Gatewood v. Harrington et al

Filing 168

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT APRIL MCNEIL'S MOTION FOR SUMMARY JUDGMENT re: 122 . Excerpt of conclusion:"The Motion is GRANTED as to the portion of Plaintiff's retaliat ion claim based on his placement in solitary confinement and his misconduct hearing. The Motion is DENIED as to the portion of Plaintiff's retaliation claim based on McNeil's alleged falsification of the incident report dated September 25, 2015." Signed by JUDGE LESLIE E. KOBAYASHI on 11/29/2018. (afc)COURTS CERTIFICATE of Service - Non-Registered CM/ECF Participants will be served on November 30, 2018 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
JOHN LEON GATEWOOD,

)
)
)
Plaintiff,
)
)
vs.
)
APRIL McNEIL; TUI FAATEA,
)
)
Defendants.
)
_____________________________ )

CIVIL 17-00090 LEK-KJM

ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT APRIL MCNEIL’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant April McNeil’s (“McNeil”)
Motion for Summary Judgment (“Motion”), filed on June 18, 2018.
[Dkt. no. 122.]

Pro se Plaintiff John Leon Gatewood

(“Plaintiff”) filed two memoranda in opposition on July 10, 2018,
and McNeil filed her reply memorandum on July 27, 2018.
nos. 145 (“First Opp.”), 146 (“Second Opp.”), 154.]

[Dkt.

The Court

finds this matter suitable for disposition without a hearing
pursuant to Rule LR7.2(d) of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
Rules”).

McNeil’s Motion for Summary Judgment is hereby granted

in part and denied in part for the reasons set forth below.
BACKGROUND
Plaintiff filed his original complaint on March 2,
2017, and he filed an amended complaint on April 24, 2017.
nos. 1, 8.]

[Dkt.

On April 30, 2018, Plaintiff filed his Prisoner

Civil Rights Complaint - Second Amended Complaint (“Second
Amended Complaint”), alleging a retaliation claim against McNeil
and Defendant Adult Correctional Officer (“ACO”) Faatea
(“Faatea”).

[Dkt. no. 102.]

This claim has been construed as a

42 U.S.C. § 1983 claim alleging a violation of Plaintiff’s First
Amendment rights.

See Order Dismissing Complaint in Part and

Denying Assistance of Counsel, filed 4/11/17 (dkt. no. 6)
(“4/11/17 Order”), at 6, 12-13 (discussing retaliation claim in
Plaintiff’s original complaint).1
Plaintiff’s claim arises from an altercation between
him and Faatea on September 18, 2015 (“Incident”), when Plaintiff
was an inmate at the Waiawa Correctional Facility (“WCF”).
[Second Amended Complaint at pg. 5.]

Plaintiff alleges Faatea

struck and pushed Plaintiff, but Plaintiff was sent to solitary
confinement and was subjected to unfair disciplinary proceedings.
[Id.]

At the time of the Incident, April McNeil was a Sergeant

at WCF.

[Separate and Concise Statement of Facts in Supp. of

Def. April McNeil’s Motion for Summary Judgment (“McNeil CSOF”),
filed 6/18/18 (dkt. no. 123), Decl. of April McNeil (“McNeil
Decl.”) at ¶¶ 2-3.2]

Plaintiff alleges he informed McNeil and

the WCF staff that he would be pressing charges against Faatea

1

The 4/11/17 Order is also available at 2017 WL 1356319.

2

McNeil retired on November 1, 2015.

¶ 4.]
2

[McNeil Decl. at

for striking and pushing him.
pg. 5.]

[Second Amended Complaint at

Plaintiff alleges McNeil retaliated against Plaintiff,

and she and Faatea prepared “falsified documents” to ensure that
Plaintiff’s disciplinary proceedings were “unfair.”

[Id.]

Faatea submitted multiple incident reports all dated
September 18, 2015.

[McNeil CSOF, Decl. of Teresa Miike (“Miike

Decl.”),3 Exh. 1 at 10008-09 (first 9/18/15 incident report),
10010-11 (second 9/18/15 incident report); 10016-17 (third
9/18/15 incident report) (collectively “Faatea Incident
Reports”).4]

McNeil received Faatea’s incident report on

September 19, 2015.5

[Miike Decl., Exh. 1 at 10014 (Memo from

McNeil to Lieutenant Nalei Cox (“Lieutenant Cox”) dated
9/19/15).]

