Pitts v. Espinda et al
Filing
8
ORDER DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE TO AMEND re 1 - Signed by JUDGE LESLIE E. KOBAYASHI on 11/6/2020. (1) Pitts' claims in Counts IV and V against Silva, Kami, Jesse, Espinda, Altaris, Sequie ra, and Doe Defendants based on the handling of his incoming legal mail and outgoing mail may proceed. (2) Pitts' Fourteenth Amendment claims in Counts II and III against Williamson, Uedoi, Fernando, and Levi based on his adjustment he arings may proceed. (3) Pitts' claims for damages against official capacity Defendants are DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1). (4) Pitts' request for a transfer to anothe r facility is DENIED. (5) Pitts' remaining retaliation, access to the courts, threat to safety, denial of medical care, conditions of confinement, and state law claims are DISMISSED with leave granted to amend. Pitts may file an amend ed pleading that cures the noted deficiencies in these claims, if possible, on or before December 7, 2020. (6) IN THE ALTERNATIVE, Pitts may notify the court in writing on or before December 7, 2020 , tha t he elects to proceed with his First Amendment claims in Counts IV and V against Silva, Kami, Jesse, Espinda, Altaris, Sequiera, and Doe Defendants based on the handling of his incoming legal mail and outgoing mail, and his Fourteenth Amendment cl aims in Counts II and III against Williamson, Uedoi, Fernando, and Levi based on his adjustment hearings. If Pitts fails to file either an amended pleading or a notice of election, the Court will direct the Complaint be served as limited by this Order. (7) The Clerk is DIRECTED to send Pitts a prisoner civil rights complaint form so that he may comply with the directions of this Order if he elects to file an amended pleading. (emt, )< center>COURT'S CERTIFICATE of Service - Joseph Pitts served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on November 6, 2020. A blank prisoner civil rights complaint form shall be included in the mailing to Mr. Pitts.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JOSEPH PITTS, #A0259019,
Plaintiff,
v.
Civ. No. 20-00431 LEK-KJM
ORDER DISMISSING COMPLAINT
IN PART WITH PARTIAL LEAVE TO
AMEND
NOLAN ESPINDA, et al.,
Defendants.
ORDER DISMISSING COMPLAINT
IN PART WITH PARTIAL LEAVE TO AMEND
Before the Court is pro se Plaintiff Joseph Pitts’ (“Pitts”) prisoner civil rights
complaint asserting claims under 42 U.S.C. § 1983 and state law.1 ECF No. 1.
Pitts alleges that Defendants, officials of the Department of Public Safety (“DPS”)
and Oahu Community Correctional Center (“OCCC”),2 violated the law during his
1
Section 28 U.S.C. § 1343(a)(3) grants this Court jurisdiction to consider Pitts’ claims under 42
U.S.C. § 1983, and 28 U.S.C. § 1367 grants the Court supplemental jurisdiction over all other
claims that are “so related to claims in the action . . . that they form part of the same case or
controversy[.]” Although Pitts cites “28 U.S.C. 1997(d)” as an additional basis of jurisdiction,
there is no such section. To the extent Pitts also cites 42 U.S.C. § 1981 (prohibiting racial
discrimination by private actors), and 42 U.S.C. § 1986 (authorizing a remedy against state
actors who have negligently failed to prevent a conspiracy that would be actionable under
42 U.S.C. § 1985), those provisions are irrelevant based on Pitts factual allegations. Likewise,
Chapter 353 of the Hawaiʻi Revised Statutes and 18 U.S.C. § 3626 (titled “Appropriate remedies
with respect to prison conditions”) are not bases for jurisdiction in this court.
2
Pitts names in their individual and official capacities Nolan Espinda, Francis Sequiera, Caesar
Altaris, Lei Silva, Calvert Williamson, Ahn Uedoi, Urita Levi, Jessica Ashley Fernando,
Sergeant Anderson, Psychologist Hashimoto, Psychologist Micah, Mail Clerk Jesse, ACO Kami,
current pretrial confinement at OCCC. For the following reasons, the Complaint is
DISMISSED in part with partial leave granted to amend.
I. STATUTORY SCREENING
The Court is required to screen all in forma pauperis prisoner pleadings
against government officials pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a).
See Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018). Claims or
complaints that are frivolous, malicious, fail to state a claim for relief, or seek
damages from defendants who are immune from suit must be dismissed. See
Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc); Rhodes v.
Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010).
Screening under 28 U.S.C. §§ 1915(e)(2) and 1915A(a) involves the same
standard of review as that used under Federal Rule of Civil Procedure 12(b)(6).
See Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Under
this standard, a complaint must “contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal quotation marks and citation omitted). A claim is
ten unidentified “mailroom staff,” and ten other unidentified defendants. See ECF No. 1 at
PageID # 1–2. Pitts does not mention, however, Hashimoto or Micah in any of his factual
allegations. Any claims against them are DISMISSED with leave granted to amend. Although
the Court granted Pitts’ motion to add Dr. Gavin Takenaka and Amy Jodar as defendants, see
ECF Nos. 5, 6, Pitts does not say how any of his factual allegations relate to them. Any claims
against Takenaka and Jodar are also DISMISSED with leave granted to amend.
2
“plausible” when the facts alleged support a reasonable inference that the plaintiff
is entitled to relief from a specific defendant for specific misconduct. See id.
Rule 12 is read in conjunction with Rule 8(a)(2) when screening a
complaint; Rule 8 “requires only ‘a short and plain statement of the claim showing
that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation
omitted). The “mere possibility of misconduct,” or an “unadorned, the
defendant-unlawfully-harmed-me accusation” falls short of meeting this
plausibility standard. Id. at 678–79 (citations omitted); see also Moss v. U.S.
Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
Pro se litigants’ pleadings must be liberally construed and all doubts should
be resolved in their favor. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(citations omitted). The Court must grant leave to amend if it appears the plaintiff
can correct the defects in the complaint. See Lopez, 203 F.3d at 1130. When a
claim cannot be saved by amendment, dismissal with prejudice is appropriate. See
Sylvia Landfield Tr. v. City of Los Angeles, 729 F.3d 1189, 1196 (9th Cir. 2013).
3
II. BACKGROUND3
Pitts is a pretrial detainee at OCCC. On October 7, 2020, the court received
his five-count Complaint. ECF No. 1.
In Count I, Pitts alleges a range of violations by Espinda, Sequiera, Altaris,
Anderson, and ten unnamed defendants. See ECF No. 1 at PageID # 5. Pitts
generally claims that these Defendants: (1) failed to train adequately staff on how
to care for inmates with mental health issues; (2) failed to protect inmates from
“harm, abuse, denial of food, [and] denial of water”; (3) failed to “operate,
monitor, and administrate” properly staff in the mental health module; (4) failed to
“stop, curb, and/or eradicate” the “physical abuse, food deprivations and violence”
against inmates with mental health issues; (5) intentionally decided not to install
more security cameras at OCCC; (6) failed to establish policies and procedures “to
address and correct the repeated constitutional violations at OCCC”; (7) allowed
existing policies and procedures to remain in place; and (8) consciously
disregarded “the risk to inmates[’] safety, well being[,] and denial of human
rights.” Id. In support of these claims, Pitts submits a summary of alleged
mistreatment experienced by other OCCC inmates.4 Id. at PageID # 6–11.
3
Pitts’ factual allegations are accepted as true. See Nordstrom v. Ryan, 762 F.3d 903, 908 (9th
Cir. 2014).
4
Although Pitts briefly alleges in Count I that he faced harm at OCCC because he had submitted
“numerous complaints” and “numerous grievances,” he had been attacked “more times that he
can list,” and prison officials stopped and interfered with his mail, and “impede[d] his
4
In Count II, Pitts alleges that Williamson and Uedoi violated his rights
during a February 10, 2020 adjustment hearing.5 Id. at PageID # 12–13. During
the hearing, Pitts was charged with and found guilty of fighting with another
person. Id. According to Pitts, two gang members had attacked him “in retaliation
for his complaints and grievances against [OCCC].” Id. Pitts claims that he acted
in self-defense. Id. Pitts asserts that he “is a target” and he “has an active hit on
his life[.]” Id. at PageID # 13. According to Pitts, he asked to call two witnesses
who would have corroborated his version of events, but they were not called
during the hearing. Id. Pitts also claims that he requested surveillance camera
footage, but he was not allowed to see it and it was not presented during the
hearing. Id.
In Count III, Pitts alleges that his rights were violated also during a July 9,
2020 adjustment hearing. Id. at PageID # 14–15. During this hearing, Pitts was
charged with and found guilty of assaulting a person without a weapon or
dangerous instrument. Id. at PageID # 14. Pitts claims that he was fighting with
communications with the courts and outside world,” ECF No. 1 at PageID # 8, the same claims
are more fully developed in the other Counts of his Complaint. The Court therefore considers
them there.
5
At various points in Count II, Pitts describes Sergeant Defiesta’s involvement with the
February 10, 2020 adjustment hearing. Defiesta, however, is not named as a defendant. Pitts
also claims that Sergeant Heick moved a gang member into his cell after he complained about
Heick. Id. at PageID # 13. Pitts does not name Heick as a defendant.
5
another inmate in OCCC’s kitchen when Officer Lamie (who is not named as a
defendant) ordered the inmates to move into a cell, where the inmates were locked
inside. Id. Pitts asked to call two witnesses, but they were not called during the
hearing. Id. Pitts also claims that he requested surveillance camera footage that
would have shown where the fight began, where it ended, and the location of
correctional officers at the time, but the video was not reviewed during his hearing.
Id. Pitts further claims that he was not allowed to provide a written statement in
his defense. Id.
In Count IV, Pitts alleges that Silva, Kami, Jesse, and other unidentified
defendants opened his properly marked legal mail outside his presence, delayed his
outgoing mail, and delayed or returned his incoming personal mail. Id. at PageID
# 16–18. Pitts claims that properly marked legal mail from an attorney was opened
outside his presence on January 31, 2020, February 1, 2020, and September 5,
2020.6 Id. at 17–18. Pitts also claims that outgoing legal mail he had given to
prison officials on August 12, 2020, was not mailed until August 25, 2020, and a
habeas petition he had provided to prison officials on September 3, 2020, was not
mailed until September 9, 2020. Id. at PageID # 18. Pitts further claims that some
of his incoming personal mail was returned as undeliverable. Id. at PageID # 17.
6
Although Pitts also alleges that prison officials opened mail from an attorney on February 7,
2020, he does not claim that this mail was properly marked as legal mail. See ECF No. 1 at
PageID # 16.
6
In Count V, Pitts alleges that Espinda, Altaris, Sequiera, Silva, and other
unidentified defendants: (1) failed to train adequately and supervise mailroom
staff; (2) failed to protect him from retaliation and reprisal; (3) failed to protect his
constitutional rights; (4) failed to enforce mailroom policies and procedures;
(5) failed to address and correct “repeated violations of mail procedures and
adjustment hearing procedures”; and (6) consciously disregarded risks to his rights.
Id. at PageID # 19.
Pitts asks for: (1) surveillance cameras throughout OCCC, (2) unspecified
“changes” to protect inmates and remodeled sinks in certain cells; (3) Anderson to
be reassigned or prosecuted; (4) the guilty findings from his two adjustment
hearings to be expunged; (5) immediate transfer to the Federal Detention
Center-Honolulu (“FDC”); (6) outside medical care for “broken disfigured
fingers”; and (7) compensatory damages. Id. at PageID # 21.
