Davis et al v. Abercrombie et al
Filing
182
ORDER DENYING PLAINTIFF RICHARD KAPELA DAVIS'S AND PLAINTIFF JAMES KANE III'S MOTION FOR PRELIMINARY INJUNCTION re: 75 . Signed by JUDGE LESLIE E. KOBAYASHI on 9/30/2012. [Order follows hearing held 9/17/2012. Minut es: 168 ] (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD KAPELA DAVIS, MICHAEL
HUGHES, DAMIEN KAAHU, ROBERT
A. HOLBRON, JAMES KANE, III,
ELLINGTON KEAWE, KALAl POAHA,
TYRONE KAWAELANILUA'OLE
NA'OKI GALDONES,
Plaintiffs,
vs.
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CIVIL NO. 11-00144 LEK-BMK
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NEIL ABERCROMBIE, in his
official capacity as the
Governor of the State of
Hawaii; TED SAKAI, in his
official capacity as the
Director of the Hawaii
Department of Public Safety;
CORRECTIONS CORPORATIONS OF
AMERICA,
Defendants.
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ORDER DENYING PLAINTIFF RICHARD KAPELA DAVIS'S AND
PLAINTIFF JAMES KANE III'S MOTION FOR PRELIMINARY INJUNCTION
Before the Court is Plaintiff Richard Kapela Davis's
and Plaintiff James Kane Ill's (collectively "Moving Plaintiffs")
Motion for Preliminary Injunction ("Motion"), filed on
April 26,
2012.
[Dkt. no. 75.]
Defendants Neil Abercrombie, in
his official capacity as the Governor of the State of Hawaii,
Jodie Maesaka-Hirata, in her official capacity as Interim
Director of the Hawaii Department of Public Safety, and
Corrections Corporation of America ("CCA", all collectively
"Defendants") filed their memorandum in opposition on
July 30, 2012, and the Moving Plaintiffs filed their reply on
August 31, 2012.
[Dkt. nos. 120, 154.]
This matter came on for an evidentiary hearing on
September 17, 2012.
Appearing on behalf of the Moving Plaintiffs
were Sharla Manley, Esq., and Moses Haia, III, Esq., and
appearing on behalf of Defendants were Rachel Love, Esq., and
April Luria, Esq.
The Court heard live testimony from
Ben Griego, Sarah Blank, and Kaiana Haili.
After careful
consideration of the Motion, supporting and opposing documents,
the testimony at the hearing, and the arguments of counsel, the
Moving Plaintiffs' Motion is HEREBY DENIED for the reasons set
forth below.
BACKGROUND
Plaintiffs Richard Kapela Davis, Michael Hughes,
Damien Kaahu, Robert A. Holbron, James Kane III, and
Elington Keawe (collectively "Plaintiffs") filed their Complaint
for Declaratory and Injunctive Relief and Damages ("Complaint")
in state court on February 7, 2011.
The Complaint sought:
declaratory relief that Defendants violated Plaintiffs'
constitutional and statutory rights to the free exercise of their
religion; injunctive relief preventing Defendants from exercising
policies that caused this injury to Plaintiffs; and damages
pursuant to 42 U.S.C. § 1983.
[Dkt. no. 1-2.]
2
Defendants
removed this action on March 8, 2011 based on federal question
jurisdiction.
[Notice of Removal at
~
3.]
On November 14, 2011, Plaintiffs filed their Amended
Complaint for Damages and for Classwide Declaratory and
Inj uncti ve Relief ("First Amended Complaint") . 1
[Dkt. no. 42.]
The First Amended Complaint alleges the following claims relevant
to the instant Motion:
·violation of Plaintiffs' right to the free exercise of their
religion pursuant to the First and Fourteenth Amendments of
the United States Constitution as to access to sacred items
("Count III");
·violation of Plaintiffs' equal protection rights pursuant to the
Fourteenth Amendment of the United States Constitution as to
access to sacred items ("Count VIII");
·violation of Plaintiffs' right to free exercise of their
religion pursuant to Article I, Section 4 of the Hawai'i
State Constitution as to access to sacred items ("Count
XIII") ;
·violation of Plaintiffs' equal protection rights pursuant to
Article I, Section 5 of the Hawai'i State Constitution as to
access to sacred items ("Count XVIII"); and
·violation of the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc, et seq. ("RLUIPA"), as to
access to sacred items ("Count XXIV") .
I.
Motion
The Moving Plaintiffs are Hawai'i citizens who were
convicted and sentenced for crimes under Hawai'i law.
Plaintiff
1 As of the date of this Order,
Plaintiffs have not yet
filed their motion for class certification.
The Court also notes
that neither Plaintiffs' Second Amended Complaint for Damages and
for Classwide Declaratory and Injunctive Relief nor Plaintiff
Tyrone Kawaelanilua'ole Na'oki Galdones's Supplemental Complaint
for Damages and for Classwide Declaratory and Injunctive Relief,
both filed August 22, 2012, are currently before the Court.
[Dkt. nos. 145, 146.]
3
Davis is an inmate at Saguaro Correctional Center ("Saguaro U),
and Plaintiff Kane is an inmate at Red Rock Correctional Center
("Red Rock U).
Complaint at
Both facilities are in Arizona.
~~
35, 38, 42.]
