Pitts v. Harrington

• Decision Date: 27 August 2021
• Docket Number: CIVIL 21-00249 DKW-KJM
• Parties: JOSEPH PITTS, #A0259019, Plaintiff, v. SCOTT HARRINGTON, Defendant.
• Court: U.S. District Court — District of Hawaii

JOSEPH PITTS, #A0259019, Plaintiff, v. SCOTT HARRINGTON, Defendant.

CIVIL No. 21-00249 DKW-KJM

United States District Court, D. Hawaii

August 27, 2021

ORDER DISMISSING FIRST AMENDED COMPLAINT WITH PARTIAL LEAVE TO AMEND

Derrick K. Watson United States District Judge

Before the Court is pro se Plaintiff Joseph Pitts' First Amended Prisoner Civil Rights Complaint (“FAC”) brought pursuant to 42 U.S.C. § 1983. ECF No. 10. Pitts alleges that Defendant Scott Harrington, the warden at the Halawa Correctional Facility (“HCF”), violated the First, Sixth, and Fourteenth Amendments to the United States Constitution by issuing a memorandum that limits Pitts' “legal access” to thirty minutes a day. For the following reasons, the FAC is DISMISSED with partial leave to amend.

I. SCREENING

The Court is required to conduct a pre-Answer screening of any case in which a prisoner seeks redress from a governmental entity, or officer or employee of a governmental entity, or in which a plaintiff proceeds in forma pauperis. 28 U.S.C §§ 1915(e)(2), 1915A(a). During this screening, the Court must dismiss any complaint, or any portion thereof, that is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks damages from defendants who are immune from suit. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) (noting that 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) “are directed at screening out meritless suits early on”); see also Harris v. Harris, 935 F.3d 670, 675 (9th Cir. 2019) (describing screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a)-(b)).

In determining whether a complaint or any portion thereof should be dismissed for failure to state a claim under 28 U.S.C. §§ 1915(e)(2)(B) or 1915A(b), the Court applies the same standard as that under Federal Rule of Civil Procedure 12(b)(6) (“Rule 12”). 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); Byrd v. Phoenix Police Dep't, 885 F.3d 639, 642 (9th Cir. 2018) (per curiam). A claim is “plausible” when the facts alleged support a reasonable inference that the plaintiff is entitled to relief from a specific defendant for specific misconduct. See Iqbal, 556 U.S. at 678. Although this plausibility standard does not equate to a “probability requirement, ” “it asks for more than sheer possibility that a defendant has acted unlawfully.” Id.; see also Dent v. Nat'l Football League, 968 F.3d 1126, 1130 (9th Cir. 2020) (same).

Rule 12 is read in conjunction with Federal Rule of Civil Procedure 8(a) (“Rule 8”) 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)). Although Rule 8 does not require detailed factual allegations, “it demands more than an unadorned the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citation omitted). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (citation omitted). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted) (brackets in original); see also Woods v. U.S. Bank N.A., 831 F.3d 1159, 1162 (9th Cir. 2016) (same).

The Court construes pro se litigants' pleadings liberally and affords them the benefit of any doubt. See Byrd, 885 F.3d at 642. Liberal construction of a pro se civil rights complaint, however, “may not supply essential elements of the claim that were not initially pled.” Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014) (internal quotation marks and citation omitted). Nor do district court judges have an “obligation to act as counsel or paralegal to pro se litigants.” Pliler v. Ford, 42 U.S. 225, 231 (2004); see also Eblacas v. Agbulos, Civ. No. 18-00376 DKW-RLP, 2018 WL 5621954, at *2 (D. Haw. Oct. 30, 2018) (“While the court construes [the plaintiff's] allegations liberally and affords him the benefit of any doubt, it will not speculate about [the plaintiff's] claims, and has no obligation to act as counsel or paralegal to pro se litigants.” (internal quotation marks and citation omitted)).

The Court cannot dismiss a pro se litigant's pleading without leave to amend unless it is absolutely clear that the deficiencies of the complaint cannot be cured by amendment. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (per curiam). Before dismissing a pro se complaint, the Court must provide the litigant with notice of the deficiencies in his complaint “to ensure that the litigant uses the opportunity to amend effectively.” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (internal quotation marks and citations omitted).