III. DISCUSSION
A. Legal Framework for Claims under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege: (1) that a
right secured by the Constitution or laws of the United States was violated, and
(2) that the alleged violation was committed by a person acting under color of state
law. See West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 requires a
connection or link between a defendant’s actions and the plaintiff’s alleged
7
deprivation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978); Rizzo v.
Goode, 423 U.S. 362, 371–72, 377 (1976); May v. Enomoto, 633 F.2d 165, 167
(9th Cir. 1980). “A person ‘subjects’ another to the deprivation of a constitutional
right, within the meaning of section 1983, if he does an affirmative act, participates
in another’s affirmative acts or omits to perform an act which he is legally required
to do that causes the deprivation of which complaint is made.” Johnson v. Duffy,
588 F.2d 740, 743 (9th Cir. 1978) (citation omitted). Thus, a plaintiff must allege
that he suffered a specific injury as a result of a particular defendant’s conduct and
must affirmatively link that injury to the violation of his rights.
B. Eleventh Amendment Immunity
“The Eleventh Amendment bars suits for money damages in federal court
against a state, its agencies, and state officials acting in their official capacities.”
Aholelei v. Dep’t of Pub. Safety, 488 F.3d 1144, 1147 (9th Cir. 2007) (citations
omitted); see Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-03
(1984). It does not bar official-capacity suits for prospective relief to enjoin
alleged ongoing violations of federal law. See Wolfson v. Brammer, 616 F.3d
1045, 1065-66 (9th Cir. 2010); see also Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 n.10 (1989). Nor does it bar suits for damages against state officials in
their personal capacities. See Hafer v. Melo, 502 U.S. 21, 30-31 (1991); Porter v.
Jones, 319 F.3d 483, 491 (9th Cir. 2003).
8
Pitts names all Defendants in both their official and individual capacities.
See ECF No. 1 at PageID # 1. To the extent Pitts seeks monetary damages from
Defendants in their official capacities, see id. at PageID # 21, those claims are
barred by the Eleventh Amendment and DISMISSED with prejudice. Pitts’
request for monetary damages from Defendants in their individual capacities and
prospective, injunctive relief from Defendants in their official capacities, see id.,
are not barred by the Eleventh Amendment.
C. Transfer to the Federal Detention Center-Honolulu
Pitts asks the Court to order his transfer to FDC. ECF No. 1 at PageID # 2.
It is well established that “an inmate has no justifiable expectation that he will be
incarcerated in any particular prison within a State[.]” Olim v. Wakinekona, 461
U.S. 238, 245 (1983) (footnote omitted). Courts routinely conclude, therefore, that
they lack the authority to transfer an inmate from one facility to another. See, e.g.,
Pitts v. Espinda, CIV. NO. 15-00483 JMS-KJM, 2018 WL 1403881, at *3 (D.
Haw. Mar. 20, 2018) (“Plaintiff has no legal right to be transferred to the FDC,
Waiawa, Kulani, or any other prison facility.”); Kealoha v. Espinda, No. 20-00323
JAO-RT, 2020 WL 5602837, at *4–7 (D. Haw. Sept. 18, 2020) (concluding that
court lacked the authority to transfer pretrial detainee to FDC); Moore v. Gipson,
Case No. 1:13-cv-01820-DAD-BAM (PC), 2017 WL 2992529, at *3 (E.D. Cal.
Apr. 19, 2017) (“[T]he Court does not have the authority to compel Plaintiff’s
9
transfer from Corcoran State Prison to Kern Valley State Prison or any other
institution.”), adopted by sub nom. Moore v. Casas, Case No. 1:13-cv-01820DAD-BAM, 2017 WL 2984353 (E.D. Cal. July 13, 2017); Mullins v. Wenciker,
No. 1:07-CV-00108 LJO DLB P, 2007 WL 3053320, at *3 (E.D. Cal. Oct. 19,
2007) (“This court has no authority to order that state prison officials transfer
prisoners to other facilities.”), adopted by 2007 WL 4591673 (E.D. Cal. Dec. 28,
2007). Pitts’ request for an order requiring Defendants to transfer him to another
facility is DENIED.
D. Standing
In Count I, Pitts makes various allegations based on injuries allegedly
suffered by other inmates at OCCC. See ECF No. 1 at PageID # 5–11. Pitts does
not have standing to assert these claims.
“[T]he question of standing is whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422
U.S. 490, 498 (1975). “This inquiry involves both constitutional limitations on
federal-court jurisdiction and prudential limitations on its exercise.” Id.
Three elements make up the “irreducible constitutional minimum of
standing”: (1) injury in fact; (2) a causal connection between the injury and the
conduct complained of; and (3) a likelihood that the injury will be redressed by a
favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 55, 560-61 (1992);
10
Index Newspapers LLC v. U.S. Marshals Serv., No. 20-35739, 2020 WL 5988501,
at *4 (9th Cir. Oct. 9, 2020). The party invoking federal jurisdiction bears the
burden of establishing these elements. Lujan, 504 U.S. at 561.
Regarding prudential limitations, the Supreme Court “has held that when the
asserted harm is a ‘generalized grievance’ shared in substantially equal measure by
all or a large class of citizens, that harm alone normally does not warrant exercise
of jurisdiction.” Warth, 422 U.S. at 499. Moreover, even when the plaintiff has
alleged injury sufficient to meet the “case or controversy” requirement, the
Supreme Court “has held that the plaintiff generally must assert his own legal
rights and interests, and cannot rest his claim to relief on the legal rights or
interests of third parties.” Id.; Ray Charles Found. v. Robinson, 795 F.3d 1109,
1118 (9th Cir. 2015) (“[C]ourts have treated the limitation on third-party standing
as a prudential principle that requires plaintiffs to assert their own legal rights.”).
