Pitts v. Espinda et al
Filing
141
ORDER GRANTING THE MOVING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT REGARDING FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES re 76 - Signed by JUDGE LESLIE E. KOBAYASHI on 9/28/2022. On the basis of the foregoing, the Moving Defendants' Motion for Summary Judgment Regarding Failure to Exhaust Administrative Remedies, filed on February 4, 2022, is HEREBY GRANTED. Summary judgment is granted in favor of Seaton- Brisette, Silva, and Kami as to all of Pit ts's claims against them. There being no remaining claims against Seaton-Brisette, Silva, and Kami, the Clerk's Office is DIRECTED to terminate them as parties on October 13, 2022, unless Pitts files a motion for reconsideration of this Order by October 12, 2022. (eta)COURT'S CERTIFICATE OF SERVICE - Joseph Pitts shall be served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on September 29, 2022. Registered Participants of CM/ECF received the document electronically to the email addresses listed on the Notice of Electronic Filing (NEF).
Case 1:20-cv-00431-LEK-KJM Document 141 Filed 09/28/22 Page 1 of 21
PageID.760
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
JOSEPH PITTS,
CIV. NO. 20-00431 LEK-KJM
Plaintiff,
vs.
NOLAN ESPINDA, ET AL.,
Defendants.
ORDER GRANTING THE MOVING DEFENDANTS’MOTION FOR SUMMARY JUDGMENT
REGARDING FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
Before the Court is Defendants Robin Kami (“Kami”),
Lei Silva (“Silva”), and Tiare Seaton-Brisette’s (“SeatonBrisette” and collectively “the Moving Defendants”) Motion for
Summary Judgment Regarding Failure to Exhaust Administrative
Remedies (“Motion”), filed on February 4, 2022.
[Dkt. no. 76.]
Pro se Plaintiff Joseph Pitts (“Pitts”) filed his memorandum in
opposition on May 23, 2022, and the Moving Defendants filed
their reply on May 31, 2022.
[Dkt. nos. 103, 105.]
The Court
finds this matter suitable for disposition without a hearing
pursuant to Rule LR7.1(c) of the Local Rules of Practice for the
United States District Court for the District of Hawaii (“Local
Rules”).
The Moving Defendants’ Motion is hereby granted for
the reasons set forth below.
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PageID.761
BACKGROUND
This action concerns allegations that officials of the
State of Hawai`i Department of Public Safety (“DPS”) and Oahu
Community Correctional Center (“OCCC”) violated Pitts’s rights
while he was a pretrial inmate at OCCC.
See Moving Defs.’
Concise Statement of Facts in Support of their Motion for
Summary Judgment Regarding Failure to Exhaust Administrative
Remedies (“Moving Defs.’ CSOF”), filed 2/4/22 (dkt. no. 77), at
¶ 1; Pitts’s Opposition to Defendants Concise Statement of Facts
(“Pitts’s CSOF”), filed 5/23/22 (dkt. no. 104), at ¶ 1 (stating
Pitts agrees with Moving Defs.’ ¶ 1).
I.
DPS’s Inmate Grievance Program
“DPS has a three-step ‘Inmate Grievance Program’
(‘IGP’) that is found in DPS’ Corrections Administration Policy
and Procedures under Policy No. COR.12.03.”
at ¶ 2; Pitts’s CSOF at ¶ 2.]
[Moving Defs.’ CSOF
The IGP is the mechanism for
“‘receiving, processing, and resolving inmate
complaints . . . .’”
¶ 3.]
[Moving Defs.’ CSOF at ¶ 3; Pitts’s CSOF
Inmates must submit their grievance within fourteen
calendar days from the date on which the basis of their
grievance occurred.
An extension may be allowed if an inmate
demonstrates, in writing, a valid reason for the delay.