According to the Faatea Incident Reports, Plaintiff

arrived at the Health Care Unit (“HCU”) at WCF complaining of an
infection in his mouth.

Faatea explained to Plaintiff that he

was on the dental clinic list, and ordered him to leave the HCU.
Plaintiff refused to leave, spoke with other inmates during the

3

Teresa Miike is the WCF custodian of records.
Decl. at ¶¶ 4-5.]

[Miike

4

Exhibit 1 to the Motion, [dkt. no. 122-1,] is a
nonconsecutively paginated document that is comprised of Bates
numbers 10001-29, 10032-33, and 10035-36. The Miike Declaration
authenticates the document, although she does not identify it as
“Exhibit 1.” See Miike Decl. at ¶ 6.
5

McNeil does not state which version of Faatea’s September
18, 2015 report she received.
3

altercation, and stared at Faatea threateningly.

[Miike Decl.,

Exh. 1 at 10008-09 (first 9/18/15 incident report).]

Plaintiff

was later charged with: 1) using force or threatening a
correctional worker; 2) refusing to obey an order; 3) being in an
unauthorized area; 4) lying or providing false statements; and
5) unauthorized contact with the public or other inmates.

[Miike

Decl., Exh. 1 at 10012 (Memo dated 9/19/15 from Lieutenant Cox to
Captain Sean Ornellas (“Captain Ornellas”)).]
On September 18, 2015, McNeil informed Captain Ornellas
of the Incident.

[Id.]

On September 19, 2015, McNeil provided a

copy of Faatea’s incident report to Captain Ornellas, and
Plaintiff was “locked down” that same day.

[Id. at 10014 (Memo

dated 9/19/15 from McNeil to Captain Ornellas regarding the
Incident and Plaintiff’s discipline).]

Captain Ornellas then

instructed McNeil to investigate the Incident.

[Id. at 10015

(memo from Lieutenant Cox to Captain Ornellas regarding assigning
McNeil to investigation).]

On September 22, 2015 and

September 24, 2015, McNeil interviewed Plaintiff about the
Incident.

[Id. at 10020-21 (WCF documentation of Plaintiff’s

9/22/15 and 9/24/15 interviews).]

McNeil also interviewed inmate

Cory Anderson on September 22, 2015, and obtained his written
statement.

[Id. at 10022 (Anderson written statement dated

9/22/15), 10023-24 (WCF documentation of Anderson’s 9/22/15
interview).]

Finally, McNeil interviewed Faatea on September 24,
4

2015.

[Id. at 10025-26 (WCF documentation of Faatea’s 9/24/15

interview).]

McNeil prepared and submitted her investigative

report to Lieutenant Cox on September 25, 2015.

[Id. at 10001-07

(report signed by McNeil on 9/25/15 (“McNeil Report”)).]
On October 9, 2015, a Facility Adjustment hearing was
held, with Lieutenant David Sayurin (“Lieutenant Sayurin”)
presiding as the Facility Adjustment Committee Chairman.6

[Id.

at 10027-29 (WCF Facility Adjustment Hearing Processing Form).]
Plaintiff was found guilty of charges one through four, but not
guilty of charge five.

He was sent to solitary confinement for a

total of fifty days, with twenty-one days of credit for prehearing detention.

[Id. at 10029.]

Plaintiff filed a grievance.7

On October 27, 2015,

[McNeil CSOF, Decl. of

Charles Laux (“Laux Decl.”) at ¶¶ 11-12 (noting Plaintiff filed
five grievances between 2003 and 2015, one each on September 11

6

The “Facility Adjustment Hearing” is also referred to as
the “misconduct hearing” (hereinafter “misconduct hearing”).
[Mem. in Supp. of Motion at 5.]
7

Separately, on February 8, 2016, Plaintiff initiated an
action with the Circuit Court of the First Circuit, State of
Hawai`i in Gatewood v. State of Hawai`i, et al., Civil No. 16-10128-01 KKH, alleging assault, in violation of Haw. Rev. Stat.
§ 707-712, unlawful imprisonment, in violation of Haw. Rev. Stat.
§ 707-721, and a violation of “HRS 108-856” (“State Action”).
[Second Amended Complaint at pg. 3.]
5

and October 1, 2003 and October 9, November 22, and November 25,
2015).8]
McNeil argues there is no genuine issue of material
fact that she: had no knowledge of Plaintiff’s intent to engage
in a protected activity; and accordingly, had no retaliatory
intent in assisting with the resulting investigation and
misconduct hearing that followed the Incident.