In Count I, Pitts makes a variety of allegations against Espinda, Sequiera,
Altaris, and Anderson. See ECF No. 1 at PageID # 5. He claims that they: (1)
failed to train adequately staff on how to care for inmates with mental health
issues; (2) failed to protect inmates from “harm, abuse, denial of food, [and] denial
of water”; (3) failed to “operate, monitor, and administrate” properly staff in the
mental health module; (4) failed “stop, curb, and/or eradicate” the “physical abuse,
food deprivations and violence” against inmates with mental health issues; (5)
11
intentionally decided not to install more security cameras; (6) failed to establish
policies and procedures “to address and correct the repeated constitutional
violations at OCCC”; (7) allowed existing policies and procedures to remain in
place; and (8) consciously disregarded “the risk to inmates[’] safety, well being[,]
and denial of human rights.”
Pitts fails, however, to say how he suffered some threatened or actual injury
resulting from the putatively illegal action. Warth, 422 U.S. at 499; Todd v.
Ackley, 551 F. App’x 906, 906 (9th Cir. 2014). For example, Pitts does not allege
that he has mental health issues. Nor does Pitts allege that he was personally
harmed, abused, or denied water by prison officials. Pitts fails, therefore, to show
that he has standing to assert any of these claims. See Schmier v. U.S. Court of
Appeals for Ninth Circuit, 279 F.3d 817, 821 (9th Cir. 2002) (“The party seeking
to invoke the jurisdiction of the federal courts has the burden of alleging specific
facts sufficient to satisfy [standing’s] three elements.”).
At various points, Pitts alleges that other inmates have suffered injuries. For
example, he claims that an officer dragged an elderly inmate down steps, medical
assistants stood by as inmates were assaulted, another officer “stomped” on an
inmate’s head, officers “beat up” “multiple” inmates, and another inmate was
supposedly beaten up. ECF No. 1 at PageID # 6–11. Although Pitts may assert his
own legal rights and interests, he “cannot rest his claim to relief on the legal rights
12
or interests of third parties.” Warth, 422 U.S. at 499; Darring v. Kincheloe, 783
F.2d 874, 877 –78 (9th Cir. 1986) (concluding state prisoner lacked third-party
standing to assert the rights of other inmates). Pitts’ claims in Count I are
DISMISSED for lack of standing with leave granted to amend.
E.
First Amendment Claims
1. Retaliation
Pitts alleges in Counts II, and IV that he was targeted for retaliation because
of complaints and grievances he had filed. ECF No. 1 at PageID # 12, 13, 16. The
First Amendment guarantees a prisoner the right to seek redress of grievances from
prison authorities. Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015).
“Retaliation against prisoners for their exercise of this right is itself a constitutional
violation, and prohibited as a matter of ‘clearly established law.’” Brodheim v.
Cry, 584 F.3d 1262, 1269 (9th Cir. 2009). A retaliation claim has five basic
elements: (1) an assertion that a state actor took some adverse action against an
inmate; (2) because of; (3) that prisoner’s protected 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. Id.
Pitts alleges in Count II that two gang members attacked him “in retaliation
for his complaints and grievances against [OCCC],” and claims there is “an active
hit on his life[.]” Id. at PageID # 12–13. Pitts alleges in Count IV that prison
13
officials in the mailroom retaliated against him because of his grievances and
complaints by opening his incoming legal mail and delaying or returning his
incoming personal mail. Id. at PageID # 16.
Pitts provides insufficient facts, however, to indicate that any Defendant
retaliated against him because of his grievances or complaints. Pitts fails to say
when he submitted his various grievances and complaints, what their contents
were, who processed them, and what the outcomes were. See Latonie v. Mun, No.
13-00317 HG/RLP, 2013 WL 3327942, at *4 (D. Haw. July 2, 2013). He fails,
therefore, to provide sufficient details or a timeline linking his grievances and
complaints to the mistreatment he allegedly experienced at OCCC. Pitts’
retaliation claims in Counts II and IV are DISMISSED with leave granted to
amend.
2. Mail
Pitts alleges in Count IV that Silva, Kami, Jesse, and other unidentified
defendants opened his legal mail without him being present, interfered with his
incoming mail, and delayed his outgoing mail. ECF No. 1 at PageID # 16–18.
Prisoners have a First Amendment right to send and receive mail while
incarcerated. Nordstrom, 856 F.3d at 1271. A prison may adopt regulations which
impinge on an inmate’s constitutional rights, however, “if those regulations are
‘reasonably related to legitimate penological interests.’” Witherow v. Paff, 52 F.3d
14
264, 265 (9th Cir. 1995) (per curiam) (quoting Turner v. Safley, 482 U.S. 78, 89
(1987)). “Legitimate penological interests include security, order, and
rehabilitation.” Witherow, 52 F.3d at 265 (internal quotation marks omitted).
Restrictions on outgoing personal correspondence “must have a closer fit between
the regulation and the purpose it serves than incoming mail restrictions.”
Nordstrom, 856 F.3d at 1273.
The First Amendment also protects a prisoner’s right to be present when his
properly marked legal mail is opened. Hayes v. Idaho Corr. Ctr., 849 F.3d 1204,
1211 (9th Cir. 2017). Prison officials may require legal mail to be “specially
marked as originating from an attorney, with his name and address being given, if
they are to receive special treatment.” Wolff v. McDonnell, 418 U.S. 539, 576
(1974). “Mail from the courts, as contrasted to mail from a prisoner’s lawyer, is
not legal mail.” Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996).
Pitts alleges in Count IV that properly marked legal mail from an attorney
was opened outside his presence on January 31, 2020, February 1, 2020, and
September 5, 2020. Id. at 17–18. Pitts also claims that outgoing legal mail he had
given to prison officials on August 12, 2020, was not mailed until August 2, 2020,
and a habeas petition he had provided to prison officials on September 3, 2020,
was not mailed until September 9, 2020. Id. at PageID # 18. Pitts’ claims based
15
on the alleged opening of his legal mail outside his presence and the alleged delay
in sending his outgoing mail may proceed.