2
See
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Moving Defs.’ CSOF, Decl. of Charles Laux (“Laux Decl.”),1 Exh. A
(DPS Corrections Administration Policy and Procedures, Inmate
Grievance Program, Policy No.: Cor.12.03, effective 7/1/2015
(“2015 Policy”)), at §§ 8.1, 8.2; Exh. B (DPS Corrections
Administration Policy and Procedures, Inmate Grievance Program,
Policy No.: Cor.12.03, effective 4/7/2020 (“2020 Policy”)), at
§§ 5.4.a, 5.4.b.
A grievance is considered filed on the date it is
logged into the system as received by the Inmate Grievance
Specialist (“IGS”) or the Facility Inmate Grievance Officer
(“FIGO”).
See Laux Decl., Exh. A (2015 Policy) at § 10.1; id.,
Exh. B (2020 Policy) at § 5.6.a.2
The Section Supervisor or IGS
must issue a written response within twenty working days from
the date the grievance was filed.
If the grievance cannot be
responded to within twenty working days, the deadline may be
extended once for another twenty working days.
Once an inmate
receives the written response and they wish to appeal the
decision in the response, they must submit an appeal to the
Warden/Branch/Core Program Administrator within five calendar
Charles Laux is the DPS Inmate Grievance Specialist.
[Laux Decl. at ¶ 1.]
2 Under the 2015 Policy, inmates submitted their grievances
through a program called “Offendertrak.” [Laux Decl., Exh. A
(2015 Policy) at § 10.1.] Under the 2020 Policy, inmates submit
their grievances through “the Corrections Information Management
System.” [Id., Exh. B (2020 Policy) at § 5.6.a.]
1
3
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days from the date of the receipt of the response.
PageID.763
The
Warden/Branch/Core Program Administrator must respond to the
appeal in writing within twenty working days.
See Moving Defs.’
CSOF at ¶¶ 6-8; Pitts’s CSOF at ¶¶ 6-8.
If the Warden/Branch/Core Program Administrator denies
the appeal, the inmate may appeal the denial to the Division
Administrator within five days.
The Division Administrator must
respond to the inmate’s appeal within twenty working days.
The
grievance process is exhausted if the final appeal is denied or
if the Division Administrator fails to respond within the
specified time.
Once the grievance process is exhausted, the
inmate may seek redress through the legal system.
See Moving
Defs.’ CSOF at ¶¶ 9–11; Pitts’s CSOF at ¶¶ 9–11.
II.
Pitts’s Grievances
A.
Grievances Related to Mail
Pitts submitted Grievance No. 413679, dated
January 21, 2020, that stated jail officials were opening and
reading legal mail between Pitts and his attorney outside of
Pitts’s presence.
at ¶ 20.
See Moving Defs.’ CSOF at ¶ 20; Pitts’s CSOF
In a response dated February 4, 2020, Grievance
No. 413679 was denied because the mail “was not marked legal or
confidential.”
See Laux Decl., Exh. D-1 (State of Hawaii –
Department of Public Safety Administrative Remedy Form (“Remedy
Form”) – No. 413679).
In Grievance No. 413690, dated
4
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February 3, 2020, Pitts stated OCCC mailroom officials opened
legal mail, dated January 31, 2020 and February 3, 2020, from
Pitts’s attorney to Pitts.
Grievance No. 413690 was denied
because it was a duplicate of Grievance No. 413679, i.e.,
although it referred to different dates, it raised the same
issue.
See Moving Defs.’ CSOF at ¶ 21; Pitts’s CSOF at ¶ 21.
Pitts signed an acknowledgment form dated February 8, 2020
confirming that he received the OCCC officials’ response to
Grievance No. 413679.
See Moving Defs.’ CSOF at ¶ 23; Pitts’s
CSOF at ¶ 23.
Pitts also submitted Grievance No. 413695, dated
February 8, 2020, that appealed Grievance No. 413679.
No. 413695 was denied on February 14, 2020.
CSOF at ¶ 24; Pitts’s CSOF at ¶ 24.
Grievance
See Moving Defs.’
Pitts did not sign the
Inmate Acknowledgement of Receipt of Grievance Response form for
the response to Grievance No. 413695.
See Laux Decl., Exh. D-6.
