generality.” al-Kidd, 563 U.S. at 742. That is, because the ultimate
question is whether the particular conduct alleged to be unconstitutional is clearly
established, the inquiry must be focused on the specific context of the case. See
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
Here, the specific context of Plaintiff’s First Amendment claim
concerns whether KCCC could restrict Plaintiff’s correspondence with a
codefendant in a pending criminal case, and with that codefendant’s sister, acting
as a conduit for the codefendant. When Plaintiff filed his Complaint, there was no
such clearly established law. In fact, federal courts have long upheld restrictions
on inmate correspondence if reasonably related to legitimate penological interests.
See Turner, 482 U.S. at 89 (upholding prohibition on correspondence between
institutions as logically connected to legitimate security concerns). And the court
has found no caselaw that would provide KCCC officials with any notice that the
specific restrictions placed on Plaintiff violated the First Amendment. Stated
differently, reasonable officials at KCCC would not have understood that they
were violating Plaintiff’s First Amendment rights. As such, the Defendants are
entitled to qualified immunity.
Based on the foregoing, Defendants’ Motion for Summary Judgment
is GRANTED. The Clerk of Court is DIRECTED to enter judgment and close this
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 30, 2018.
/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 Summary Judgment, ECF No. 31
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