Regarding Pitts’ claim that some of his incoming personal mail was returned
as undeliverable or not delivered at all, id. at PageID # 17, he fails to state a claim.
Pitts fails to say when the various letters were sent and how much time he allowed
for their delivery. He does not say whether the letters were properly addressed and
had adequate postage. Pitts’ claim in Count IV based on the delivery of his
incoming personal mail is DISMISSED with leave granted to amend.
3. Access to the Courts
For each count in his Complaint, Pitts marks a box indicating that he was
denied access to the courts. See ECF No. 1 at PageID # 5, 12, 14, 16, 19. “The
First Amendment guarantees a prisoner . . . a right of meaningful access to the
courts.” Jones v. Williams, 791 F.3d 1023, 1035 (9th Cir. 2015). Claims for the
denial of access to the courts may arise from the hindrance of “a litigating
opportunity yet to be gained” or from the loss of a suit that cannot now be tried.”
Christopher v. Harbury, 536 U.S. 403, 412-15 (2002). As a threshold requirement
to an access to the courts claim, a plaintiff must allege an “actual injury.” Lewis v.
Casey, 518 U.S. 343, 351-53 (1996). An “actual injury” is “actual prejudice with
respect to contemplated or existing litigation, such as the inability to meet a filing
deadline or to present a claim.” Id. at 348 (internal quotation marks and citation
16
omitted). Failure to allege an actual injury to a “‘non-frivolous legal claim’” is
“fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (quoting Lewis,
518 U.S. at 353 & n.4). Because Pitts fails to allege actual injury, his access to the
courts claims are DISMISSED with leave granted to amend.
F. Fourteenth Amendment Claims
1. Adjustment Hearings
Pitts alleges in Counts II and III that he was denied due process during
adjustment hearings on February 10, 2020, and July 9, 2020, respectively. ECF
No. 1 at PageID # 12–15.
Although prisoners may claim the protections of the Due Process Clause, the
full panoply of rights due a defendant in criminal proceedings does not apply to
prison disciplinary proceedings. Wolff, 418 U.S. at 556. “[T]here must be mutual
accommodation between institutional needs and objectives and the provisions of
the Constitution that are of general application.” Id. The Supreme Court has
concluded that when a prisoner faces disciplinary charges, prison officials must
provide the prisoner with: (1) written notice of the claimed violation at least
twenty-four hours before the disciplinary hearing; (2) an opportunity to present
documentary evidence and call witnesses “when permitting him to do so will not
be unduly hazardous to institutional safety or correctional goals”; (3) the
opportunity to seek assistance where the charges are complex or the inmate is
17
illiterate; and (4) a written statement by the factfinders as to the evidence relied on
and reasons for the disciplinary action taken. Id. at 563–70. Regarding the
opportunity to call witnesses, although “[j]ail officials need not provide inmates an
unfettered right to call witnesses, . . . they must make the decision whether to allow
witnesses on a case-by-case basis, examining the potential hazards that may result
from calling a particular person.” Serrano v. Francis, 345 F.3d 1071, 1079 (9th
Cir. 2003). The prison officials must also eventually explain why witnesses were
not allowed to testify. Ponte v. Real, 471 U.S. 491, 497 (1985).
Pitts alleges in Count II that Uedoi and Williamson ignored his request to
call two witnesses during a February 10, 2020 disciplinary hearing, and they never
“articulated or stated why [Pitts’] witnesses were not called[.]” ECF No. 1 at
PageID # 12. Pitts claims in Count III that Fernando, Levi, and Uedoi did not
allow him to call two witnesses or to present a written statement in his defense
during a July 9, 2020 disciplinary hearing. Id. at PageID # 14. Pitts further claims
that he was not allowed to review surveillance video footage in connection with
either disciplinary hearing. Id. at PageID # 12, 14. Pitts’ claims against
Williamson, Uedoi, Fernando, and Levi in Counts II and III related to his February
10, 2020, and July 9, 2020 disciplinary hearings may proceed.
18
2. Conditions of Confinement
Where a pretrial detainee challenges conditions of confinement, such claims
“arise under the Fourteenth Amendment’s Due Process Clause, rather than under
the Eighth Amendment’s Cruel and Unusual Punishment Clause.” Gordon v. Cty.
of Orange, 888 F.3d 1118, 1124 (9th Cir. 2018) (internal quotation marks omitted).
The standard under the Fourteenth Amendment for a pretrial detainee “differs
significantly from the standard relevant to convicted prisoners, who may be subject
to punishment so long as it does not violate the Eighth Amendment’s bar against
cruel and unusual punishment.” Olivier v. Baca, 913 F.3d 852, 858 (9th Cir. 2019)
(citation omitted).
“In evaluating the constitutionality of conditions or restrictions of pretrial
detention that implicate only the protection against deprivation of liberty without
due process of law, . . . the proper inquiry is whether those conditions amount to
punishment of the detainee.” Bell v. Wolfish, 441 U.S. 520, 535 (1979);7 see also
Block v. Rutherford, 468 U.S. 576, 583-85 (1984). “Not every disability imposed
during pretrial detention amounts to ‘punishment’ in the constitutional sense[.]”
Bell, 441 U.S. at 537. “Loss of freedom of choice and privacy are inherent
7
Although Bell considered a claim under the Due Process Clause of the Fifth Amendment, the
same standards apply under the Due Process Clause of the Fourteenth Amendment. See Paul v.
Davis, 424 U.S. 693, 702 n.3 (1976) (“[T]he Fourteenth Amendment imposes no more stringent
requirements upon state officials than does the Fifth upon their federal counterparts.”).