Failure to return the acknowledgement of receipt form ends the
process for the respective grievance and no further appeals are
accepted.
See id.
Pitts submitted Grievance No. 246235, dated
September 24, 2020, to appeal the denial of Grievance No. 413679
and Grievance No. 413695.
Pitts’s CSOF at ¶ 26.
See Moving Defs.’ CSOF at ¶ 26;
Grievance No. 246235 was denied because:
(1) Pitts failed to file the appeal within five calendar days
from the date of receipt of the denial of Grievance No. 413695;
5
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and (2) Pitts did not sign and/or return the necessary
acknowledgment of receipt form.
See Laux Decl., Exh. D-8
(response to Pitts from E. Loredo, IGS, dated 11/5/20, regarding
Grievance No. 246235).
Pitts did not sign the acknowledgment of
receipt form for the denial of Grievance No. 246235.
See id.,
Exh. D-9.
Pitts submitted Grievance No. 242085, dated August 23,
2020, that stated Silva and Kami were deliberately leaving the
lock open in the mailroom which made it accessible to officers
and non-mail personnel and allowed them to read and destroy
Pitts’s mail.
See Laux Decl., Exh. D-10 (Remedy Form –
No. 242085).
A response was issued on September 23, 2020
stating that “[t]he mailbox is secured, [and] no one is
tampering with [Pitts’s] mail.”
[Id.]
Pitts did not sign and
return the necessary acknowledgement of receipt form for the
response to Grievance No. 242085.
¶ 30; Pitts’s CSOF at ¶ 30.
See Moving Defs.’ CSOF at
Pitts also submitted Grievance
No. 246243, dated September 20, 2020, which stated Pitts’s
outgoing mail was being delayed.
¶ 32; Pitts’s CSOF at ¶ 32.
See Moving Defs.’ CSOF at
“A Return Notice dated November 6,
2020 rejected Grievance No. 246243 on the basis that [Pitts]’s
complaint should be submitted as a request, not a grievance.”
[Moving Defs.’ CSOF at ¶ 33; Pitts’s CSOF at ¶ 33.]
6
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In Grievance No. 246236, dated September 21, 2020,
Pitts stated Silva was delaying his mail from being sent out and
opening privileged mail outside of his presence.
Defs.’ CSOF at ¶ 35; Pitts’s CSOF at ¶ 35.
See Moving
“A Return Notice
dated November 6, 2020 denied Grievance No. 246236 on several
grounds and gave [Pitts] the option to resubmit the grievance
after making the appropriate corrections.”
at ¶ 36; Pitts’s CSOF at ¶ 36.]
[Moving Defs.’ CSOF
Pitts did not sign and return
the necessary acknowledgment of receipt form for the response to
Grievance No. 246236.
Pitts submitted Grievance No. 246587,
dated October 25, 2020, appealing Grievance No. 246236.
See
Moving Defs.’ CSOF at ¶¶ 37–38; Pitts’s CSOF at ¶¶ 37–38.
Grievance No. 246587 was denied because, among other things,
Pitts did not resubmit Grievance No. 246236 with the appropriate
corrections.
See Laux Decl., Exh. E-8 (response to Pitts from
E. Loredo, IGS, dated 11/13/20, regarding Grievance No. 246587).
Pitts did not sign the acknowledgement of receipt form for the
denial of Grievance No. 246587.
B.
See id., Exh. E-9.
Inadequate Medical Treatment Grievance
Pitts submitted Grievance No. 241843, dated July 26,
2020, which stated that on July 9, 2020 Pitts was in a physical
7
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altercation and he was sent to the medical unit.3
PageID.767
Pitts stated
in his grievance that the nurse on duty – Seaton-Brisette – did
not assess or treat an injury on his hand that he sustained
during the physical altercation.
Pitts also stated that, when
he attempted to seek treatment after the initial visit, medical
staff refused to treat his hand multiple times.
Exh. C-1 (Remedy Form - No. 241843).4
See id.,
A Return Notice for
Grievance No. 241843, dated July 29, 2020, indicated that his
grievance was denied because Pitts failed to file the grievance
within fourteen calendar days from the date of the incident.