Further, McNeil

asserts Plaintiff cannot show that: she made false statements in
the McNeil Report because of Plaintiff’s intent to engage in a
protected activity, i.e., filing a grievance against Faatea; or,
even if the McNeil Report contained false statements, Plaintiff
was placed in solitary confinement because of those statements.
McNeil points out that no document, including Plaintiff’s own
contemporaneous handwritten statement, demonstrates that he
intended to make a claim.

[Mem. in Supp. of Motion at 3.]
DISCUSSION

I.

Special Considerations for a Pro Se Litigant
McNeil argues Plaintiff’s two memoranda in opposition,

fail to show there is a genuine issue of material fact.

8

[Reply

Charles Laux is an Inmate Grievance Specialist at Halawa
Correctional Facility. [Laux Decl. at ¶ 1.] His office
processes WCF grievances because WCF does not have a facility
grievance officer. [Id. at ¶ 8.] The Laux Declaration does not
describe the substance of Plaintiff’s filed grievances, nor does
McNeil attach any of the grievances as an Exhibit in support of
the Motion.
6

at 2.]

In a footnote, McNeil argues: neither the First

Opposition nor the Second Opposition include any declarations or
admissible evidence; both fail to comply with the district
court’s Local Rules requiring a separate concise statement; and
thus, should be disregarded for those reasons.

[Id. at 2 n.1.]

With regard to Plaintiff’s evidence, Plaintiff’s First
Opposition and Second Opposition both include his declaration
“under the Penalty of Perjury that the foregoing is true and
correct,” pursuant to 28 U.S.C. § 1746.9

9

[First Opp. at 12;

28 U.S.C. § 1746 provides, in pertinent part:
Wherever, under any law of the United States or
under any rule, regulation, order, or requirement
made pursuant to law, any matter is required or
permitted to be supported, evidenced, established,
or proved by the sworn declaration, verification,
certificate, statement, oath, or affidavit, in
writing of the person making the same (other than
a deposition, or an oath of office, or an oath
required to be taken before a specified official
other than a notary public), such matter may, with
like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration,
certificate, verification, or statement, in
writing of such person which is subscribed by him,
as true under penalty of perjury, and dated, in
substantially the following form:
. . . .
(2) If executed within the United States, its
territories, possessions, or commonwealths:
“I declare (or certify, verify, or state)
under penalty of perjury that the foregoing
is true and correct. Executed on (date).
(Signature)”.
7

Second Opp. at 9.10]

An unsworn statement made under penalty of

perjury is admissible evidence in a motion for summary judgment.
See § 1746; Shepard v. Quillen, 840 F.3d 686, 687 n.1 (9th Cir.
2016) (citations omitted).
Second, the Court notes that pro se filings are “held
to less stringent standards than those of their legal
counterparts.”

See Welsh v. Wilcox Mem’l Hosp., Civil No. 12-

00609, 2012 WL 6047745, at *1 (D. Hawai`i Dec. 4, 2012) (citing
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); Jackson
v. Carey, 353 F.3d 750, 757 (9th Cir. 2012)).

Although not

formatted according to Local Rule 56.1, Plaintiff essentially
identified the disputed facts and cited with particularity to the
supporting evidence in the record.

Accordingly, the Court will

consider Plaintiff’s arguments and exhibits in ruling on McNeil’s
Motion.
II.

Plaintiff’s Retaliation Claim
With regard to a prisoner’s claim for retaliation in

violation of his First Amendment, the plaintiff must establish:
“(1) [a]n assertion that a state actor took some adverse action
against an inmate (2) because of (3) that prisoner’s protected

10

Plaintiff’s Second Opposition consists of multiple
documents that are not consecutively paginated. All citations to
the Second Opposition and sections therein refer to the page
numbers assigned by the district court’s electronic case filing
system.
8

conduct, and that such action (4) chilled the inmate’s exercise
of his First Amendment rights, and (5) the action did not
reasonably advance a legitimate correctional goal.”

Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (citations
omitted).
McNeil contends, for the purpose of the Motion, that
Plaintiff’s solitary confinement is the adverse action, and that
the third, fourth, and fifth elements of a claim for retaliation
are satisfied.