[First Amended
The instant Motion concerns the
Moving Plaintiffs' "personal Native Hawaiian prayer object[s]u:
Plaintiff Davis's kukui nut, which is one-inch in diameter
("Davis Prayer Object U), which Defendants determined was
contraband; and Plaintiff Kane's turtle pendant ("Kane Prayer
Object U), which Defendants allegedly defiled.
[Motion at 2-3.]
The Motion seeks the following relief:
-an order requiring Defendant Abercrombie and Defendant MaesakaHirata (collectively "State Defendants U) to instruct CCA,
Saguaro, and its agents and employees "to execute all
necessary administrative protocol to restore" the Davis
Prayer Object; [id. at 2;]
-an order requiring CCA, Saguaro, and its agents and employees
"to immediately execute all necessary administrative
protocol to restore u the Davis Prayer Object; [id. at 3;]
-an order requiring the State Defendants to instruct CCA, Red
Rock, and its agents and employees "to execute all necessary
administrative protocol to allowing U Plaintiff Kane to
replace the Kane Prayer Object; [id.;]
-an order requiring CCA, Red Rock, and its agents and employees
"to execute all necessary administrative protocol allowing U
Plaintiff Kane to replace the Kane Prayer Object; [id.;]
-an order requiring Defendants, and their agents and employees,
"to comply with certain and specific protocol as to the
handling and care of Native Hawaiian personal items[;]U
[id. ; ]
-an award of attorneys' fees and costs incurred in bringing the
instant Motion; [id. at 4;] and
-any other appropriate relief [id.].
The Moving Plaintiffs argue that Defendant Abercrombie,
as the State's chief executive, is responsible for the
supervision and management of the state entities and employees
4
that execute the State's prison regulations and procedures and
monitor the out-of-state correctional facilities where State
inmates are serving their sentences.
Defendant Maesaka-Hirata is
the State official responsible for overseeing the implementation
of Haw. Rev. Stat. Chapter 353, including Haw. Rev. Stat. § 35316.2, which governs the transfer of State inmates to out-of-state
facilities
("Out-of-State Inmates").
The Moving Plaintiffs argue
that the State Defendants must guarantee the Out-of-State
Inmates' rights, privileges, and immunities secured by the
Hawai'i State Constitution and the United States Constitution, as
[Mem. in Supp. of Motion at 2-
well as state and federal laws.
3.]
CCA is a private, for-profit corporation that has contracts
with the State to manage Saguaro, Red Rock, and other facilities
where the Out-of-State Inmates are incarcerated pursuant to State
contracts.
[Id. at 3 (citing Motion, Decl. of Andrew B. Sprenger
("Sprenger Decl."), Exh. A (example of contract)).]
Plaintiffs
argue that the federal government provides the State with funds
for the administration of criminal corrections, and these funds
are used to pay CCA for its services.
A.
[Id. at 3.]
Plaintiff Davis Background
Plaintiff Davis states that, in or around June 2006,
while he was incarcerated at Diamondback Correctional Facility
("Diamondback"), an Oklahoma facility managed by CCA, Defendants
5
authorized John Keola Lake, "a revered and well-respected kumu,"2
to meet with him and other practitioners of the Native Hawaiian
religion.
Plaintiff Davis found Kumu Lake's visit to be
"spiritually healing."
[Davis Decl. at
~
24.]
According to
Plaintiff Davis, during Kumu Lake's visit, Defendants "authorized
him to give" Plaintiff Davis the Davis Prayer Object, "a small
cloth pouch containing a kukui nut wrapped in a upena (net), and
tied off with a pupu (shell)."
[Id. at
~
25.]
The Davis Prayer
Object is "a symbol of enlightenment and knowledge with the upena
representing the net that binds and holds us together, and the
pupu symbolizing the three pikos (center)."
[Id.]
Kumu Lake
also told Plaintiff Davis that it was to remind him of Kumu
Lake's teachings and his time with other Native Hawaiian Religion
practitioners, as well as to give him "spiritual comfort" after
Kumu Lake left.
[Id. at
~
26.]
At some point after receiving
the Davis Prayer Object from Kumu Lake, Plaintiff Davis was
transferred to Saguaro.
Plaintiff Davis kept the Davis Prayer Object in his
possession and used it daily in his prayers and chants, and to
gain and sustain his mana.
He also used it in dances, other
religious protocol, and other communal religious activities.
It
was particularly important to him for times when he could not
2 A kumu is a
teacher.
Tengan ("Tengan Decl.") at
~
[Motion, Decl. of Ty Preston Kawika
18.]
6
participate in group religious activities.
It also provided him
with spiritual comfort because it was from his homeland and he is
thousands of miles away from his family,
homeland.
[Id. at
~~
community, culture, and
27-29.]
On February 20, 2012,
"Case Manager Blank" confiscated
the Davis Prayer Object during a routine search of Plaintiff
Davis's cell.
Plaintiff Davis tried to explain its religious
significance, which Blank refused to acknowledge.
to it as a "'rock' or a
Blank referred
'nut,' which [Plaintiff Davis] found
demeaning and insensitive to [his]
religion."
[Id. at
~
30.]
Blank determined that the Davis Prayer Object was contraband, and
gave Plaintiff Davis the choice between destroying it or sending
it away.
Plaintiff Davis mailed it to his attorney for
safekeeping.
[Id. at
~
32; Sprenger Decl. at
~
4, Exh. C
(Disposition of Non-Allowable Property form for "Nut").]