See id., Exh. C-2.
Pitts resubmitted Grievance No. 241843 with
the correct date of the altercation, which was received on
August 3, 2020 and logged on August 6, 2020.
See id., Exh. C-4.
Neither party submits evidence of a response for the
resubmission of Grievance No. 241843.5
The Moving Defendants
submitted an Inmate Acknowledgment of Receipt of Grievance
Grievance No. 241843 was initially received on July 29,
2020, but it incorrectly stated that the physical altercation
occurred on December 9, 2020 rather than July 9, 2020. See Laux
Decl., Exh. C-1. That version of Grievance No. 241843 was sent
back to Pitts, see id., Exh. C-2 (response to Pitts from IGO,
dated 7/29/20, regarding Grievance No. 241843), and Pitts
resubmitted the grievance with the correct date, which was
received on August 3, 2020, see id., Exh. C-4.
4 The initial version of Grievance No. 241843 does not have
a log date.
3
Pitts states in his memorandum in opposition that the
resubmission of Grievance No. 241843 was answered on
September 24, 2020. See Mem. in Opp. at 6.
5
8
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Response form, dated September 28, 2020, regarding the response
to Grievance No. 241843.
of receipt form.
Pitts did not sign the acknowledgment
See id., Exh. C-3.
It is unclear, however, if
the acknowledgment of receipt form is for the response to the
initial submission of Grievance No. 241843 or the response to
the resubmitted version of the grievance.
Pitts submitted Grievance No. 242570, dated
September 10, 2020, which stated Pitts did not receive a
response for Grievance No. 241843 and other grievances.
Laux Decl., Exh. C-5 (Remedy Form – No. 242570).
See
An IGS
responded to Grievance No. 242570, dated November 6, 2020,
stating the grievances were responded to.
See id.
Pitts submitted Grievance No. 246590, dated
October 25, 2020, which appealed the denial of Grievance
No. 242570.
No. 246590).
See Laux Decl., Exh. C-6 (Remedy Form –
“A Return Notice dated November 12, 2020
identified certain defects in Grievance No. 246590 and informed
[Pitts] that he may correct and resubmit on a new grievance.”
[Moving Defs.’ CSOF at ¶ 18; Pitts’s CSOF at ¶ 18.]
Pitts did
not file a corrected grievance for the issues raised in
Grievance No. 246590, nor did he pursue a Step 3 appeal of the
9
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response to Grievance No. 246590.
PageID.769
See Moving Defs.’ CSOF at
¶ 19; Pitts’s CSOF at ¶ 19.6
III. Pitts’s Claims Against the Moving Defendants
The operative pleading in this case is Pitts’s
Prisoner Civil Rights Complaint - Second Amended Complaint,
filed on June 9, 2021 (“Second Amended Complaint”).
no. 24.]
[Dkt.
Pertinent to the instant Motion, Pitts alleges the
following claims: (1) a violation of Pitts’s right to adequate
medical care against Seaton-Brisette, pursuant to 42 U.S.C.
§ 1983 (“Count III”); [id. at 14-19;] (2) violations of Pitts’s
First Amendment of the United States Constitution right against
Kami and Silva for opening Pitts’s legal mail outside his
presence and delaying Pitts’s mail, pursuant to § 1983
(“Count IV”); [id. at 20;] and (3) supervisory liability against
Silva for the opening of Pitts’s legal mail and delaying his
mail, pursuant to § 1983 (“Count V”), [id. at 23].7
The Moving
Defendants argue summary judgment in their favor is proper
Pitts states he did not pursue Grievance No. 246590
because he received the medical care that he claimed OCCC failed
to provide. See Pitts’s CSOF at ¶ 19.
7 This Court previously explained
that, although vicarious
liability is inapplicable in § 1983 actions, Pitts sufficiently
alleged that Silva was personally involved in the alleged
constitutional violation. See Order Dismissing Second Amended
Complaint in Part and Directing Service, filed 8/18/21 (dkt.
no. 25), at 28–29. Thus, Counts IV and V against Silva are, in
effect, the same claim.