[Mem. in Supp. of Motion at 9.]

Thus, the Court

will not address the merits of the first, third, fourth, and
fifth elements of Plaintiff’s retaliation claim and will only
address causation.

McNeil argues she is entitled to summary

judgment since Plaintiff cannot present any evidence to show that
McNeil had retaliatory motive.

However, it is unclear from the

Second Amended Complaint whether Plaintiff’s retaliation claim is
based on: his initial placement in solitary confinement on
September 19, 2015, immediately following the Incident; the
allegedly false McNeil Report and Faatea Incident Reports; the
outcome of Plaintiff’s disciplinary proceedings; or all of the
foregoing.

Falsification of a report is deemed a retaliatory act

in and of itself.

See Austin v. Terhune, 367 F.3d 1167, 1171

(9th Cir. 2004) (recognizing § 1983 retaliation claim where the
prisoner alleged a correctional officer filed a false report in
retaliation for the prisoner reporting officer misconduct); Hines
9

v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (prison guard’s false
accusation of a prisoner’s rule violation made after the prisoner
used the grievance system deemed retaliatory).

The Court

liberally construes Plaintiff’s Second Amended Complaint as
alleging retaliatory acts based on Plaintiff’s initial placement
in solitary confinement, the alleged false reporting, and
Plaintiff’s misconduct hearing resulting in fifty days in
solitary confinement.

See, e.g., Eldridge v. Block, 832 F.2d

1132, 1137 (9th Cir. 1987) (“The Supreme Court has instructed the
federal courts to liberally construe the ‘inartful pleading’ of
pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365,
102 S. Ct. 700, 701, 70 L.Ed. 2d 551 (1982) (per curiam))).
In order for Plaintiff’s § 1983 retaliation claim to
survive summary judgment, he must “put forth evidence of
retaliatory motive, that, taken in the light most favorable to
him, presents a genuine issue of material fact.”
Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003).

See Bruce v.

To raise a triable

issue as to a defendant’s motive, the plaintiff must present
“‘either direct evidence of retaliatory motive or at least one of
the three general types of circumstantial evidence [of that
motive].’”

McCollum v. California Dept. of Corr. & Rehab., 647

F.3d 870, 882 (9th Cir. 2011) (quoting Allen v. Iranon, 283 F.3d
1070, 1077 (9th Cir. 2002)).

If there is no direct evidence, the

plaintiff must “present circumstantial evidence of motive, which
10

usually includes: ‘(1) proximity in time between protected speech
and the alleged retaliation; (2) [that] the [defendant] expressed
opposition to the speech; [or] (3) other evidence that the
reasons proffered by the [defendant] for the adverse . . . action
were false and pretextual.’”
1077).

Id. (quoting Allen, 283 F.3d at

Since Plaintiff has not provided direct evidence of

McNeil’s motive, the Court examines whether there is
circumstantial evidence as to each of the alleged retaliatory
acts.

A.

McNeil Report
First, there is a temporal closeness between

Plaintiff’s complaint to HPD and the McNeil Report that may
support an inference of retaliatory motive.

HPD arrived at WCF

on September 21, 2015 to investigate Plaintiff’s complaint, only
four days before the conclusion of the McNeil Report.

See First

Opp. at 2 (noting HPD investigation at WCF on 9/21/15); Miike
Decl., Exh. 1 at 10007 (page seven of the McNeil Report dated
9/25/15).

In the Motion, McNeil argues there is no temporal

proximity since it was not until October 27, 2015 that Plaintiff
actually filed his grievance against Faatea.

McNeil also submits

testimony that she does not recall nor does she have any
knowledge of Plaintiff’s intent to file a grievance against
Faatea.

[McNeil Decl. at ¶¶ 11-12.]
11

McNeil points to

Plaintiff’s failure to file a report against Faatea with HPD
during their September 21, 2015 investigation, and also notes
Plaintiff never mentioned filing a grievance in any of his
interviews or written statements regarding the Incident.

McNeil

contends Plaintiff only called HPD to retaliate against WCF for
placing Plaintiff in solitary confinement.
However, Plaintiff has submitted testimony that McNeil
knew of Plaintiff’s complaint and request to press charges
against Faatea because HPD came to investigate Plaintiff’s report
of “inappropriate touching on an inmate by [Faatea].”
Opp. at 2.]

