Pitts v. Tuitama et al
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT re: ECFs 116 , 117 , and 126 "Defendants Yoshinaga, Paleka, Tuitama, and Bruhn's Motions for Summ ary Judgment and Defendants Espinda, Maesaka-Hirata, and Takenaka's Motion for Substantive Joinder are GRANTED in part and DENIED in part. Specifically, Pitts exhausted his claims regarding Yoshinaga's handling of mail from his attorneys; Yoshinaga's, Paleka's, Tuitama's, and Bruhn's handling of his incoming and outgoing personal mail; and Yoshinaga's and Takenaka's alleged retaliation against him. Defendants' Mot ions are DENIED as to these claims. Pitts fails to rebut Defendants' evidence that he failed to fully or timely exhaust his claims regarding Espinda's and Maesaka-Hirata's implementation of COR.15. 02.14.2; the rejection of a letter to the Ombudsman; and Paleka's, Tuitama's, Bruhn's, and Espinda's alleged retaliation. Defendants' Motions are GRANTED as to these claims, which are DISMISSED without prejudice. &nbs p; Finally, all other arguments of both parties are DENIED. IT IS SO ORDERED." Written Order of 4/22/2019 Hearing at ECF 233 Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 5/8/2019 (jo)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
JOSEPH PITTS, #A0259019,
SGT. TUITAMA, et al.,
CIV. NO. 17-00137 JMS-KJM
ORDER DENYING IN PART AND
GRANTING IN PART
DEFENDANTS’ MOTIONS FOR
ORDER DENYING IN PART AND GRANTING IN PART
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Before the court are Defendants’ Terri Yoshinaga, Dallen Paleka, Piliopo
Tuitama, and Arnubi Bruhn’s Motions for Summary Judgment, ECF Nos. 116,
117; and Defendants Nolan Espinda, Jodie Maesaka-Hirata, and Gavin Takenaka’s
Motion for Substantive Joinder in Yoshinaga’s Motion for Summary Judgment,
ECF No. 126 (collectively, “Defendants” and “Defendants’ Motions”). Defendants
assert that pro se Plaintiff Joseph Pitts1 failed to exhaust available prison
administrative remedies regarding his claims before filing this suit, as required by
the Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a).
Pitts is currently incarcerated at the Halawa Correctional Facility (“HCF”).
On April 22, 2019, the court held a hearing on Defendants’ Motions.
Deputies Attorney General Tara K. Molnar, Gregg M. Ushiroda, and Jennifer C.
Carson appeared on behalf of Defendants. Pitts participated by telephone.
After careful consideration of the parties’ arguments and the entire record,
the court finds that Pitts exhausted available administrative remedies regarding his
claims that: (1) Yoshinaga mishandled his legal mail from attorneys;
(2) Yoshinaga, Paleka, Tuitama, and Bruhn mishandled his incoming and outgoing
personal mail; and (3) Takenaka and Yoshinaga retaliated against him. Defendants’
Motions for Summary Judgment are DENIED regarding these claims.
The court finds that Pitts failed to timely or fully exhaust his claims regarding
(1) Espinda’s and Maesaka-Hirata’s approval of an allegedly discriminatory policy
limiting indigent inmates’ access to writing supplies, COR.15.02.14.2; (2)
Espinda’s, Paleka’s, Bruhn’s, and Tuitama’s alleged retaliation against him; and (3)
the rejection of a sealed letter to the Office of the Ombudsman. Defendants’
Motions for Summary Judgment are GRANTED as to these claims, and the claims
are DISMISSED without prejudice.
Pitts brought this suit on March 21, 2017,2 alleging claims against Hawaii
State Hospital (“HSH”) staff for events that allegedly occurred in June 2015, and
against HCF and Department of Public Safety (“DPS”) officials regarding events
that allegedly occurred between 2014 and 2017 at HCF. See Compl., ECF No. 1,
PageID #9-17. Pitts named all Defendants in their official and individual capacities.
Id., PageID #4. On May 2, 2017, the court severed Pitts’ claims against HCF and
DPS Defendants from his claims against HSH Defendants, without prejudice to his
bringing them in separate actions. ECF No. 9.
On July 17, 2017, Pitts dismissed his claims against HSH Defendants and
filed the first amended complaint (“FAC”) asserting claims against HCF and DPS
Defendants only. ECF No. 16. The FAC realleged the claims against HCF and
DPS Defendants that were in the original Complaint, added details regarding Pitts’
The Complaint is deemed filed on the date Pitts gave it to prison officials for filing. See
Houston v. Lack, 487 U.S. 266, 276 (1988) (explaining prison mailbox rule); Douglas v. Noelle, 567
F.3d 1103, 1109 (9th Cir. 2009); see also ECF No. 1-2 (envelope) .
original retaliation claims, and asserted a new retaliation claim against Defendant
Ross Taylor that allegedly occurred after the original Complaint was filed.3
On September 5, 2017, the court dismissed the FAC in part, with leave to
amend to cure the deficiencies in the dismissed claims.4 ECF No. 18. Pitts was
also given the option of serving the FAC’s colorable claims immediately, as limited
by the Order.