6
10
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because Pitts failed to exhaust the administrative remedies with
respect to his claims against the Moving Defendants.
DISCUSSION
I.
Exhaustion Under the Prison Litigation Reform Act (“PLRA”)
The PLRA “mandates that an inmate exhaust ‘such
administrative remedies as are available’ before bringing suit
to challenge prison conditions.”
Ross v. Blake, 578 U.S. 632,
635 (2016) (quoting 42 U.S.C. § 1997e(a)).
“[A]n inmate is
required to exhaust those, but only those, grievance procedures
that are ‘capable of use’ to obtain ‘some relief for the action
complained of.’”
Id. at 642 (quoting Booth v. Churner, 532 U.S.
731, 738 (2001)).
“The level of detail necessary in a grievance
to comply with the grievance procedures will vary from system to
system and claim to claim, but it is the prison’s requirements,
and not the PLRA, that define the boundaries of proper
exhaustion.”
Jones v. Bock, 549 U.S. 199, 218 (2007) (emphases
added).
II.
Exhaustion in the Instant Case
A.
Grievances Related to Mail
Pitts alleges Silva and Kami opened and read his mail
containing privileged and legal correspondence from his
attorney.
See Second Amended Complaint at 20.
The Moving
Defendants argue Pitts’s claims related to mail were not
11
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exhausted and, therefore, summary judgment is appropriate.
Mem. in Supp. of Motion at 13-14.
1.
See
The Court agrees.
Grievance No. 413679
Grievance No. 413679 stated jail officials unlawfully
opened and read Pitts’s privileged legal mail.
Defs.’ CSOF at ¶ 20; Pitts’s CSOF at ¶ 20.
was denied on February 4, 2020.
(Remedy Form – No. 413679).
See Moving
Grievance No. 413679
See Laux Decl., Exh. D-1
Although Pitts submitted Grievance
No. 413690, it was denied because it was duplicative of
Grievance No. 413679.
at ¶ 21.
See Moving Defs.’ CSOF ¶ 21; Pitts’s CSOF
Pitts signed the acknowledgement of receipt form for
the response to Grievance No. 413679.
¶ 23; Pitts’s CSOF at ¶ 23.
See Moving Defs.’ CSOF at
Pitts appealed the denial of
Grievance No. 413679 in Grievance No. 413695, but the denial of
Grievance No. 413679 was upheld.
¶ 24; Pitts’s CSOF at ¶ 24.
See Moving Defs.’ CSOF at
Pitts did not sign the
acknowledgement of receipt form for the response to Grievance
No. 413695.
See Laux Decl., Exh. D-6.
Pitts submitted a Step 3
appeal in Grievance No. 246235, but it was denied as untimely,
and because Pitts did not sign and/or return the acknowledgement
of receipt form for the response to Grievance No. 413695.
See
Laux Decl., Exhs. D-8, D-9.
Because the acknowledgment of receipt form expressly
requires an inmate to sign and return the form, Pitts’s failure
12
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to sign the acknowledgement of receipt form for the responses to
Grievance No. 413695 and Grievance No. 246235 ended the
grievance process for Grievance No. 413679.
See, e.g., Laux
Decl., Exh. D-9 (“Failure to return this form will constitute
refusal to sign and accept.
In accordance with Policy and
Procedure COR.12.03.S.3e failure to sign and accept receipt of a
grievance response ends the process for that issue.”).
Pitts
did not follow the requirements necessary for Grievance
No. 413679 to be within “the boundaries of proper exhaustion.”
See Jones, 549 U.S. at 218.
Thus, summary judgment is granted
in favor of Silva and Kami with respect to Pitts’s claim against
them related to Grievance No. 413679.
See Fed. R. Civ. P. 56(a)
(stating summary judgment shall be granted “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”).
2.
Grievance No. 242085
Grievance No. 242085 stated Silva and Kami were
deliberately leaving the lock open in the mailroom.