Plaintiff Davis states that the possession of the Davis Prayer
Object "is critical to [his] Native Hawaiian religion," and its
deprivation is causing him "strong spiritual injury" and is
causing him to "grow spiritually weaker by the day[.]"
Decl. at 1 33.]
[Davis
Plaintiff Davis states that "[i]t is [his]
understanding that other religions are allowed to retain
spiritually significant objects as part of their religious
practices such as Christians."
[Id. at
7
~
32.]
Thus, he asserts
that the confiscation of his prayer object "is patently
discriminatory."
B.
[Id.]
Plaintiff Kane Background
Plaintiff Kane states that, in or around 2007, Red Rock
authorized him to possess the Kane Prayer Object, which his
father gave him.
Plaintiff Kane used it daily in his prayers and
chants and to gain and sustain his mana.
It was particularly
important to him when he was not able to participate in group
religious activities.
He kept it in his possession and it
provided him with spiritual comfort because it was from his
homeland and because his father made it.
James Kane, III
("Kane Decl.") at
~~
[Motion, Decl. of
18-20.]
Plaintiff Kane states that, on February 7, 2012, Red
Rock employees conducted a routine search of his cell.
Prayer Object was in his cell during the search.
The Kane
After the
search, Plaintiff Davis discovered that it was broken.
He
asserts that Red Rock employees must have broken it because they
were the only ones in the cell during the search.
[Id. at
~
21.]
Plaintiff Kane states "[i]t is [his] understanding that Red Rock
employees are instructed to respect and avoid mishandling sacred
objects belonging to inmates of other religions."
[Id. at
~
He feels "a strong spiritual injury" because the Kane Prayer
Object is permanently damaged and he believes that its
destruction was discriminatory, "demeaning and insensitive to
8
22.]
[his] religion."
[Id. at
~~
22-23.]
Plaintiff Kane completed an
Informal Resolution form regarding the incident.
[Sprenger
Decl., Exh. D.]
c.
Background Regarding the Native Hawaiian Religion
The Moving Plaintiffs state that they learned their
Native Hawaiian religion through immersion in Hawaiian culture
and religion.
The Native Hawaiian religious and spiritual
beliefs originate and are interpreted from the traditional Native
[Davis Decl. at
Hawaiian culture and community.
Decl. at
~~
4-5.]
~~
4-6; Kane
The Native Hawaiian religion involves, inter
alia, observing rituals and performing activities which
acknowledge 'aumakua and akua (deities) and their relationship
with their kulaiwi (native land).
The recognition of elements of
nature and caring for the environment are critical to their faith
because ancestral spirits and deities live in nature.
people, places, plants, and animals have mana.
loosely translated as spiritual power.
~~
The term mana is
Prayer, chanting, hula,
and other religious protocol produce mana.
10; Kane Decl. at
Thus, all
6-7; Tengan Decl. at
[Davis Decl. at
~~
8-10. 3 ]
~~
7-
At the
hearing, Spiritual Advisor Kaiana Haili testified that the Native
3 Dr.
Tengan is "a practitioner and a scholar of Native
Hawaiian cultural and religious practices."
[Tengan Decl. at
~ 3.]
He is fluent in the Hawaiian language and has a Ph.D. from
the University of Hawai'i at Manoa, Department of Anthropology.
He is also a professor of ethnic studies and anthropology. His
academic career is focused upon the study of Native Hawaiian
culture and religion.
[Id. at ~~ 3-6.]
9
Hawaiian religion is more of a spirituality that comes out of the
native Hawaiians' commune with the environment.
It is familial-
based and the components of it vary from family to family and
from one geographic area to another.
Thus, an object, such as a
kukui nut, may be sacred to one practitioner, but not to another.
Dr. Tengan states that Native Hawaiian religion
practitioners may possess small objects that represent and
manifest the mana of 'aumakua and akua and ancestors.
the items in rituals and protocols of the faith.
or kumu,
A kupuna, kahu,
(respected elders or teachers) may give the practitioner
the object to transmit and perpetuate mana.
~~
They use
18, 21-22.]
[Tengan Decl. at
The object can be a personal item, "kept
exclusively by the practitioner at all times."
[Id. at
~
23.]
A
kukui nut and a turtle-shaped object are examples of such sacred
objects.
The kukui nut represents enlightenment and knowledge,
and is also a manifestation of the deity Lono.
A turtle
symbolizes the deity Kanaloa and represents an 'aumakua of some
Native Hawaiian families.
[Id. at
~~
24-25.]
According to
Dr. Tengan, Native Hawaiian religion practitioners who are denied
possession of their sacred objects suffer spiritual injuries, and
such injuries are exacerbated when the practitioners, such as the
Out-of-State Inmates, are separated from their land, culture, and
family.
[Id. at
~~
29-30.]
10
D.
Argument
The Moving Plaintiffs argue that the deprivation of
their prayer objects violates their rights under the RLUIPA, as
well as their rights to the free exercise of their religion and
to equal protection under the United states Constitution and
under the Hawai'i State Constitution.
at 7.]
[Mem. in Supp. of Motion
The Moving Plaintiffs seek a preliminary injunction
pursuant to Fed. R. Civ. P. 65(a) and (b).
[Id. at 11.]
The Moving Plaintiffs first argue that they are likely
to succeed on their RLUIPA claims.
They emphasize that RLUIPA
claims require a more stringent standard of review for prison
regulations than the standard for constitutional claims set forth
in Turner v. Safley, 482 U.S. 78, 89-90 (1987), and they argue
that RLUIPA has an expanded concept of religious exercise than
that in First Amendment case law.