19
incidents of confinement,” and the fact that detention “interferes with the
detainee’s understandable desire to live as comfortably as possible and with as
little restraint as possible during confinement does not convert the conditions or
restrictions of detention into ‘punishment.’” Id.
Absent a showing of an expressed intent to punish by prison officials, “if a
particular condition or restriction of pretrial detention is reasonably related to a
legitimate governmental objective, it does not, without more, amount to
‘punishment.’” Id. at 539. Thus, “[r]estraints that are reasonably related to the
institution’s interest in maintaining jail security do not, without more, constitute
unconstitutional punishment, even if they are discomforting[.]” Id. at 540.
Prison administrators are “accorded wide-ranging deference in the adoption
and execution of policies and practices that in their judgment are needed to
preserve internal order and discipline and to maintain institutional security,” id. at
547, “unless the record contains substantial evidence showing their policies are an
unnecessary or unjustified response to problems of jail security,” Florence v. Bd. of
Chosen Freeholders of Cty. of Burlington, 566 U.S. 318, 322-23 (2012). “[I]n the
absence of substantial evidence in the record to indicate that the officials have
exaggerated their response to these considerations, courts should ordinarily defer to
their expert judgment in such matters.” Bell, 441 U.S. at 540 n.23 (internal
quotation marks omitted).
20
A pretrial detainee’s conditions of confinement claim is governed by a
purely objective standard. See Gordon, 888 F.3d at 1124–25.8 A pretrial detainee
must therefore show that: (1) a particular defendant made an intentional decision
with respect to the conditions under which the pretrial detainee was confined; (2)
those conditions put him at substantial risk of suffering serious harm; (3) the
defendant did not take reasonable available measures to abate that risk, even
though a reasonable officer in similar circumstances would have appreciated the
high degree of risk—making the consequences of the defendant’s conduct obvious;
and (4) by not taking such measures, the defendant caused the detainee’s injuries.
Id.
With respect to the third element, the defendant’s conduct must be
objectively unreasonable, a test that “turns on the facts and circumstances of each
particular case.” Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (internal
quotation marks omitted). “A court must make this determination from the
8
The Ninth Circuit has not expressly extended the objective deliberate indifference standard to
all pretrial detainee conditions of confinement claims, beyond denial of medical care, failure to
protect, and excessive force claims, although Gordon suggests that it will. See Gordon, 888 F.3d
at 1120, 1124 & n.2 (citing Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017) (extending
objective deliberate indifference standard to all pretrial detainee conditions of confinement
claims)); see also Pitts v. Ige, No. 18-00470 LEK-RT, 2019 WL 3294799, at *10 (D. Haw. July
22, 2019) (stating that deliberate indifference claims arising under the Fourteenth Amendment
“are governed by a wholly objective standard”).
21
perspective of a reasonable officer on the scene, including what the officer knew at
the time, not with the 20/20 vision of hindsight.” Id.
a. Failure to Protect
Pitts alleges in Count II that he “has an active hit on his life.” ECF No. 1 at
PageID # 13; see also id. at PageID # 8 (stating that Pitts is “a target,” his “life [is]
in danger,” and he is a “sitting duck”). The elements of a pretrial detainee’s
Fourteenth Amendment failure-to-protect claim against an individual officer are:
(1) the defendant made an intentional decision with respect to the conditions under
which the plaintiff was confined; (2) those conditions put the plaintiff at substantial
risk of suffering serious harm; (3) the defendant did not take reasonable available
measures to abate that risk, even though a reasonable officer in the circumstances
would have appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious; and (4) by not taking such
measures, the defendant caused the plaintiff’s injuries. Castro v. Cty. of L.A., 833
F.3d 1060, 1071 (9th Cir. 2016) (en banc). With respect to the third element, the
defendant’s conduct must be objectively unreasonable, a test that will necessarily
“turn[ ] on the ‘facts and circumstances of each particular case.’” Kingsley, 576
U.S. 397 (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)).
Pitts fails to indicate how any Defendant made an intentional decision with
respect to the conditions at OCCC that put him at substantial risk of suffering
22
serious harm. Nor does he allege that any Defendant failed to take reasonable
measures to abate any such risk. Although Pitts claims that he “has been attacked
more times than he can list,” ECF No. 1 at PageID # 8, he does not explain how
any Defendant put him at substantial risk of being attacked. Nor does he describe
how any Defendant responded to the alleged attacks. Likewise, while Pitts alleges
in that there is an “active hit on his life,” id. at PageID # 13, he has not shown that
any Defendant acted with deliberate indifference to this alleged threat. Indeed,
Pitts acknowledges that he is being housed in the Special Holding Unit (“SHU”),
not the general population. Id. at PageID # 20. This fact undercuts Pitts’ claim
that any prison official was deliberately indifferent to a threat to his safety. Pitts’
failure to protect claims are DISMISSED with leave granted to amend.
b. Denial of Medical Care
Pitts alleges in Count II that he was denied medical care after he was
“attacked and assaulted” by his cell mate, ECF No. 1 at PageID # 13, and in Count
III that he was denied medical care after he got into a fight with another inmate,
id. at PageID # 14. Alleged violations of the right to adequate medical care
brought by pretrial detainees are also evaluated under an objective deliberate
indifference standard. Gordon, 888 F.3d at 1124–25. Under this standard, the
elements of a pretrial detainee’s medical care claim against an individual defendant
under the due process clause of the Fourteenth Amendment are: (1) the defendant
23
made an intentional decision with respect to the conditions under which the
plaintiff was confined; (2) those conditions put the plaintiff at substantial risk of
suffering serious harm; (3) the defendant did not take reasonable available
measures to abate that risk, even though a reasonable official in the circumstances
would have appreciated the high degree of risk involved—making the
consequences of the defendant’s conduct obvious; and (4) by not taking such
measures, the defendant caused the plaintiff’s injuries. Id. at 1125. With respect
to the third element, the defendant’s conduct must be objectively unreasonable, a
test that necessarily turns on the facts and circumstances of each case. Id. “The
mere lack of due care by a state official’ does not deprive an individual of life,
liberty, or property under the Fourteenth Amendment.” Id. (internal quotation
marks and citation omitted).