Decl., Exh. D-10.
See Laux
A response was issued, see id., but Pitts did
not sign and return the acknowledgment of receipt form for the
response to Grievance No. 242085, see Moving Defs.’ CSOF at
¶ 30; Pitts’s CSOF at ¶ 30.
Accordingly, Pitts did not properly
exhaust Grievance No. 242085 and, therefore, his claims against
Silva and Kami based on that grievance fail as a matter of law.
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Because there is not a genuine issue of material fact as to
whether Pitts exhausted the administrative remedies for
Grievance No. 242085, summary judgment is granted in favor of
Silva and Kami as to Pitts’s claims against them related to
Grievance No. 242085.
3.
Grievance No. 246243 and Grievance No. 246236
Grievance No. 246243 stated Pitts’s outgoing mail was
being delayed.
¶ 32.
See Moving Defs.’ CSOF at ¶ 32; Pitts’s CSOF at
The relief Pitts sought in Grievance No. 246243 was a
written explanation why his mail was being delayed.
Decl., Exh. E-1.
See Laux
Grievance No. 246243 was rejected because
Pitts’s complaint should have been submitted as a request, not a
grievance.
¶ 33.
See Moving Defs.’ CSOF at ¶ 33; Pitts’s CSOF at
Pitts states he requested an explanation from Silva, see
Mem. in Opp. at 14, but he only submits as evidence a letter
from Silva dated September 10, 2020 that explains Silva found a
certified piece of mail from Pitts’s attorney opened, see Mem.
in Opp., Exh. O1CD.
The letter from Silva predates Grievance
No. 246243 and, thus, it is unclear if Pitts requested
additional information from Silva after receiving her response.
It is also unclear if Pitts signed the acknowledgement of
receipt form for the response to Grievance No. 246243 because
the acknowledgement of receipt form submitted by the Moving
Defendants states that it is for a different grievance.
14
See
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Laux Decl., Exh. E-3.8
PageID.774
In any event, Pitts did not file an
appeal for the denial of Grievance No. 246243.
Grievance No. 246236 stated Silva was delaying Pitts’s
mail from being sent out and Silva was opening privileged mail
outside of Pitts’s presence.
Grievance No. 246236 was denied on
multiple grounds and Pitts was given the option to resubmit a
corrected grievance.
Pitts did not sign and return the
acknowledgement of receipt form.
Pitts submitted Grievance
No. 246587, which appealed the denial of Grievance No. 246236.
See Moving Defs.’ CSOF at ¶¶ 35–38; Pitts’s CSOF at ¶¶ 35–38.
Grievance No. 246587 was denied because Pitts did not resubmit a
corrected version of Grievance No. 246236.
Exh. E-8.
See Laux Decl.,
Pitts did not sign the acknowledgement of receipt
form for the response to Grievance No. 246587.
See Laux Decl.,
Exh. E-9.
Pitts argues the responses to Grievance No. 246243 and
Grievance No. 246236 Grievance were untimely and, therefore, he
properly exhausted the available administrative remedies.
e.g., Mem. in Opp. at 15.
See,
The denials of Grievance No. 246243
and Grievance No. 246236 were issued on November 6, 2020.
See
Exhibit E-3 is an Inmate Acknowledgement of Notification
of Return/Denial form for Grievance No. 246235. See Moving
Defs.’ CSOF, Laux Decl., Exh. E-3. Exhibit E-3 either contains
a typography error regarding the grievance number or does not
refer to Grievance No. 246243. Neither party addresses the
issue.
8
15
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Laux Decl., Exhs. E-2, E-5.
PageID.775
A response is due twenty working
days from the date the grievance is logged into the system,
unless a twenty-working-day extension is applied because the
first deadline is insufficient to respond to the grievance.
Moving Defs.’ CSOF at ¶¶ 5–6; Pitts’s CSOF at ¶¶ 5–6.
See
Grievance
No. 246243 and Grievance No. 246236 were logged on November 6,
2020.
See Laux Decl., Exh. E-1 (Remedy Form – No. 246243); id.,
Exh. E-4 (Remedy Form – No. 246236).