[Id. at 12-13.]
Plaintiff
Davis and Plaintiff Kane each established through his testimony
that the possession of his respective prayer object is a
religious exercise for purposes of the RLUIPA.
Further,
Dr. Tengan's declaration establishes that their possession is
consistent with the religious and spiritual beliefs of the Native
Hawaiian religion.
The Moving Plaintiffs assert that they are
suffering spiritual injury because of the deprivation of their
prayer objects, and they argue that Defendants cannot prove that
those objects pose any danger to the Moving Plaintiffs, other
11
inmates, or prison staff.
The Moving Plaintiffs emphasize that
Defendants previously allowed them to retain the prayer objects,
recognizing the objects' importance to their faith.
The Moving
Plaintiffs argue that they have established that their beliefs
are sincerely held and that their retention and use of the prayer
objects are religious beliefs.
[Id. at 14-16.]
The Moving Plaintiffs next contend that Defendants'
regulations place a substantial burden on their religious
practice.
They argue that Defendants' restriction of the Davis
Prayer Object forces him to choose "to either engage in religious
activities without his prayer object (and thus preclude their
need to foster their mana) or accept the fact that he cannot
engage in meaningful prayers and chanting practices while in his
cell."
[Id. at 17.]
As to Plaintiff Kane, it is undisputed that
his possession of the Kane Prayer Object was allowed under
Defendants' regulations.
The Moving Plaintiffs argue that the
defilement of the Kane Prayer Object forces him to choose "to
either engage in religious activities without his prayer object
for fear that the Defendants may further damage it or accept the
fact that his use of his pendant runs the risk of being damaged
or defiled again without any recourse."
[Id. at 18.]
All of
these options are unacceptable for the practice of the Moving
Plaintiffs' faith, and this causes them spiritual injury.
The
Moving Plaintiffs therefore contend that Defendants' regulations
12
place a substantial burden on their religious beliefs without a
compelling justification.
[Id. at 17-18.]
Defendants have the burden of establishing that the
prohibition of the Davis Prayer Object and "their determination
that KANE's turtle pendent is not an item of sufficient religious
worth to be respected and handled with care" are supported by a
compelling governmental interest.
[Id. at 18.]
The Moving
Plaintiffs argue that Defendants cannot do so because the objects
at issue do not pose a risk to security or safety.
[Id. at 19.]
The Moving Plaintiffs argue that the refusal to allow them to
keep their prayer objects is evidence of "Defendants' systematic
rejection of the legitimacy of the Native Hawaiian religion."
[Id. at 20.]
The Moving Plaintiffs further argue that there is
no evidence that Defendants considered, and rejected as
ineffective, less restrictive measures of dealing with the Moving
Plaintiffs' prayer objects.
The Moving Plaintiffs therefore
argue that they are likely to succeed on the merits of their
RLUIPA claims.
[Id.]
As to their First Amendment claims, the Moving
Plaintiffs argue that it is beyond dispute that their possession
and use of their prayer objects are protected by the First
Amendment.
They also contend that it is beyond dispute that
Defendants' regulations substantially burden the exercise of
13
their religious beliefs.
[Id. at 21-22.]
The Moving Plaintiffs
argue that all of the Turner factors weigh in their favor.
First, there is no legitimate penalogical interest that
is rationally related to the regulations prohibiting the Moving
Plaintiffs from possessing their prayer objects.
The Moving
Plaintiffs allege that Defendants use their own subjective
determination of what is a religious item to determine what is
contraband, and they systematically deny Native Hawaiian religion
practitioners the right to practice their religion, either by
deeming items contraband or by failing to handle allowable items
with due care.
According to the Moving Plaintiffs, Defendants
"readily deprive" Native Hawaiian religion practitioners of their
sacred objects because Defendants do not afford the Native
Hawaiian religion the same recognition as other religions, such
as Islam or Catholicism.
There is no basis to distinguish
between religions and therefore there is no basis for Defendants'
regulations restricting the possession of objects sacred in the
Native Hawaiian Religion.
[Id. at 23-24.]
Second, the Moving Plaintiffs argue that Defendants'
actions have sUbstantially burdened their practice of their
religion.
[Id. at 24-25.]
As a result of Defendants' denial of
Plaintiff Davis's prayer object and the defilement of Plaintiff
Kane's prayer object, they are "denie[d] all means of [their]
religious expression."
[Id.]
14
Third, the Moving Plaintiffs argue that Plaintiff
Davis's possession of his prayer object will not impact the
guards, inmates, or prison resources, as evidenced by the fact
that Plaintiff Davis possessed the object for years without
incident.
[Id. at 25.]
They also argue that there would be
minimal impact if the Court requires Defendants to adopt
"specific administrative protocol for the respectful treatment of
Native Hawaiian prayer objects during a cell search.
prevent future defilement of KANE (and other's)
objects."
. to
[sic] sacred
[Id. at 25-26.]
Fourth, the Moving Plaintiffs assert that Defendants
allow inmates of other faiths to retain personal religious items
and Defendants treat those items with proper care during cell
searches.
Defendants could apply the same standards to objects
sacred to the Native Hawaiian religion at a de minimis cost to
the prisons.
[Id. at 26.]
The Moving Plaintiffs therefore argue
that they are likely to prevail on the merits of their First
Amendment claims.