On December 19, 2017, Pitts filed the operative, second amended complaint
(“SAC”).5 ECF No. 30. The SAC is nearly identical to the FAC, with the addition
of a new retaliation claim against Yoshinaga for actions allegedly taken days before
Pitts filed the SAC. See id., PageID #171-73.
On January 8, 2018, the court screened the SAC, again dismissed Count 4
and all claims against Defendants Abercrombie, Ige, Kimoto, Hoffman, Sequeira,
and Tom, directed service of Counts 1-3, and 5, as limited, and directed the
remaining Defendants to respond. ECF No. 31.
Taylor takes no position on Defendants’ Motions and the court does not address Pitts’ claims
against him. See ECF No. 188.
The court dismissed Count 4, and all claims against Defendants Neil Abercrombie, David Ige,
Shari Kimoto, Michael J. Hoffman, Frances Sequeira, and Jeff Tom.
Pitts gave the SAC to prison officials on December 19, it was mailed December 20, and
docketed December 22, 2017. ECF No. 30-10.
On July 5 and 12, 2018, Defendants filed their Motions. ECF Nos. 116, 117,
126. Defendants have also filed supplemental briefing as directed by the court. See
ECF Nos. 169-171. The court docketed Pitts’ Memorandum in Opposition to
Defendants’ Motions on April 4, 2019 and Defendants filed their Replies on April
8, 2019. ECF Nos. 212, 213-216.
Claims Against Defendants in the SAC
In Count 1, Pitts alleges: (a) HCF Mail Supervisor Yoshinaga and mail room
staff inspected mail from Pitts’ attorneys outside of his presence between June 25,
2014, and November 30, 2015; (b) Yoshinaga, Gang Intelligence Unit (“GIU”)
officers Captain Paleka, Tuitama, and Bruhn delayed Pitts’ incoming and outgoing
personal mail, without giving him notice, to harass and retaliate against him; (c)
DPS Director Espinda and Deputy Director Maesaka-Hirata implemented allegedly
discriminatory DPS policies, COR.15.02. (pertaining to indigent writing supplies),
and COR.15.02. (pertaining to inspecting and handling inmate mail).6 SAC, ECF
No. 30, PageID #159-67.
In Count 2, Pitts alleges that Espinda denied Pitts’ requests to transfer in
retaliation for Pitts filing lawsuits against DPS. Id., PageID #168.
The court dismissed this claim as it related to mail to and from the court, state officials, and
state agencies; only Pitts’ state law claim regarding a letter he tried to mail to the Ombudsman remains.
See Order, ECF No. 31.
In Count 3, Pitts alleges DPS Mental Health Care Supervisor Takenaka filed
a false misconduct report in retaliation for Pitts having filed a state court tort action
against Takenaka. Id., PageID #169. Pitts was disciplined on the basis of
In Count 5, Pitts alleges Yoshinaga retaliated against him by interfering with
his personal mail in early December 2017, days before he filed the SAC. Id.,
II. STANDARDS OF REVIEW
42 U.S.C. § 1997e(a): Exhaustion of Administrative Remedies
The PLRA provides that no “action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
Prisoners are required to exhaust their available administrative remedies
before filing suit. Jones v. Bock, 549 U.S. 199, 211 (2007); McKinney v. Carey,
311 F.3d 1198, 1199-1201 (9th Cir. 2002) (per curiam). Exhaustion applies to all
prisoner suits relating to prison life. Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion is required regardless of the relief sought by the prisoner or the relief
offered by the process, unless “the relevant administrative procedure lacks
authority to provide any relief or to take any action whatsoever in response to a
complaint.” Booth v. Churner, 532 U.S. 731, 736, 741 (2001) (emphases added);
Ross v. Blake, 136 S. Ct. 1850, 1857, 1859 (2016).
“Under the PLRA, a grievance ‘suffices if it alerts the prison to the nature of
the wrong for which redress is sought.’” Reyes v. Smith, 810 F.3d 654, 659 (9th
Cir. 2016) (quoting Sapp v. Kimbrell, 623 F.3d 813, 824 (9th Cir. 2010) (further
quotations omitted)). A grievance:
“need not include legal terminology or legal theories,”
because [t]he primary purpose of a grievance is to alert
the prison to a problem and facilitate its resolution, not to
lay groundwork for litigation. The grievance process is
only required to “alert prison officials to a problem, not
to provide personal notice to a particular official that he
may be sued.”
Id. (alteration in original) (internal citations omitted). Thus, a grievance need not
always specifically name a particular defendant to have exhausted a claim against
that defendant. Id.
There are no “special circumstances” that excuse exhaustion, beyond the
requirement that “remedies must indeed be ‘available’ to the prisoner.” Ross, 136
S. Ct. at 1862, 1856. There are only three limited “circumstances in which an
administrative remedy, although officially on the books, is not capable of use to
obtain relief.” Id. at 1859. Exhaustion may be excused only when:
(1) the “administrative procedure . . . operates as a simple dead end with officers unable or consistently unwilling to provide any relief to
(2) the “administrative scheme . . . [is] so opaque that . . . no ordinary
prisoner can make sense of what it demands;” and
(3) “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
See id. at 1859-60 (internal citations omitted). Section 1997e(a) otherwise
“foreclos[es] judicial discretion,” and “a court may not excuse a failure to exhaust,
even to take [special] circumstances into account.” Id. at 1856-57.