Both grievances were
responded to by their respective deadlines.9
Pitts also argues staff failed to respond to all of
the issues raised in Grievance No. 246236 and, thus, he
exhausted his administrative remedies.10
See Mem. in Opp. at 15.
But, Grievance No. 246236 was denied on multiple grounds and the
return notice informed Pitts to resubmit the grievance with
corrections.
See Laux Decl., Exh. E-5.
Pitts did not resubmit
the grievance and instead filed an appeal in Grievance
No. 246587.
See id., Exh. E-7.
Grievance No. 246587 was denied
Even if the response deadline was calculated from the date
the grievances were received – rather than when they were logged
– the responses were timely because they were within forty
working days from the date they were received. See , Laux
Decl., Exh. E-1 (Remedy Form – No. 246243); id., Exh. E-4
(Remedy Form – No. 246236).
9
Although Pitts states the grievance number is 246231, the
Court interprets Pitts’s citation to that grievance as a
typographic mistake and assumes Pitts intended to cite to
Grievance No. 246236. See Mem. in Opp. at 15.
10
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because Pitts failed to resubmit the Step 1 grievance for
Grievance No. 246236.
See id., Exh. E-8.
Thus, to the extent
that Pitts states that all of his concerns in Grievance
No. 246236 were not appropriately addressed, Pitts’s argument is
not persuasive because he failed to resubmit the grievance.
Finally, Pitts contends the administrative remedies
were unavailable for Grievance No. 246243 because the IGS stated
Pitts’s writing was “‘hard to understand,’” but was able to
“state out specific facts in [his] grievance . . . .”
Opp. at 15.]
[Mem. in
It is reasonable to infer that the IGS could
understand some parts of Pitts’s grievance but not other parts.
Furthermore, Pitts was given an opportunity to resubmit the
grievance to state more clearly his concerns, but he did not
resubmit the grievance.
Thus, Pitts did have available
administrative remedies but he chose not to pursue them further.
Accordingly, Grievance No. 246243 was not properly
exhausted because Pitts did not file an appeal.
Grievance
No. 246236 was not properly exhausted because Pitts failed to
sign the acknowledgement of receipt forms for the grievance
responses.
As such, summary judgment is granted in favor of
Silva and Kami as to the portions of Pitts’s claims arising from
Grievance No. 246243 and Grievance No. 246236.
17
Case 1:20-cv-00431-LEK-KJM Document 141 Filed 09/28/22 Page 18 of 21
4.
PageID.777
Summary
Pitts failed to properly exhaust all of his grievances
related to his mail.
Accordingly, summary judgment is granted
in favor of Silva and Kami as to Count IV and in favor of Silva
as to Count V.
B.
Inadequate Medical Treatment Grievance
Pitts alleges Seaton-Brisette denied him medical care
after Pitts was involved in an altercation with another inmate
on July 9, 2020.
See Second Amended Complaint at 15-16.
On
July 29, 2020, Grievance No. 241843 was denied as untimely
because it was not filed within fourteen calendar days from the
date of the incident.
See Laux Decl., Exh. C-2.
Although it is
unclear if the acknowledgement of receipt form for the response
to Grievance No. 241843 was for the initial grievance or the
resubmission of the grievance, Pitts did not sign the
acknowledgement of receipt form for the denial of Grievance
No. 241843.
See id., Exh. C-3.
Pitts argues the Moving Defendants’ Exhibit C-2 is
“fictitious” and “phony” and Grievance No. 241843 was not
returned to him.
See Mem. in Opp. at 4.
Although “[t]he court
must ‘view the facts and draw reasonable inferences in the light
most favorable to [Pitts as] the [non-moving] party[,]’” see
Weil v. Citizens Telecom Servs. Co., 922 F.3d 993, 1002 (9th
Cir. 2019) (some alterations in Weil) (quoting Scott v. Harris,
18
Case 1:20-cv-00431-LEK-KJM Document 141 Filed 09/28/22 Page 19 of 21
PageID.778
550 U.S. 372, 378, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007)),
Pitts does not provide any evidence to suggest that the return
notice and the unsigned acknowledgment of receipt form for the
response to Grievance No. 241843 are inauthentic.