[First

Plaintiff argues that, as the investigating officer,

McNeil should have known before concluding her investigation and
finalizing the McNeil Report that Plaintiff had requested to
press charges against Faatea.

[Id.]

Moreover, Plaintiff asserts

that, on September 24, 2015 as McNeil interviewed Plaintiff in
the course of her investigation, McNeil told him that he would
have been released from solitary confinement earlier, had he not
contacted HPD.

[Id. at 3, 7.]

There is conflicting testimony as to whether McNeil
knew of Plaintiff’s intent to file a grievance, and the
resolution of that conflict would require credibility
determinations, which are inappropriate on a motion for summary
judgment.

See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083

(9th Cir. 2011)

(“[C]redibility determinations, the weighing of
12

the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” (citation and
quotation marks omitted)).

Further, McNeil has not produced

evidence to support her argument that the HPD call was not made
under the auspices of the First Amendment.

See Nissan Fire &

Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.
2000) (movant bears the burden of proof and persuasion on a
motion for summary judgment).
“Where an adverse action occurs shortly after the
protected conduct, [the Ninth Circuit] has held that the timing
creates an inference of retaliatory motive.”

Slice v. Ferriter,

448 F. App’x 725, 726 (9th Cir. 2011) (some citations omitted)
(citing Bruce v. Ylst, 351 F.3d 1283, 1288 (9th Cir. 2003)).

A

trier of fact may reasonably conclude that the timing of the HPD
investigation - four days before conclusion of the McNeil Report
- is circumstantial evidence of McNeil’s retaliatory motive.
Second, there is some evidence that McNeil expressed
opposition to Plaintiff’s protected activity.

Plaintiff asserts

McNeil told Plaintiff he would have been released from solitary
confinement earlier had he not filed a complaint with HPD.11
[First Opp. at 3.]

The Court also considers the alleged

11

McNeil denies that she ever made this statement. [Reply
at 3.] Thus, there is a dispute of material fact that precludes
summary judgment. See Bravo, 665 F.3d at 1083.
13

falsification of the McNeil Report, if true, to be possible
evidence of McNeil’s opposition to Plaintiff’s engaging in a
protected activity.

Thus, the second category of circumstantial

evidence of a retaliatory motive is present.

See McCollum, 647

F.3d at 882 (citation omitted).
Third, McNeil argues the McNeil Report was in no way
false or pretextual and was based on a compilation of witness
statements and facts.12

The Ninth Circuit applies the “some

evidence” standard in reviewing a prisoner’s complaint that he
or she was falsely accused of a rules violation.

See Hines v.

Gomez, 108 F.3d 265, 268 (9th Cir. 1997).
In Superintendent v. Hill, 472 U.S. 445, 105 S.
Ct. 2768, 86 L. Ed. 2d 356 (1985), the [United
States] Supreme Court considered the deference
courts must afford a prison disciplinary board’s
finding that a prisoner committed an infraction
where the punishment is the loss of good time
credits. Hill held that if there is even “some
evidence” to support the prison’s disciplinary
decision, the requirements of due process are

12

McNeil attached the Declaration of Patsy M. Takemura and
Plaintiff’s deposition transcript dated June 27, 2018 to her
Reply. [Reply at 7, Decl. of Patsy M. Takemura (“Takemura Reply
Decl.”) Exh. 4 (excerpts of trans. of Pltf.’s 6/27/18 depo.
(“Plaintiff Depo.”)) at 61.] McNeil argues the only portion of
the McNeil Report that Plaintiff testified he took issue with was
a handwritten date of September 24, 2015 at 10021, which had the
number “4” written over multiple times even though he had dated
the document September 22, 2015. See Miike Decl., Exh. 1 at
10021 (Plaintiff’s 9/24/15 interview response). Since McNeil did
not seek leave of Court to file either the declaration or the
additional exhibit after filing her concise statement, the Court
will not consider the submitted materials. See Local Rule
LR56.1(f)&(h).
14

satisfied.
2773–74.
Id.

472 U.S. at 455, 105 S. Ct. at

However, this rule only applies to prison disciplinary board

findings, and not to correctional officers.

Id. at 269.

Since

McNeil is not a hearings officer, and she admits she did not have
authority to influence the misconduct hearing, [McNeil Decl. at
¶ 19,] the McNeil Report is not treated with the same deferential
standard as a hearings officer’s decision.