“When prison officials improperly fail to process a prisoner’s grievance, the
prisoner is deemed to have exhausted available administrative remedies.” Andres v.
Marshall, 867 F.3d 1076, 1079 (9th Cir. 2017). And, a prisoner need not proceed
through all levels of the administrative remedy program if he is satisfied with the
relief he obtains at an earlier stage. See Harvey v. Jordan, 605 F.3d 681, 685 (9th
Cir. 2010); see also Reece v. Sisto, 536 F. App’x 705, 706 (9th Cir. 2013)
(concluding that a fully-granted appeal at the first level was sufficient to exhaust
remedies, even when the relief provided was not the exact relief plaintiff requested).
The proper remedy for an inmate’s failure to exhaust is dismissal without
prejudice of those portions of the complaint that are barred by § 1997e(a), not
dismissal of the whole suit. Jones, 549 U.S. at 223-24; Lira v. Herrera, 427 F.3d
1164, 1175-76 (9th Cir. 2005).
Under Rule 56, “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law,” the
court must grant summary judgment. Fed. R. Civ. P. 56(a). The moving party has
the initial burden to demonstrate the absence of a genuine issue of material fact and
that summary judgment is proper as a matter of law. Celotex v. Catrett, 477 U.S.
317, 323 (1986). An issue is “genuine” only if there is a sufficient evidentiary basis
on which a reasonable jury could find for the nonmoving party. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” only
if it might affect the outcome of the suit under governing law. Id. All inferences
from the underlying facts must be viewed in the light most favorable to the
nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Failure to exhaust is an affirmative defense. Jones, 549 U.S. at 216. The
defendant must first prove that there was an available administrative remedy that
was unexhausted by the inmate. Williams v. Paramo, 775 F.3d 1182, 1191 (9th
Cir. 2015) (citing Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014)). If the
defendant carries that burden, the burden shifts to the inmate to “show that there is
something in his particular case that made the existing and generally available
administrative remedies effectively unavailable to him by ‘showing that the local
remedies were ineffective, unobtainable, unduly prolonged, inadequate, or
obviously futile.’” Id. (quoting Albino, 747 F.3d at 1172).
For purposes of opposing summary judgment, the contentions offered by a
pro se litigant in motions and pleadings are admissible to the extent that they are
based on personal knowledge, set forth facts that would be admissible into
evidence, and the litigant attested under penalty of perjury that they were true and
correct. Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004). “[C]onclusory
allegations unsupported by factual data,” however, are insufficient to rebut
summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
DPS Administrative Remedies
The DPS Inmate Grievance Program (“IGP”) is contained in Corrections
Administration Policy and Procedures Manual (“PPM”), COR.12.03. See ECF
Nos. 118-4, 118-5. An inmate may pursue informal resolution of a claim, but this
step is no longer mandatory and it never constituted compliance with the IGP.
Compare ECF No. 118-4, PageID #693 with ECF No. 118-5, PageID #704. The
IGP has a three-step grievance procedure that applies to all inmates regarding
incidents that arose while an inmate was incarcerated at a facility in Hawaii.
Generally, a prisoner must file an initial, Step-1 grievance within fourteen
days of the incident grieved, subject to certain exceptions. COR.12.03.8. If the
inmate is unsatisfied with the response he receives, or fails to receive a timely
response, he may file a Step-2 grievance to the Warden/Branch/Core Program
Administrator; if still unsatisfied or his grievance is unanswered, he may file a final
Step-3 grievance to the Division Administrator, which is considered full exhaustion
of the IGP. COR.12.03.8.3(c). An inmate may also submit a grievance directly to
the Division Administrator in a sealed envelope marked “Confidential” if he
“reasonably believes the issue is sensitive,” or fears for his safety if he pursued the
normal grievance procedure. COR.12.03.8.3(b). The current IGP explicitly
notifies prisoners that completion of all three steps is normally required before filing
litigation in the federal courts. See IGP II, ECF No. 118-5, COR.12.03.4.7.
Relevant Dates for Exhaustion of Pitts’ Claims
Pitts is required to have exhausted his claims in Counts 1-3, which were
alleged in the original Complaint, before its March 21, 2017 filing date. See Jones,
549 U.S. at 211; Akhtar v. J. Mesa, 698 F.3d 1202, 1210 (9th Cir. 2012) (“‘[A]
prisoner does not comply with [the exhaustion] requirement by exhausting available
remedies during the course of the litigation.’”) (quoting McKinney, 311 F.3d at
1199 and citing Rhodes v. Robinson, 621 F.3d 1002, 1007 (9th Cir. 2010)).
is required to have exhausted his new retaliation claim against Yoshinaga in Count 5
before December 19, 2017, when he brought this new claim in the SAC. Akhtar,
698 F.3d at 1210 (holding that, if “a plaintiff files an amended complaint adding
new claims based on conduct that occurred after the filing of the initial complaint,
the plaintiff need only show that the new claims were exhausted before tendering
the amended complaint to the clerk for filing”).7
Defendants ask the court to strike or disregard Pitts’ Opposition as untimely,
unsupported by competent evidence, and misleading. See Defs.’ Replies, ECF
Nos. 213, 214, 216.