As to their Equal Protection claims, the Moving
Plaintiffs argue that, because Defendants allow inmates of other
faiths to retain personal religious items and because Defendants
treat those items with proper care, "no other conclusion can be
drawn except that Defendants have not established the difference
between Defendants' treatment of DAVIS and KANE and their
15
treatment of nther inmates is reasonably related to legitimate
penalogical interests."
[Id. at 28.J
Thus, denying the Moving
Plaintiffs equal religious liberties violates the Equal
Protection Clause of the Fourteenth Amendment and the Moving
Plaintiffs are likely to succeed on the merits of their Equal
Protection claims.
[Id.]
The Moving Plaintiffs argue that the same analyses
apply to their state constitution free exercise and equal
protection claims, and therefore they are likely to succeed on
the merits of those claims.
[Id. at 28-30.J
The Moving Plaintiffs assert that they will suffer
irreparable injury in the absence of a preliminary injunction
because they are being deprived of a central tenet of their
religion, causing them to suffer a continual and irreparable
spiritual injury.
[Id. at 30-31.J
Further, they argue that the
balance of hardships tips in their favor.
Defendants will not
suffer any substantial hardship if the Court orders them to
provide the Moving Plaintiffs access to their prayer items, as
evidenced by the fact that the Moving Plaintiffs possessed the
items for years without incident.
Further, Defendants already
have a protocol in place for the handling of sacred items of
other religions and that protocol can be applied to Native
Hawaiian sacred items as well.
[Id. at 31-32.]
16
As to the last preliminary injunction requirement, the
Moving Plaintiffs argue that granting the Motion is in the
public's interest.
The public has a strong interest in
protecting constitutional rights and rights under federal law.
Further, 42 U.S.C. § 1006 and article XII, section 7 of the state
constitution recognize Native Hawaiians' right to practice their
religion.
[Id. at 34.]
The Moving Plaintiffs argue that, pursuant to 18 U.S.C.
§
3626(a) (1) and (2), the relief requested in the Motion "is
narrowly tailored to restore DAVIS and KANE's religious rights to
the status quo which permitted them access to personal sacred
items in their cell[,]" [id. at 32-33,] and is the least
intrusive means to correct the violations.
The Moving Plaintiffs
therefore contend that the requested relief is appropriate under
the circumstances of this case.
[Id. at 33-34.]
Finally, the Moving Plaintiffs argue that a security
bond pursuant to Rule 65(c) is not necessary.
This Court should
exercise its discretion and waive the requirement of a bond
because the relief requested will not pose unnecessary financial
risks on Defendants.
II.
[Id. at 36-37.]
Defendants' Opposition
In their memorandum in opposition, Defendants emphasize
that Plaintiff Davis failed to disclose his prayer object on the
Allowable Personal Property Inventory form ("Inventory Form")
17
that he completed and signed on August 11, 2007 upon his transfer
[Mem. in Opp. at 3, Aff. of Assistant Warden
to Saguaro.
Ben Griego
("Griego Aff."), Exh. E.]
The Inventory Form states,
inter alia:
I acknowledge that I am responsible for all
personal property recorded on my property form to
include additions and deletions as well as
property issued by the contracting agency and that
the facility will only accept the responsibility
for items inventoried and secured by facility
staff.
I further understand that the property form,
including any additions, is considered to be the
complete accounting of personal property in my
possession.
As other items will be considered
contraband and disposed of in accordance with the
current procedures "Control of Contraband".
I am
subject to disciplinary action for possession of
contraband.
[Griego Aff., Exh. E (emphasis added).]
states that,
Assistant Warden Griego
if a kukui nut had been found in Plaintiff Davis's
possession upon his transfer, "it would have been confiscated and
disposed of as contraband at that time."
[Griego Aff. at
~
37.]
Defendants emphasize that the First Amended Complaint
does not contain any allegations regarding how inmate cell
searches are conducted and what may be seized during those
searches.
Further, the items at issue in the instant Motion are
not listed in the "sacred items" allegations in the First Amended
Complaint.
[Mem. in Opp. at 3-4
at~49).]
18
(citing First Amended Complaint
A.
Background Regarding Native
Hawaiian Religious Practices
Saguaro, through the State Department of Public Safety
("DPS"), provides the services of Native Hawaiian spiritual
advisor Kaiana Haili to registered Native Hawaiian inmates.
Advisor Haili usually visits Saguaro four times a year to lead
the opening and closing celebrations for the Makahiki season,4
and the summer and winter solstice celebrations.
He also advises
DPS and Saguaro on the provision of Native Hawaiian religious
programming.
[Griego Aff. at
~
9.]
In addition to these
celebrations, Saguaro provides a celebratory meal to the entire
inmate population in recognition of King Kamehameha Day in June
and Price Kuhio Day in March.
[Id. at
~
18.]
Saguaro provides
practitioners of the Native Hawaiian religion with weekly
religious services, a weekly ninety-minute hula class/service, a
weekly ninety-minute Hawaiian ritual/ceremony class/service, and
a weekly two-and-a-half hour Hawaiian language class.
This is
more programming than is provided to any other religious group at
Saguaro.
In addition, the assistants for the Native Hawaiian
classes met for an hour once a month.
Advisor Haili structured
4 "The Makahiki season is signaled by the rising of the
Makali'i (Pleiades) Constellation in October-November of each
year.