Further, the McNeil

Report appears to contain a discrepancy between Plaintiff’s
statements and Faatea’s recollection of the events with regard to
Plaintiff elbowing Faatea, which Faatea only added during her
second interview on September 24, 2015, but omitted in her first
two written statements.

[Miike Decl., Exh. 1 at 10008-11 (Faatea

incident report), 10025-26 (WCF documentation of Faatea’s 9/24/15
interview).]

Mr. Anderson’s statement and interview do not

corroborate Faatea’s claim that Plaintiff elbowed her.

[Id. at

10022 (Anderson statement), 10023-24 (WCF documentation of
Anderson’s 9/22/15 interview).]

At the very least, there is a

disputed issue of material fact as to whether the McNeil Report
was accurate, and if there was a pretextual reason related to
Plaintiff’s intent to file a grievance or his complaint to HPD.
Accordingly, the Court concludes there are triable issues of fact
as to McNeil’s retaliatory motive with regard to the McNeil

15

Report to survive summary judgment, and denies summary judgment
as to this portion of Plaintiff’s § 1983 retaliation claim.
B.

Solitary Confinement
With regard to Plaintiff’s initial placement in

solitary confinement on September 19, 2015, Plaintiff has not
offered any testimony or evidence to create a disputed issue of
material fact with regard to McNeil’s testimony that she had no
knowledge of Plaintiff’s intent to file a grievance against
Faatea.

Plaintiff only disputes that McNeil knew of his intent

to engage in a protected activity upon HPD’s September 21, 2015
investigation at WCF, which preceded the McNeil Report and
Plaintiff’s misconduct hearing.

In order to sustain a

retaliation claim, Plaintiff must be able to prove that McNeil
acted “because of” Plaintiff’s protected conduct.
408 F.3d

See Rhodes,

at 567; see Wood v. Yordy, 753 F.3d 899, 905 (9th Cir.

2014) (mere speculation that defendant acted out of retaliation
without evidence of prior knowledge of protected activity not
sufficient).

There is no evidence in the record to create a

disputed issue as to McNeil’s knowledge of Plaintiff’s intent to
file a grievance, before he was put in “lock down” on September
19, 2015.

Accordingly, the Court grants summary judgment to

McNeil as to the portion of Plaintiff’s claim relating to his
initial placement in solitary confinement.

See Fed. R. Civ. P.

56(a) (“The court shall grant summary judgment if the movant
16

shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”).
C.

Misconduct Hearing
Further, there is no evidence in the record to create a

triable issue as to causation with regard to either Plaintiff’s
misconduct hearing, or its outcome.

McNeil argues that, even if

the McNeil Report had been falsified, she was not the ultimate
cause of the outcome of Plaintiff’s misconduct hearing which was
conducted by Lieutenant Sayurin.

This Court agrees.

“The

inquiry into causation must be individualized and focus on the
duties and responsibilities of each individual defendant whose
acts or omissions are alleged to have caused a constitutional
deprivation.”

Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)

(some citations omitted) (citing Rizzo v. Goode, 423 U.S. 362,
370-71, 375-77, 96 S. Ct. 598, 603-04, 606-07, 46 L. Ed. 2d. 561
(1976)).
McNeil submitted the Declaration of Lieutenant Sayurin,
who states he was the sole committee member at Plaintiff’s
misconduct hearing.

[McNeil CSOF, Decl. of David Sayurin

(“Sayurin Decl.”) at ¶ 9.]

Lieutenant Sayurin asserts he

reviewed McNeil’s report, but also spoke to both Plaintiff and
Faatea several times in order to “hear directly from them what
happened” and to clarify portions of the McNeil Report.
Decl. at ¶¶ 10-11.]

[Sayurin

Lieutenant Sayurin did not have reason to
17

believe the McNeil Report was false because the statements were
consistent with Lieutenant Sayurin’s witness interviews.
[Sayurin Decl. at ¶ 12.]

Further, Lieutenant Sayurin stated any

errors or false statements in the McNeil Report would not have
affected his decision since he made an independent assessment
based on his own interviews, Plaintiff’s statements, and his
review of the facts of the allegations.

[Sayurin Decl. at ¶ 13.]