Pitts further
argues Grievance No. 241843 was timely because he resubmitted
the grievance to correct the date of the altercation.
in Opp. at 4.
See Mem.
However, Pitts’s resubmission of the grievance
did not change the fact that Grievance No. 241843 was untimely.11
Although Pitts states he did not receive a response for the
denial of Grievance No. 241843, an IGS stated in the response
for Grievance No. 242570 that Grievance No. 241843 was responded
to.
See Laux Decl., Exh. C-5 (“All grievances listed were
responded to. . . .
After processing several of your grievances
I am seeing a trend of claims to have not received responses.
I
will be looking into solutions to remedy this issue, but as it
appears you are indeed receiving them.”).
Moreover, Pitts
submitted Grievance No. 246590, which appealed the denial of
Grievance No. 242570.
See Laux Decl., Exh. C-5.
Pitts’s
submission of Grievance No. 246590 implies that he received a
response to Grievance No. 241843.
It can be reasonably inferred from the record that, when
reviewing Exhibit C-1, the staff understood the date of
December 9, 2020 to be a mistaken reference to July 9, 2020, and
July 9 was more than fourteen days before July 26.
11
19
Case 1:20-cv-00431-LEK-KJM Document 141 Filed 09/28/22 Page 20 of 21
PageID.779
Pitts contends he exhausted Grievance No. 241843
because his medical issues were resolved.
5-6.
See Mem. in Opp. at
“The Ninth Circuit has made it clear that ‘a prisoner need
not press on to exhaust further levels of review once he has
either received all “available” remedies at an intermediate
level of review or been reliably informed by an administrator
that no remedies are available.’”
Rodenhurst v. State of
Hawai`i, Civ. No. 08-00396 SOM-LEK, 2009 WL 2365433, at *5 (D.
Hawai`i July 30, 2009) (quoting Brown v. Valoff, 422 F.3d 926,
935 (9th Cir. 2005)).
Here, Pitts received a letter signed on
September 24, 2020 stating that, as of Pitts’s September 18,
2020 clinic visit, “[a]ll of [his] medical issues have been
addressed at that time.”
[Mem. in Opp., Exh. A.]
But, Pitts
submitted Grievance No. 246590 to appeal Grievance No. 241843,
[Laux Decl., Exh. C-6,] which suggests that Pitts was still
pursuing available remedies related to Grievance No. 241843.
Grievance No. 246590 was denied, and Pitts was informed that he
could resubmit a corrected appeal, but he failed to resubmit a
corrected appeal.
See Moving Defs.’ CSOF at ¶¶ 18–19; Pitts’s
CSOF at ¶¶ 18–19; Laux Decl., Exh. C-7 (response to Pitts from
E. Loredo, IGS, dated 11/12/20, regarding Grievance No. 246590).
Pitts’s argument is therefore unpersuasive.
Because Pitts did
not properly exhaust his administrative remedies for Grievance
20
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PageID.780
No. 241843, summary judgment is granted in favor of SeatonBrisette as to Count III.
CONCLUSION
On the basis of the foregoing, the Moving Defendants’
Motion for Summary Judgment Regarding Failure to Exhaust
Administrative Remedies, filed on February 4, 2022, is HEREBY
GRANTED.
Summary judgment is granted in favor of Seaton-
Brisette, Silva, and Kami as to all of Pitts’s claims against
them.
There being no remaining claims against Seaton-Brisette,
Silva, and Kami, the Clerk’s Office is DIRECTED to terminate
them as parties on October 13, 2022, unless Pitts files a motion
for reconsideration of this Order by October 12, 2022.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 28, 2022.
JOSEPH PITTS VS. NOLAN ESPINDA, ET AL; CVG 20-00431 LEK-KJM;
ORDER GRANTING THE MOVING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT REGARDING FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
21
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