The Makahiki season ends by the setting of Makali'i
(Pleiades) Constellation in February-March of each year."
[First
Amended Complaint at ~ 47.]
There are ceremonies, including
customary and traditional activities, marking the beginning and
the end of the Makahiki season.
[Id. at ~ 48.]
19
the language class, and he provides suggested readings and lesson
plans to guide the participants in the classes/services.
~~
[Id. at
19-21.]
In late June/early July 2011, Assistant Warden Griego,
after consulting with Advisor Haili, compiled a list of religious
items that Native Hawaiian religion practitioners may keep in
their cells.
According to Assistant Warden Griego, Advisor Haili
never stated that it was necessary to include an individual kukui
nut on that list.
In a May 2010 email, Advisor Haili stated that
he was bringing ten kukui nut lei to Saguaro for use in the
summer solstice ceremony and in group activities, and he
requested that his "Assistants" be allowed to keep their lei in
their cells in ziploc bags.
The email explained the significance
of the kukui nut, but Advisor Haili not include either a kukui
nut or a kukui nut lei in his recommendations for the list of
items that inmates are allowed to retain in their cells.
[Griego
Aff., Exh. A (email string dated May 27, 2010 between, inter
alia, Advisor Haili and Assistant Warden Griego).]
At the
hearing, Advisor Haili testified that he intended to give the lei
to the assistants to recognize their growth and achievement in a
type of graduation ceremony.
Advisor Haili did not testify as to
whether Plaintiff Davis was one of the intended recipients of the
lei.
When Advisor Haili learned that the assistants would not be
20
able to keep the lei in their cells, he brought other lei for
communal use.
Those lei are kept in the Saguaro chapel.
Ultimately, the warden of Saguaro approved the
following items for retention by Native Hawaiian religion
practitioners in the general inmate population ("Retention
List"):
a.
Lava Lava: a
a skirt; .
b.
Ti leaf lei:
30 inches[;]
c.
Hawaiian Sea
stored in a small
d.
Coconut oil:
e.
Amulet.
[Griego Aff. at
~
25.]
single rectangular cloth worn as
twisted and woven no longer than
Salt; 2-3 ounces.
. to be
zip lock baggie[;]
approximately 2-3 ounces;
At the hearing, Assistant Warden Griego
testified that the Retention List is memorialized in an email,
but was not reduced to a form.
He stated that he believes the
Retention List was distributed to the unit managers and shift
captains at Saguaro.
Case Manager Blank testified that she keeps
a copy of the Retention List in her office so that she can refer
to it, but she also testified that she did not receive a copy of
the list until March 2012.
Red Rock also has a list of allowable property, and
inmates are allowed to possess a medallion such as the Kane
Prayer Object.
Aff.") at
~~
[Mem. in Opp., Aff. of Carl Richey ("Richey
8-10, Exh. A (CCA policy re Inmate/Resident
Property) . ]
21
In addition to the items on the Retention List, Saguaro
retains the following items in its chapel for use during weekly
Native Hawaiian meetings and celebrations:
history books, CD's, DVDs, language books, seven
(7) ~ gourds, four (4) gourd double, seven (7)
ukuleles, twenty-three (23) malo/loin cloths,
lele/alter tri pod, alter shelf, lono makua/staff,
gourd with decorations, thirty-five (35) kiahei
lei and muslin cloth (cape and necklace), hulu lei
(feather lei), kukui lei (nut lei), two (2)
pheasant pelts, two (2) uli uli (instrument),
serving cups, two (2) lama, forty-eight (48)
artificial anklet and bracelets, kiahei/muslin
cloth, five pu/conch shells (instruments), two (2)
puloulou/kapu sticks, four (feather) kahili,
puone/nose flute, koko maoloha/net, five pa/wooden
platters, ipuwai/water gourd, Konana (2 boards and
48 pieces), ulu mika/HI bowling (game), two (2)
Lava Lava, Drum, and serving bowls.
[Griego Aff. at
B.
~
27.]
Cell Searches
In accordance with CCA policy, Saguaro and Red Rock
conduct frequent, unannounced searches of inmates' cells and
other areas of the facility to address and/or prevent the
presence of contraband, missing or stolen property, escapes, and
other disturbances.
The searches are done in an orderly manner
and, when possible, the area is left the way it was found.
The
staff are to respect inmates' personal property and are not to
carelessly discard, misplace, or break it.
during the search is not required.
The inmate's presence
[Griego Aff. at
~~
in Opp., Aff. of Warden Bruno Stole ("Stole Aff.") at
4-8; Mem.
~~
4-8.]
Saguaro and Red Rock conduct the searches "as often as necessary
22
to promote the safety and security of the facility."
Aff. at
~
4; Stolc Aff. at
~
4.]
[Griego
At the hearing, Assistant
Warden Griego testified that, during each shift, three randomly
chosen cells are searched in each "pod".
1.
Confiscation of Davis Prayer Object
Case Manager Sarah Blank testified at the hearing that
she discovered the Davis Prayer Object during a search of
Plaintiff Davis's cellon February 20, 2012.
She testified that
the pouch which the kukui nut was in also contained two sewing
needles, as well as thread matching the thread around the kukui
nut.
The needles were made of blue plastic and were three to
three-and-a-half inches long.
Case Manager Blank testified
inmates can be authorized to keep such needles for certain types
of hobby craft.