II. BACKGROUND^[1]

Pitts is currently incarcerated at the HCF. ECF No. 10 at 4; see also VINE, https://www.vinelink.com/classic/#/home/site/50000 (follow “Find an Offender, ” then enter “Pitts” in “Last Name” field and “Joseph” in “First Name” field) (last visited Aug. 18, 2021). He is awaiting retrial in State v. Pitts, No. 1PC091000097 (Haw. 1st Cir. Ct.).^[2] See Hawaii State Judiciary, https://www.courts.state.hi.us/ (follow “eCourt Kokua*, ” select “Click Here to Enter eCourt* Kokua, ” select “Case Search, ” and enter “1PC091000097” in “Case ID or Citation Number” field) (last visited Aug. 18, 2021). Pitts is represented in state court by his court-appointed counsel, John Schum, Esq. See Pitts, 1PC091000097, Dkt. No. 580.

Pitts filed his original Complaint on May 26, 2021. ECF No. at 1. He alleged that Warden Harrington and another prison official violated the First, Sixth, and Fourteenth Amendments by instituting a policy that limited inmates to thirty minutes each day for legal telephone calls.^[3] Id. at 5-10.

The Court issued an Order Dismissing Complaint with Partial Leave to Amend on July 14, 2021. ECF No. 4. To the extent Pitts sought money damages from prison officials in their official capacities, the Court dismissed with prejudice those claims because they were barred by the Eleventh Amendment. Id. at 8-9. The Court dismissed Pitts' First Amendment claims because Pitts failed to identify a nonfrivolous legal claim that was frustrated or impeded, and he failed to allege that a prison official took some adverse action against him because of his protected conduct. Id. at 9-12. The Court dismissed Pitts' Sixth Amendment claims because he did not plausibly allege that his access to counsel was unreasonably burdened, and he failed to allege that a prison official improperly interfered with his confidential relationship with counsel. Id. at 12-16. The Court dismissed Pitts' Fourteenth Amendment claim because he failed to plausibly allege that the telephone policy amounted to punishment. Id. at 16-18. Finally, the Court explained that Pitts could not state a claim under 42 U.S.C. § 1983 based on Department of Public Safety policies. Id. at 18. The Court therefore dismissed the Complaint with partial leave to amend.

Pitts filed the FAC on August 13, 2021, naming Warden Harrington as the only Defendant. ECF No. 10. Pitts alleges that he experienced “no restrictions on the phone (legal or personal)” during previous periods of incarceration at the Oahu Community Correctional Center. ECF No. 10 at 4. Upon his transfer to the HCF, however, Pitts was subject to Warden Harrington's May 28, 2021 memorandum that “restrict[ed] [his] legal access to thirty minutes per day.” Id. Pitts again alleges that Warden Harrington's memorandum “infringe[d] on [his] ability to litigate[, ] access attorneys[, and] assist in his own criminal defense[.]” Id. at 5. According to Pitts, on June 1, 2020, Schum sent an e-mail to a prison official stating that Pitts should be treated as a pretrial detainee because his conviction had been set aside. ECF No. 10-2 at 1. As a result, Schum further stated that Pitts should receive additional time for legal calls. Id. Pitts seeks declaratory and injunctive relief, costs, and damages against Warden Harrington in his individual and official capacities. ECF No. 10 at 1, 6.

Pitts also has a second civil rights complaint pending in this district.^[4] ECF No. 10 at 3; see Pitts v. Espinda, Civ. No. 20-00431 LEK-KJM (D. Haw.). Pitts is representing himself in that matter.

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); Park v. City & County of Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020). Section 1983 requires a connection or link between a defendant's actions and the plaintiff's alleged deprivation. See Monell v Dep't of Soc. Servs., 436 U.S. 658, 692 (1978); Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008) (“In a § 1983 action, the plaintiff must also demonstrate that the defendant's conduct was the actionable cause of the claimed injury.” (citation omitted)). “‘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...