Plaintiff has not challenged or submitted any evidence
to create a disputed issue as to McNeil’s assertion - and
Lieutenant Sayurin’s Declaration - that it was Lieutenant
Sayurin’s sole duty to preside over the misconduct hearing and
arrive at his independent conclusion.

Plaintiff argues

Lieutenant Sayurin found Plaintiff guilty of the exact offenses
identified in the McNeil Report;13 however, this does not create
a disputed issue of fact where Plaintiff has not produced any
admissible evidence to challenge Lieutenant Sayurin’s statements.
Plaintiff has demonstrated that he understands that, on a motion
for summary judgment, he must identify the disputed facts and
point to evidence supporting his position, and has done so in
both his First Opposition and Second Opposition.

13

Accordingly,

Contrary to Plaintiff’s arguments, Lieutenant Sayurin did
not find Plaintiff guilty of “Chg.#5: 13.03 4.0.4 a.8 (19)
Unauthorized contacts with the public or other inmates.” [Miike
Decl., Exh. 1 at 10036 (Notice of Report of Misconduct Hearing
dated 10/9/15).] Lieutenant Sayurin noted “[t]here is
insufficient evidence to support the charges.” [Id.]
18

there are no disputed issues of fact that Lieutenant Sayurin:
presided over Plaintiff’s misconduct hearing alone; independently
interviewed Plaintiff and Faatea; and made an independent
decision as to Plaintiff’s guilt.

Thus, McNeil has met her

burden in establishing that, even if she had a retaliatory
motive, she was not the cause of the outcome of Plaintiff’s
misconduct hearing, which was handled independently by
Lieutenant Sayurin.
III. Other Issues
The First Opposition contains a separate section
entitled “Confidential Documents Protected for Non-Disclosure
Order.”

[First Opp. at 10.]

Plaintiff identified thirteen

different documents that he asked the Court to review in support
of his memoranda in opposition.

[Id. (citing DPS Nos. 0005,

0014-17, 0047-50, 0052, 0055-57, 0076, 0092).]

Plaintiff offers

no other information with regard to what evidence the documents
might contain, or why he was unable to attach it to his memoranda
in opposition.
The Court considers the magistrate judge’s prior order
granting in part and denying in part Plaintiff’s motion to compel
documents, and approving DPS’s protective order of its
confidential records produced in this matter.

[Order Granting

Non-Party Department of Public Safety’s [Proposed] Protective
Order, Instructions Regarding Subpoenas Filed on November 6, 2017
19

and Order Granting in Part and Denying in Plaint Plaintiff’s
Motion to Compel Discovery Filed on January 22, 2018; and In
Camera Review, filed 6/13/18 (dkt. no. 118) (“6/13/18 Order”).]
The 6/13/18 Order stated the magistrate judge would perform an in
camera review to determine whether DPS’s documents were
discoverable, then, if any confidential records could be
produced, Plaintiff would be allowed to access the records upon
request.

[Id. at ¶¶ 3-4.]

Pursuant to the 6/13/18 Order, the

magistrate judge conducted an in camera review of the DPS
records, and ordered production of: “(i) redacted DPS 0001-DPS
0201; (ii) DPS’ production log; and (iii) DPS’ privilege log
pursuant to the [6/13/18 Order].”
no. 126) (“6/19/18 Minutes”).]

[Minutes, filed 6/19/18 (dkt.

Accordingly, the records

identified by Plaintiff appear to have been available to him upon
request, pursuant to the 6/13/18 Order and 6/19/18 Minutes.

The

Court will not excuse Plaintiff’s failure to attach records in
support of his memoranda in opposition, especially where there is
no indication what the cited records contain, or what specific
circumstances made it impossible for Plaintiff to access the
documents.
CONCLUSION
On the basis of the foregoing, McNeil’s Motion for
Summary Judgment, filed June 18, 2018, is HEREBY GRANTED IN PART
AND DENIED IN PART.

The Motion is GRANTED as to the portion of
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Plaintiff’s retaliation claim based on his placement in solitary
confinement and his misconduct hearing.

The Motion is DENIED as

to the portion of Plaintiff’s retaliation claim based on McNeil’s
alleged falsification of the incident report dated September 25,
2015.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 29, 2018.

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

JOHN LEON GATEWOOD VS. APRIL MCNEIL, ET AL; CIVIL 17-00090 LEK;
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT APRIL
MCNEIL’S MOTION FOR SUMMARY JUDGMENT

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