Pitts objects to Defendants’ Motions as untimely filed, argues that his
grievances were either stolen or withheld from him during during discovery, and
asserts that, because he requested a jury trial, the Motions must be decided by a
jury. Pl. Opp’n, ECF No. 212, PageID #1637 (citing Blount v. Johnson, 373 F.
Additionally, “claims that arose as a cause of action prior to the filing of the initial complaint
may be added to a complaint via an amendment, as long as they are administratively exhausted prior to
the amendment.” Cano v. Taylor, 739 F.3d 1214, 1220 (9th Cir. 2014).
Supp. 2d 615, 619 (W.D. Va. 2005), vacated, 2005 WL 2246558 (W.D. Va. Sept.
First, Pitts gave his Opposition to prison authorities for filing on March 31,
2019, the day before it was due. See ECF No. 212-11 (envelope). Pitts provided
an incomplete mailing address, however, which HCF mail staff corrected on April
1, and then mailed the Opposition to the court on April 2, 2019. See id. Pitts’
Opposition is therefore timely under the prison mailbox rule because it was in
prison authorities’ control on April 1, 2019.8 See Houston, 487 U.S. at 276.
Second, the court does not rely on Pitts’ unsupported assertions that his
grievances were stolen or that Defendants refused to produce his grievances during
discovery to resolve the Motions, because there is ample, competent evidence in
the record detailing Pitts’ grievances, including evidence that Pitts himself provided,
that is sufficient to resolve the Motions. See ECF Nos. 212-1, 212-2. Defendants’
requests are DENIED.
The court recognizes the difficulty Defendants encountered by receiving Pitts’ Opposition only
four days before their Replies were due, and will take that into consideration in the future when setting
briefing schedules in pro se prisoner actions.
Third, the deadline for exhaustion motions was July 5, 2018, the date the
Motions were filed. They are timely. See Rule 16 Scheduling Order, ECF No. 106.
Finally, Pitts’ reliance on Blount, which is a vacated, non-precedential, outof-circuit case, is misplaced. Blount did not hold that the ultimate trier-of-fact must
determine motions for summary judgment regarding the issue of exhaustion, as Pitts
argues. Blount held that if genuine issues of material fact preclude a finding that an
issue is exhausted, then the trier-of-fact must resolve the issue at trial. 373 F. Supp.
2d at 619. Pitts’ objections are overruled.
Capacity to be Sued
Yoshinaga alleges that, because Pitts failed to name her in her personal
capacity, his claims for money damages against her are barred by the Eleventh
Amendment. She further asserts that, as she was acting “at all times in her official
capacity as a PSD employee, the Eleventh Amendment bars such a suit, and
summary judgment should likewise be entered in her favor.” ECF No. 116-1,
Pro se pleadings are “to be liberally construed” and “held to less stringent
standards” than those drafted by a lawyer. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam) (citation omitted); see also Hebbe v. Pliler, 627 F.3d 338, 342
(9th Cir. 2010); Fed. R. Civ. P. 8(e) (requiring that pleadings “be construed so as
to do justice”). A state official is sued in his or her official capacity if injunctive
relief against the state is sought, and in an individual capacity if relief is sought from
the official personally. Pena v. Gardner, 976 F.2d 469, 475 (9th Cir. 1992)
(Nelson, J., specially concurring), as amended (Oct. 9, 1992); Jones v. Becerra,
2018 WL 2094359, at *4 (C.D. Cal. Mar. 30, 2018), adopted, 2018 WL 2094353
(C.D. Cal. May 3, 2018). When it is unclear whether defendants are sued in official
or individual capacities, the court must examine “[t]he course of proceedings” to
determine the capacity in which each defendant is sued. Kentucky v. Graham, 473
U.S. 159, 167 n.14 (1985).
Pitts named all Defendants in their individual and official capacities in the
original Complaint; apparently, he inadvertently failed to renew this assertion in the
SAC. His claims against Yoshinaga in the SAC are nearly identical to those alleged
in the original Complaint. And throughout the SAC, Pitts refers to Yoshinaga
personally by name and as the HCF mail supervisor. His claims are based on
Yoshinaga’s personal actions regarding his mail, as well as alleged actions taken in
her official capacity in complying with or promoting an allegedly unconstitutional
State policy. Accordingly, the court construes the SAC as alleging claims against
Yoshinaga in her official and individual capacities. See Nakamura v. Honolulu
Cmty. Coll., 2013 WL 3147266, at *3 (D. Haw. June 18, 2013).
Yoshinaga’s argument that the Eleventh Amendment otherwise bars Pitts’
claims against her in her official capacity is simply incorrect. Pitts seeks
prospective injunctive relief regarding the allegedly unconstitutional mail policy and
Yoshinaga’s alleged ongoing interference with his mail. These claims are colorable
as alleged against a state official in an official capacity. See Pena, 976 F.2d at 475;
Oyama v. Univ. of Haw., 2013 WL 1767710, at *7 (D. Haw. Apr. 23, 2013)
(stating defendants named in their official capacities are subject to suit under § 1983
“for prospective declaratory and injunctive relief . . . to enjoin an alleged ongoing
violation of federal law”) (quotation and citation omitted); see also Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989).