She checked Saguaro records and determined that
Plaintiff Davis was not authorized to have the needles because
his hobby craft had been terminated and his hobby craft supplies
were supposed to be sent out of the facility.
During his
testimony, Assistant Warden Griego testified that the pouch was a
concern because it could conceal other items, including
contraband.
Case Manager Blank testified that she conducted three
searches of Plaintiff Davis's cell within a couple of months.
The February 20, 2012 search was the first.
In the second
search, she found another pouch with a kukui nut.
23
She confirmed
that the original kukui nut and pouch she confiscated in the
February 20, 2012 search had been sent out of Saguaro, and thus
this was another kukui nut in a similar style of bag.
Plaintiff
Davis was advised of the consequences he could face if he did not
turn the second kukui nut and pouch in to prison officials, but
Plaintiff Davis did not turn them in.
Case Manager Blank
conducted a third search to try to find the items, but she could
not find them.
According to Assistant Warden Griego, the February 20,
2012 search was the first time Saguaro found a kukui nut in the
possession of Plaintiff Davis or any other inmate.
Case Manager
Blank consulted with Assistant Warden Griego to determine if an
inmate could keep such an item in his cell.
Assistant Warden
Griego determined that it should be confiscated as contraband
because it was not on the list of items that Native Hawaiian
religion practitioners could retain in their cells.
at
~~
31-32.]
[Griego Aff.
Defendants emphasize that neither Assistant Warden
Griego nor any other Saguaro official was privy to the meeting
between Kumu Lake and Plaintiff Davis at Diamondback, and they
emphasize that Plaintiff Davis did not disclose the possession of
the kukui nut when he was transferred to Saguaro.
Thus,
Defendants assert that Plaintiff Davis affirmatively misled
Saguaro officials and he consented to having the item treated as
contraband.
[Mem. in Opp. at 8.]
24
At the hearing, Assistant
Warden Griego testified that Advisor Haili never opined that
having either a single kukui nut or a kukui nut in the manner in
which Plaintiff Davis kept it was a requirement for a Native
Hawaiian religion practitioner.
2.
Alleged Damage to Kane Prayer Object
Defendants acknowledge that Plaintiff Kane was allowed
to keep his turtle pendant in his cell.
[Id. at 9.]
Although
Plaintiff Kane alleges that CCA employees damaged the item during
a cell search, Defendants deny that any CCA employee took or
damaged Plaintiff Kane's items.
Defendants emphasize that CCA
employees are required to handle inmates' property with respect
and to leave the cell in the condition in which they found it.
[Id.
(citing Richey Aff. at
~~
4-6, 44, 50).]
Defendants argue that, by filing an Informal Resolution
form, and then a grievance regarding the alleged loss of
property, Plaintiff Kane "short-circuited" the exhaustion process
and deprived Red Rock of the opportunity to respond to his
allegations.
[Id.]
Plaintiff Kane should have filed a property
loss claim before initiating a grievance.
therefore premature and was denied.
His grievance was
[Richey Aff. at
Exh. D (Plaintiff Kane's March 28, 2012 grievance).]
~~
45-53,
Defendants
emphasize that the CCA employees who allegedly damaged the Kane
Prayer Object are not parties to this case, and the First Amended
Complaint does not allege that CCA failed to conduct cell
25
searches in a respectful and/or reasonable manner, nor does it
allege that Defendants failed to adopt protocols for cell
searches addressing religious items that CCA employees may
[Mem. in Opp. at 9-10.]
encounter during those searches.
C.
Argument
Defendants note that the Motion does not merely seek to
maintain the status quo, it seeks to require Defendants to
immediately change their policies and/or protocols.
Defendants
argue that such mandatory relief requires this Court to impose a
more stringent standard.
[Id. at 12.]
Defendants also argue that this Court lacks
jurisdiction to grant a preliminary injunction on claims that are
not in the First Amended Complaint.
Although the First Amended
Complaint addresses the prohibition of certain items in inmate
cells, neither kukui nuts nor turtle pendants/amulets are listed
among the sacred items described in the First Amended Complaint,
and the First Amended Complaint does not allege any claims based
on destruction of religious property.
[Id. at 12-13.]
Defendants argue that, because the relief sought in the Motion is
beyond the claims in this action, Plaintiff's Rule 65 motion is
effectively a motion for permanent relief.
[Id. at 14-15.]
Defendants next argue that Plaintiff Kane failed to
exhaust his administrative remedies through the inmate grievance
procedure.
Pursuant to Policy 14-6, if an inmate believes that
26
his property has been lost or damaged due to the negligence of a
Red Rock employee, he must submit to the Property Officer, within
seven days of the incident, page one of the 14-60 Lost/Damaged
Stolen Property Claim form ("14-60 Form").
Policy 14-6 describes
the investigation process, the procedure for obtaining
compensation for sustained claims, and the appeal and grievance
process if the claim is denied.
Aff. at
~~
3, 11-17).]
[Id. at 15-16 (citing Richey
The Richey Affidavit also describes the
grievance process, including the Request for Service, Informal
Resolution, and Formal Grievance.
[Richey Aff. at
~~
18-43.]
Plaintiff Kane, however, submitted an incomplete 14-60 Form, and
filed a Formal Grievance before the warden or the administrative
duty officer made a final recommendation.
Richey asserts that,
had Plaintiff Kane properly completed the 14-60 Form and proven
that Red Rock staff was at fault for damaging his property,
Plaintiff Kane would have been compensated for his loss.