Regarding Pitts’ allegations in Count II, he does not claim that a Defendant
made an intentional decision that put him at substantial risk of suffering serious
harm. See ECF No. 1 at PageID # 13. Although Pitts claims that Sergeant
Defiesta was the “Sgt. on duty” when he was attacked by two gang members,
Defiesta is not named as a defendant. Moreover, Pitts does not explain how
Defiesta denied him medical care or why any such denial demonstrates deliberate
indifference.
24
Likewise, to the extent Pitts claims in Count III that he was denied medical
care after he got into a fight with another inmate, none of his factual allegations
relate to a named Defendant. See id. at PageID # 14. Moreover, although Pitts
claims that he could not sleep without pain in his hand and “was denied medical
care for weeks,” he does not say with whom he spoke, what he told them, and how
they responded. Moreover, Pitts acknowledges that he was taken to the medical
unit, provided with ibuprofen and an ice pack, and it was later discovered that there
was a fracture in his hand. Id. at PageID # 14–15. These facts undercut Pitts’
claim that he was denied medical care. Pitts’ denial of medical care claims in
Counts II and III are DISMISSED with leave granted to amend.
c. Conditions of Confinement in the Special Holding Unit
Pitts makes various allegations regarding the conditions he experienced in
the SHU. See ECF No. 1 at PageID # 13, 15. These claims fail at the starting gate,
however, because Pitts fails to link the alleged harm to any Defendant. See
Latonie, 2013 WL 3327942, at *3 (“There can be no liability under § 1983 without
an affirmative link or connection between an individual defendant's actions and the
claimed deprivation.”). Pitts claims based on the conditions in the SHU are
DISMISSED with leave granted to amend.
25
G. Supervisory Liability
Pitts names Espinda, Sequiera, Altaris, and Silva in Count V, id. at PageID #
19. The Defendants held or hold various supervisory roles within DPS or at
OCCC.
“Vicarious liability is inapplicable to . . . § 1983 suits, [and] a plaintiff must
plead that each Government-official defendant, through [his] own individual
actions, has violated the Constitution,” to plead a plausible claim for relief. Iqbal,
556 U.S. at 676; Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (holding
supervisor is liable under 42 U.S.C. § 1983 only on a showing of personal
involvement in the constitutional deprivation or “a sufficient causal connection
between the supervisor’s wrongful conduct and the constitutional violation).
“Each Government official, his or her title notwithstanding, is only liable for his or
her own misconduct.” Iqbal, 556 U.S. at 677. That is, supervisory officials
“cannot be held liable unless they themselves” violate a constitutional right. Id. at
683.
Supervisors “can be held liable for: 1) their own culpable action or inaction
in the training, supervision, or control of subordinates; 2) their acquiescence in the
constitutional deprivation of which a complaint is made; or 3) for conduct that
showed a reckless or callous indifference to the rights of others.” Edgerly v. City
& Cty. of S.F., 599 F.3d 946, 961-62 (9th Cir. 2010) (citing Cunningham v. Gates,
26
229 F.3d 1271, 1292 (9th Cir. 2000)). A plaintiff can state a claim by showing that
the supervisor “participated in or directed the violations, or knew of the violations
and failed to act to prevent them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.
1989), or implemented “a policy so deficient that the policy itself is a repudiation
of constitutional rights and is the moving force of the constitutional violation.”
Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991); see Jeffers v.
Gomez, 267 F.3d 895, 917 (9th Cir. 2001).
Although Pitts does not allege that Espinda, Sequiera, Altaris, or Silva
participated in or directed the alleged violations of his rights, he does claim that
they failed to train adequately and supervise prison officials in the mailroom. ECF
No. 1 at PageID # 19. He also claims that these Defendants failed to enforce
policies and procedures related to the handling of mail and the conduct of
adjustment hearings. Id. These claims may proceed.
H. Doe Defendants
The Federal Rules of Civil Procedure do not authorize or prohibit the use of
fictitious parties, although Rule 10 requires a plaintiff to include the names of all
parties in his complaint. Fed. R. Civ. P. 10(a). Doe defendants are disfavored,
however, because it is effectively impossible for the United States Marshal to serve
an anonymous defendant.
27
A plaintiff may refer to unknown defendants as Defendant John Doe 1, John
Doe 2, John Doe 3, and so on, but he must allege specific facts showing how each
particular Doe Defendant violated his rights. A plaintiff may then use the
discovery process to obtain the names of Doe Defendants and seek leave to amend
to name those defendants, unless it is clear that discovery will not uncover their
identities, or that the complaint will be dismissed on other grounds. See Wakefield
v. Thompson, 177 F.3d 1160, 1163 (9th Cir. 1999) (citing Gillespie v. Civiletti, 629
F.2d 637, 642 (9th Cir. 1980)).
Pitts names John and Jane Doe(s) 1 thru 10 in Counts I and V, but makes no
specific allegations against any specific Defendant regarding his claims. He fails,
therefore, to link any particular allegation to any specific Doe Defendant and
explain how that individual personally violated his civil rights. This is insufficient
to state a claim against any individual Doe Defendant. Pitts is granted leave to
amend Counts I and V to allege specific facts that show how each Doe Defendant
individually participated in his claims and violated his rights. If Pitts successfully
does so, and his amended pleading is not otherwise subject to dismissal, he will be
allowed to pursue early discovery to discover the identities of the Doe Defendants,
and then substitute their names and effect service of his claims as limited herein.