Defendants revised their arguments somewhat in their Reply briefs.
Yoshinaga now concedes that Pitts fully exhausted available remedies regarding
“the inspection, reading, and delay of mail.” Reply, ECF No. 213, PageID #172526. She argues that she is entitled to partial summary judgment, however, because
Pitts’ grievances challenging (1) the opening of his legal mail do not explicitly refer
to the legal mail cited in the SAC; (2) interference with his letter to the Ombudsman
does not allege that she was involved; and (3) COR.15.02., as it relates to indigent
inmate writing supplies, does not allege that she was involved in this claim.
Paleka, Tuitama, and Bruhn now argue that, although Pitts exhausted general
claims regarding the mishandling of his personal mail, he failed to identify Tuitama
and Bruhn in any Step-3 grievance and he failed to file any final Step-3 grievance
alleging that Paleka, Tuitama, and Bruhn retaliated against him. See ECF Nos. 214
(Reply), 215 (Joinder).
Espinda, Maesaka-Hirata, and Takenaka assert that Pitts failed to timely
exhaust any claims against them specifically, and that his constitutional challenge to
COR.15.02., pertaining to indigent inmate writing supplies and postage and seeking
injunctive relief, has been granted as to Pitts personally, rendering this claim moot.
See ECF No. 126 (Joinder).
Pitts disputes Defendants’ arguments and asserts that he has grieved all
available remedies for each of his claims. Opp’n, ECF No. 212. Pitts also argues
that he seeks injunctive relief amending COR.15.02. on behalf of all indigent
prisoners. He claims that, although he has received some relief personally regarding
the provision of supplies and postage, this relief has “never continued nor did HCF
officials and the defendant mailroom staff follow through or adhere to it.” ECF
NO. 212-3, PageID #1641.
Legal Mail Claims: Yoshinaga
Pitts filed Step-1 grievance #269971 complaining that Yoshinaga opened or
directed others to open mail from his attorneys when it lacked a visible attorney bar
number. See ECF No. 170-2, PageID #967. Prison officials denied Step-1
#269971, informed Pitts that mail from an attorney requires the attorney’s bar
number on the envelope to be considered privileged, and directed him to review
COR.15.02.4.0 and .6, which explain which mail is entitled to special handling. Id.
Pitts appealed by filing Step-2 grievance #271538, arguing that John Schum
was on record at the prison as his attorney, and therefore, even if Schum’s mail
lacked a bar number, it should still be handled as privileged, legal mail. Id., PageID
#968. Pitts further argued that Schum’s letter should have been returned to Schum
unopened rather than opened and inspected outside of Pitts’ presence. Prison
officials denied Step-2 #271538 and again directed Pitts to review COR.15.02.
On February 23, 2015, prison officials denied Pitts’ final appeal in Step-3
grievance #271583. ECF No. 118-6, PageID #712. They again informed Pitts that
COR.15.02 “requires all mail from attorneys to include their bar number . . . [and] it
is the responsibility of the inmate to provide the sender with instructions on how to
comply with mail regulations.” Id.
These grievances plainly alerted prison officials of “the nature of the wrong
for which redress is sought.’” Reyes, 810 F.3d at 659. Pitts challenged the DPS
policy of opening attorney mail when it lacked an attorney bar number and he
wanted non-compliant mail returned to the attorney rather than opened outside of
his presence. Pitts specifically alleged that Yoshinaga was responsible for this
alleged wrong, and that mail from his attorney, John Schum, was at issue. Step-3
#271583 was final more than two years before Pitts filed the original Complaint and
it plainly put prison officials and Yoshinaga on notice of Pitts’ general claims
regarding attorney mail that lacked a bar number, and specific claims against
Yoshinaga.9 Step-3 #271583 exhausted Pitts’ challenge to COR.15.02 regarding
the handling of legal mail, and to his claim that Yoshinaga personally mishandled his
Moreover, Pitts’ final Step-3 grievance #273566, which was resolved on
October 19, 2015, also shows that prison officials had addressed and resolved
Pitts’ legal mail claims well before he commenced this suit. See ECF No. 118-6,
PageID #713. Step-3 #273566 primarily challenged the alleged interference with
Pitts’ personal mail. See ECF No. 118-6, PageID #713. But the response to Step-
Step-3 #271583 also put Pitts on notice no later than February 24, 2015, that attorney mail
that lacked a bar number would be inspected.
3 #273566, referred to an earlier resolution of Pitts’ legal mail complaints, stating,
“Capt. Paleka . . . has confirmed that he personally delivers your legal mail to you
and you sign for it.” Id. This establishes that prison officials addressed and tried
to resolve Pitts’ legal mail claims before October 19, 2015.
Pitts’ legal mail claims against Yoshinaga were fully exhausted on February
23, 2015, and her Motion is DENIED regarding those claims.
Interference With Personal Mail
Yoshinaga and Paleka concede that Pitts exhausted his claims that they
interfered with his personal mail. Tuitama and Bruhn assert, however, that Pitts
failed to exhaust those claims against them because they are not named in any final
Pitts submitted Step-1 #173131 on September 17, 2013, complaining that
HCF mail staff and the GIU were delaying his incoming and outgoing mail. ECF
No. 171-2, PageID #997. Prison officials responded that the mail room inspects
incoming and outgoing mail daily, and that they had “followed up with GIU and
[they] have already received and sent out all your mail.” Id.
In Step-2 #173135, Pitts asked who constitutes the GIU and complained that
he received no notice that his mail was being inspected, as allegedly required by
“COR.15.02.4.0.4c.” Id. at PageID #998. When Step-2 #173135 went
unanswered, Pitts submitted Step-3 #268023. Id., PageID #1004.
On February 19, 2014, Division Administrator Michael J. Hoffman replied to
Step-3 #260823. He admitted that Step-2 #173135 was never forwarded to the
warden for review and he forwarded it to the warden. Although Hoffman did not
address Pitts’ personal mail claims, he told Pitts that this “decision is final and the
ultimate recourse available within the administrative remedy process.” Id.
On March 4, 2014, then-Warden Espinda responded to Step-2 #173135,
stating that he had “personally checked all facets of the mail screening process and
none of your mail-outs are held up.” Id. at PageID #1000. Pitts received a copy of
Espinda’s and Hoffman’s responses on March 5, 2014. See id., PageID #1004.
Pitts did not appeal either response, possibly because (1) Hoffman told him that
Step-3 #260823 was final, or (2) he was satisfied with Espinda’s explanation.
These grievances alerted prison officials that Pitts was challenging the alleged
mishandling of his personal mail by HCF mail staff and the GIU, although he did
not know their identities. Defendants Tuitama and Bruhn do not allege that they
were not GIU members at that time. Pitts therefore exhausted his personal mail
claims against Yoshinaga, Paleka, Tuitama, and Bruhn no later than March 5, 2014.
See Reyes, 810 F.3d at 659 (“The grievance process is only required to ‘alert
prison officials to a problem, not to provide personal notice to a particular official
that he may be sued.’”) (quoting Jones, 549 U.S. at 219). Defendants’ Motion is
DENIED as to Pitts’ personal mail claims.
Challenge to COR.15.02.14.2: Indigent Writing Supplies and
Pitts proffers Step-3 #276854, as proof that he exhausted his claims
challenging COR.15.02.14.2. In Step-3 #276854, however, Pitts complained that
Keoni Morreira and Janice Villalobos, who are not parties to this action, “racially”
discriminated and retaliated against him when they denied him adequate writing
supplies under the indigent inmate writing supplies policy. ECF No. 212-10,
PageID #1087. Pitts claimed this impeded his ability to “access the courts or
communicate with [his] attorney[,] State Ombudsmans [sic] or the State Senator.”
Id. Pitts did not challenge the constitutionality of COR.15.02.14.2; rather, he
complained that Morreira and Villalobos denied him writing supplies because of his
race. Id. Prison officials denied Step 3 #276854 on October 26, 2015.10 Id.
While this grievance exhausted Pitts’ discrimination claims against Villalobos and
Morreira, and may raise questions about COR.15.02.14.2, it did not challenge the
Pitts was told the issue had been resolved when he was instructed to submit requests for
writing supplies to his case managers. In the alternative, Pitts was told, “you are free to ask your
attorney to provide these supplies as you have docketed cases in court and/or you may ask family
members to deposit funds so you may purchase . . . supplies.” ECF No. 212-10, PageID #1087.
policy itself or allege claims against any named Defendant generally or specifically.
Thus, Step 3 #276854 failed to alert prison authorities to the nature of Pitts’
constitutional challenge to COR.15.02.14.2 or his claims against Espinda and
Maesaka-Hirata in their official capacities.
On April 14, 2017, three weeks after Pitts filed the original Complaint, he
submitted Step-1 #390908, his first grievance directly alleging that COR.15.02.14.2
was discriminatory to indigent inmates. See ECF No. 170-9, PageID #981. This
grievance and the related Step-2 grievance #390928 were denied. Id., PageID
#983. On or before June 30, 2017, prison officials granted Pitts’ Step-3 grievance
#390943 and increased the amount of writing supplies that would be provided to
him. See ECF No. 118-6, PageID #719. These grievances were begun and
resolved after Pitts filed the original Complaint on March 21, 2017, and mooted his
claims for injunctive relief regarding the policy.
Pitts fails to rebut Espinda and Maesaka-Hirata’s evidence that his
constitutional challenge to COR.15.02.14.2 was unexhausted before he filed this
suit. Espinda’s and Maesaka-Hirata’s Motion is GRANTED and this claim is
DISMISSED without prejudice.11
Pitts alleges in his Opposition, that, although he was granted an exception to COR.15.02.14,
unidentified prison staff continued to deny him supplies. Pitts did not allege this in the FAC or SAC,
Letter to the Office of the Ombudsman
Pitts alleges that HCF mail staff rejected his sealed letter to the Ombudsman
on February 10, 2016, in violation of state law. See SAC, ECF No. 30, PageID
#161. He submits Step-1 #276891, as proof that he challenged COR.15.02.6 as it
applies to mail to the Ombudsman, and therefore exhausted this claim. See ECF
No. 212-6, #1671. Step-1 #276891 is unavailing, however, because Pitts filed it on
February 9, 2016, the day before mail staff allegedly rejected the letter, it refers to
mail from the Ombudsman not from Pitts, and it is not a final, Step-3 grievance.