Pitts also names John and Jane Doe(s) 1 thru 10 in Count IV, based on the
handling of his mail. These claims may proceed. Pitts is ultimately responsible for
28
determining the identity of Doe Defendants and then requesting the Court to issue
a Summons and direct service upon them.
I. State Law Claims
On the second page of the Complaint, Pitts says that he is asserting
negligence and intentional infliction of emotional distress claims under Hawaii
law. See ECF No. 1 at PageID # 2. Pursuant to 28 U.S.C. § 1367(a), in any civil
action in which the district court has original jurisdiction, the district court “shall
have supplemental jurisdiction over all other claims in the action within such
original jurisdiction that they form part of the same case or controversy under
Article III,” except as provided in subsections (b) and (c). “[O]nce judicial power
exists under § 1367(a), retention of supplemental jurisdiction over state law claims
under 1367(c) is discretionary.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1000
(9th Cir.1997).
Under Hawaiʻi law, in order to prevail on a negligence claim, a plaintiff is
required to prove the following four elements: (1) a duty, or obligation, recognized
by the law, requiring the defendant to conform to a certain standard of conduct, for
the protection of others against unreasonable risks; (2) a failure on the defendant’s
part to conform to the standard required—that is, a breach of the duty; (3) a
reasonably close causal connection between the conduct and the resulting injury;
29
and (4) actual loss or damage resulting to the interests of another. Molfino v. Yuen,
134 Hawaiʻi 181, 184, 339 P.3d 679, 682 (2014).
The tort of intentional infliction of emotional distress consists of the
following four elements: (1) that the act allegedly causing the harm was intentional
or reckless; (2) that the act was outrageous; (3) that the act caused; (4) extreme
emotional distress to another. Young v. Allstate Ins. Co., 119 Hawaiʻi 403, 429,
198 P.3d 666, 692 (2008).
Because Pitts fails to say which Defendant allegedly violated his rights
under Hawaiʻi law, and how they did so, these claims are DISMISSED with leave
granted to amend.
IV. LEAVE TO AMEND
The Complaint is DISMISSED IN PART with partial leave granted to
amend consistent with the directions in this Order on or before December 7, 2020.
Pitts may not expand his claims beyond those already alleged herein or add new
claims, without explaining how those new claims relate to the claims alleged in the
original Complaint. Claims that do not properly relate to his original pleading are
subject to dismissal.
If he elects to file an amended pleading, Pitts must comply with the Federal
Rules of Civil Procedure and the Local Rules for the District of Hawaii,
particularly LR10.4, which require an amended complaint to be complete itself,
30
without reference to any prior pleading. An amended complaint must be short and
plain, comply with Rule 8 of the Federal Rules of Civil Procedure, and be
submitted on the court’s prisoner civil rights complaint form. An amended
complaint will supersede the preceding complaint. See Ramirez v. County of San
Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015); LR10.4. Claims not realleged in
an amended complaint may be deemed voluntarily dismissed. See Lacey v.
Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).
Pitts is reminded that each count should involve only one issue. As stated on
the court’s prisoner civil rights complaint form, if a claim involves more than one
issue, each issue should be stated in a different count. Moreover, the supporting
facts provided in support of each count should describe exactly what each
Defendant did or did not do to violate Pitts’ rights.
IN THE ALTERNATIVE:
In writing on or before December 7, 2020, Pitts may elect to stand on his
First Amendment claims in Counts IV and V against Silva, Kami, Jesse, Espinda,
Altaris, Sequiera, and Doe Defendants based on the handling of his incoming legal
mail and outgoing mail, and his Fourteenth Amendment claims in Counts II and III
against Williamson, Uedoi, Fernando, and Levi based on his adjustment hearings.
On receipt of written notification, or if Pitts fails to timely submit an amended
31
complaint, the Court will order the Complaint, as limited by this Order served
without further notice.
V. CONCLUSION
(1) Pitts’ claims in Counts IV and V against Silva, Kami, Jesse, Espinda,
Altaris, Sequiera, and Doe Defendants based on the handling of his incoming legal
mail and outgoing mail may proceed.
(2) Pitts’ Fourteenth Amendment claims in Counts II and III against
Williamson, Uedoi, Fernando, and Levi based on his adjustment hearings may
proceed.
(3) Pitts’ claims for damages against official capacity Defendants are
DISMISSED with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b)(1).
(4) Pitts’ request for a transfer to another facility is DENIED.
(5) Pitts’ remaining retaliation, access to the courts, threat to safety, denial of
medical care, conditions of confinement, and state law claims are DISMISSED
with leave granted to amend. Pitts may file an amended pleading that cures the
noted deficiencies in these claims, if possible, on or before December 7, 2020.
(6) IN THE ALTERNATIVE, Pitts may notify the court in writing on or
before December 7, 2020, that he elects to proceed with his First Amendment
claims in Counts IV and V against Silva, Kami, Jesse, Espinda, Altaris, Sequiera,
and Doe Defendants based on the handling of his incoming legal mail and outgoing
32
mail, and his Fourteenth Amendment claims in Counts II and III against
Williamson, Uedoi, Fernando, and Levi based on his adjustment hearings.
If Pitts fails to file either an amended pleading or a notice of election, the
Court will direct the Complaint be served as limited by this Order.
(7) The Clerk is DIRECTED to send Pitts a prisoner civil rights complaint
form so that he may comply with the directions of this Order if he elects to file an
amended pleading.
IT IS SO ORDERED.
DATED: Honolulu, Hawaiʻi, November 6, 2020.
JOSEPH PITTS VS. NOLAN ESPINDA, ET AL; CV 20-00431 LEK-KJM;
ORDER DISMISSING COMPLAINT IN PART WITH PARTIAL LEAVE
TO AMEND
33
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