Pitts filed Step-1 #177806, challenging the rejection of his letter to the
Ombudsman, on February 10, 2016, the date that it was rejected. ECF No. 212-6,
PageID #1666. He directs the court to Step-3 #276854, as proof that he fully
exhausted this claim. As discussed above, however, Step-3 #276854 involved
and this claim is not reflected in the record. Between June 30, 2017, and April 4, 2019, Pitts filed
twenty-four documents, none of which allege that he was still being denied adequate writing supplies or
postage. ECF Nos. 16, 17, 24, 30, 33, 71, 74, 83, 84, 97, 98, 107, 108, 115, 133, 135, 136, 145,
172, 175, 176, 186, 203, 204, and 212.
Pitts was also concurrently litigating Pitts v. Espinda, Civ. No. 15-00483 JMS-KJM, in which
he also alleged he was being denied writing supplies. During a June 16, 2017 status conference in that
case, DPS Litigation Coordinator Shelley Nobriga assured the court on the record that Pitts had been
granted an exception to COR.15.02. ECF No. 104. Pitts filed thirty-three documents in Civ. No. 1500483 JMS-KJM after this, none of which alleged a denial of writing supplies or postage. See ECF
Nos. 105-07, 113, 115, 117, 119, 120, 130, 165, 175, 176, 181, 182, 187, 188, 201, 207, 213,
216, 217, 237, 238-42, 251, 252, 263, 264, 268, 286.
Pitts’ complaint that Morreira and Villalobos denied him writing supplies on the
basis of his race, which he alleged impeded his ability to “access the courts or
communicate with [his] attorney[,] State Ombudsmans [sic] or the State Senator.”
ECF No. 212-10, PageID #1087. It was not a Step-2 grievance (regarding Step-1
#177806), and could not have alerted prison authorities that any named Defendant
rejected Pitts’ letter to the Ombudsman on February 10, 2016.
After a comprehensive search of the 344 pages in the record of Pitts’
grievances, the court has been unable to locate any other grievance regarding this
claim, and Pitts points to none. Pitts fails to rebut Defendants’ evidence that he
failed to exhaust available remedies regarding this claim. Defendants’ Motion is
GRANTED as to Pitts’ rejected letter to the Ombudsman, and this claim is
DISMISSED without prejudice.
Pitts alleges Takenaka fabricated false charges against him, that resulted in a
disciplinary proceeding, in retaliation for Pitts’ filing a state tort action against
Takenaka. Pitts was found not guilty at the initial prison disciplinary hearing on
these charges. Pitts received notice on January 21, 2016, however, that a second
hearing was scheduled for the next day, based on new evidence supporting
Takenaka’s charges. ECF No. 212-5, PageID #1652. On January 22, 2016, Pitts
submitted Step-1 #176274, in which he explicitly alleged that Takenaka’s false
report and the second hearing were retaliatory. Id., PageID #1649. On January 24,
2016, Warden Sequeira replied that the evidence warranted a second hearing and
Pitts would have an opportunity to defend himself at the second hearing. Id.,
On February 2, 2016, after Pitts was found guilty at the second hearing, he
immediately filed Step-2 #276558, again asserting Takenaka’s charges and the
second hearing were retaliatory. Id., PageID #1651. Step-2 #276558 was denied
on May 2, 2018.
On May 6, 2016, Pitts filed Step-3 #169020, primarily challenging the second
hearing’s procedures, and stating, “Gavin [Takenaka] charge on Nov. 10, 15, wrote
me up Dec. 14, 15.” Id., PageID #1655. Step-3 #169020 was denied on June 17,
2016, before Pitts brought this claim in the original Complaint. See id. This series
of grievances plainly alerted prison officials that Pitts was challenging Takenaka’s
alleged retaliatory actions, which resulted in his disciplinary hearing and sanctions.
Pitts rebuts Takenaka’s argument that this claim is unexhausted. The Motion is
DENIED as it relates to Pitts’ retaliation claim against Takenaka.
Pitts alleges Yoshinaga retaliated against him before he filed the original
Complaint, and again, days before he filed the SAC.
Claims in the Original Complaint
In Step-3 #177896, submitted on April 27, 2016, Pitts alleged that Yoshinaga
was “obstructing, hindering, and violating” his right to communicate by returning
his incoming mail package (a catalog) and photographs to the senders. He called
this “clear retaliation.” ECF No. 118-6, PageID #718. This final appeal was
rejected as “moot” because Pitts had been transferred to the Oahu Community
Correctional Center on May 11, 2016. Id. This Step-3 resolution exhausted Pitts’
retaliation claim against Yoshinaga, even though it did not address the merits of his
claim, because he had no further available remedy.12
Moreover, in Step-3 #273566, denied October 19, 2015, Pitts alleged that
Yoshinaga had “been withholding and tampering with my mail for years because the
institution wants to retaliate against me because of my grievances.” ECF No. 1186, PageID #713. This challenge to her alleged retaliation cannot be plainer.
It is troubling that prison officials rejected this Step-3 grievance because Pitts was transferred
to another DPS facility. Transfers between prisons and jails is common, and as seen here, often the
inmate is transferred back to the original prison where his issue may be repeated. This practice is
confusing, thwarts a meaningful resolution of a claim, and impedes the PLRA’s goal of reducing
prisoner suits by allowing prison officials to address an issue before a lawsuit is filed.
Step-3 grievances #177896 and #273566 clearly alerted prison officials to
Pitts’ retaliation claims against Yoshinaga that allegedly occurred before he filed the
original Complaint. These claims are fully exhausted and the Motion is DENIED as
it relates to these claims.
New Retaliation Claims Alleged in the SAC
Pitts alleges Yoshinaga interfered with his personal mail on December 7 and
8, 2017, just days before he submitted the SAC on December 19, 2017. Pitts
submitted Step-1 grievances #397654 and #397655 regarding these claims. See
ECF Nos. 30-2, 30-3. Prison officials rejected these grievances on December 7
and 13, 2017, respectively. The response to Step-1 #397654 was, “You state you
have an open lawsuit against the mailroom, therefore you need to address all
concerns related to the lawsuit with the courts.” ECF No. 30-3, PageID #179.
Similarly, the response to #397655 stated:
You state you have an active lawsuit on this issue. The
grievance process can’t help you. Address your
concerts to the court. Capt. Paleka inform[s] this office
that he has spoken with you concerning [unreadable] and
the issue has been settled.
ECF No. 30-2, PageID #178.
Prison officials told Pitts in no uncertain terms that, because he was pursuing
relief in court on similar claims, there were no administrative remedies available to
him for these claims. Again, this is troubling because these were new claims that
Pitts had a right to raise in an amended pleading and was required to exhaust before
he filed an amended pleading. Prison officials cannot reject an inmate’s grievances
because he filed suit, and then seek summary judgment for failure to exhaust the
very grievances that they rejected. Pitts rebuts Defendants’ arguments regarding his
later retaliation claims against Yoshinaga, and the Motion is DENIED as to those
Retaliation: Paleka, Tuitama , and Bruhn
It is unclear whether Pitts even alleges a colorable retaliation claim against
Paleka, Tuitama, and Bruhn in the SAC. He complains that, per prison policy, they
inspected his incoming and outgoing personal mail based on his gang affiliation.
But Pitts makes no clear statement or provides any facts in the SAC to support a
retaliation claim against Paleka, Tuitama, and Bruhn. Pitts’ hyperbolic allegation
that “retaliation is automatic,” is specifically addressed towards Yoshinaga and mail
room staff and is too conclusory to suffice as a retaliation claim against these GIU
officers who were following DPS policy. SAC, ECF No. 30, PageID #171.
Nonetheless, the court has searched the record and found no grievances,
Step-3 or earlier, that allege a comprehensible retaliation claim against Paleka,
Tuitama, and Bruhn. Pitts therefore fails to rebut Defendants’ Motion regarding
these claims. Paleka’s, Tuitama’s, and Bruhn’s Motion is GRANTED and Pitts’
retaliation claims against them are DISMISSED without prejudice.
Pitts alleges that Espinda’s refusal to transfer him from HCF “only can be
interpreted as deliberate retaliation for [Pitts’] lawsuits against DPS.” SAC, ECF
No. 30, PageID #168. This claim is the barest possible allegation of retaliation and
would not likely withstand examination on its merits. Regardless, the court has
searched the record and agrees with Espinda that Pitts did not exhaust any
retaliation claim against him before bringing this suit. The Motion is GRANTED as
to Pitts’ claim of retaliation against Espinda, and this claim is DISMISSED without
Defendants Yoshinaga, Paleka, Tuitama, and Bruhn’s Motions for Summary
Judgment and Defendants Espinda, Maesaka-Hirata, and Takenaka’s Motion for
Substantive Joinder are GRANTED in part and DENIED in part.
Specifically, Pitts exhausted his claims regarding Yoshinaga’s handling of
mail from his attorneys; Yoshinaga’s, Paleka’s, Tuitama’s, and Bruhn’s handling of
his incoming and outgoing personal mail; and Yoshinaga’s and Takenaka’s alleged
retaliation against him. Defendants’ Motions are DENIED as to these claims.
Pitts fails to rebut Defendants’ evidence that he failed to fully or timely
exhaust his claims regarding Espinda’s and Maesaka-Hirata’s implementation of
COR.15.02.14.2; the rejection of a letter to the Ombudsman; and Paleka’s,
Tuitama’s, Bruhn’s, and Espinda’s alleged retaliation. Defendants’ Motions are
GRANTED as to these claims, which are DISMISSED without prejudice.
Finally, all other arguments of both parties are DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 8, 2019.
/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge
Pitts v. Tuitama, 1:17 cv 00137 JM S/KJM ; scrn 2017 Pitts 17 137 jms (grt M SJ exh in part); Exh ‘19
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