~~
48-49,
52.]
[Id. at
Defendants argue that the failure to exhaust his
available administrative remedies precludes Plaintiff Kane from
seeking injunctive relief.
[Mem. in Opp. at 17.]
Defendants next argue that the Moving Plaintiffs are
not likely to succeed on the merits because the Moving
Plaintiffs' claims ask this Court to interfere with day-to-day
prison management.
Defendants argue that, although RLUIPA
imposes a stricter standard than Turner, Congress did not intend
27
RLUIPA to undermine prison operations.
RLUIPA still requires
courts to give due deference to prison administrators regarding
regulations and procedures necessary to maintain order, security,
and discipline, consistent with the prisons' limited resources.
[Id. at 17-19.]
Defendants argue that Plaintiff Kane cannot prevail on
his claims because the merely negligent damage to the Kane Prayer
Object cannot support liability under RLUIPA or § 1983.
Further,
if Red Rock employees did destroy the Kane Prayer Object, it
would be a violation of CCA policy and CCA would provide
financial restitution.
Thus, Plaintiff Kane cannot establish
that the alleged violation of his rights was the result of
government policy or custom.
Defendants also emphasize that the
employees who allegedly damaged the Kane Prayer Object are not
parties to this action, and this Court lacks jurisdiction to
issue a preliminary injunction against non-parties.
Although the
Moving Plaintiffs couch their request as seeking a preliminary
injunction requiring Defendants to adopt a policy requiring
respectful and careful handling of property during cell searches,
such a policy already exists and there is no live controversy.
[Id. at 20-22.]
As to Plaintiff Davis, Defendants argue that the
dispossession of his kukui nut was not a substantial burden on
the exercise of his religion.
Defendants emphasize that the
28
kukui nut is not on the list of approved items for Native
Hawaiian religion practitioners.
Defendants argue that Plaintiff
Davis does not need his kukui nut to exercise his religious
beliefs, and there are other Native Hawaiian artifacts, including
kukui nut lei, available to him in the prison chapel.
Defendants
argue that the failure to include the kukui nut in the First
Amended Complaint, and Plaintiff Davis's failure to disclose it
on the Inventory Form demonstrate that the absence of the kukui
nut is not a substantial burden because it does not force him to
act contrary to his religious beliefs.
[Id. at 22-25.]
Defendants emphasize that prison security is a
compelling governmental interest for purposes of the RLUIPA and
that, by failing to disclose the kukui nut on the Inventory Form,
Plaintiff Davis agreed that it was contraband.
Defendants argue
that the kukui nut has not been determined to be a legitimate
object needed for individual worship, as opposed to group
ceremonial activities.
37-38, Exh. A).]
[Id. at 25 (citing Griego Aff. at
~~
22,
Defendants argue that there is a compelling
interest in maintaining security by precluding the possession of
items not on the Retention List, and Defendants note that no
other inmate who is a Native Hawaiian religion practitioner has
ever demanded to possess a kukui nut.
Further, Advisor Haili
noted in his 2010 email that kukui nuts cannot be touched by
other people.
Defendants argue that this would pose a risk of
29
violence if inmates were allowed to possess kukui nuts and cell
mates or CCA employees handle them.
[Id. at 26 (citing Griego
Aff., Exh. A).]
Defendants also argue that the exclusion of kukui nuts
from the Retention List is "the least restrictive means to
achieve the compelling interest of balancing religious needs with
the exclusion of contraband."
[Id.]
Defendants emphasize that a
kukui nut is comparable to a candle because it has flammable oils
and there is a potential for violence if other inmates handle an
inmate's kukui nut.
Defendants also point out that kukui nut lei
are available in the prison chapel for use during worship in a
supervised environment.
Defendants assert that the Moving
Plaintiffs have not established that individual practitioners of
the Native Hawaiian religion need to retain kukui nuts in their
cells.
[Id. at 26-27.]
Defendants argue that neither Plaintiff Davis nor
Plaintiff Kane is likely to prevail on his free exercise claims.
Plaintiff Kane will not prevail because either this Court lacks
jurisdiction or he has alleged a negligence-based tort that does
not implicate religious liberties.
Plaintiff Davis will not
prevail because Saguaro officials have a legitimate, penalogical
interest in controlling contraband, avoiding fire hazards, and
limiting the amount of property inmates may possess in their
cells.
Defendants contend that the policy on kukui nuts is
30
reasonably related to these interests.
Defendants emphasize that
Plaintiff Davis can worship through the items that he is allowed
to keep in his cell and by participating in the regular programs
offered at Saguaro.
In light of Plaintiff Davis's failure to
provide notice of his possession of the kukui nut and the fact
that Advisor Haili never demanded that inmates be allowed to
possess kukui nuts in their cells, Defendants' ban was reasonable
and, if necessary, Defendants can address problems with kukui
nuts one step at a time.
Defendants also contend that Plaintiff
Davis cannot prevail on his free exercise claims because Saguaro
has been extremely accommodating to the practitioners of the
Native Hawaiian religion, even providing more programs than are
available to practitioners of other religions.
[Id. at 27-30.]
Defendants next argue that neither Plaintiff Davis nor
Plaintiff Kane is likely to prevail on his equal protection
claims.
First, the Moving Plaintiffs rely only on their
understanding of what inmate practitioners of other religions are
entitled to.
Second, prisons need not provide the same liberties
to all religions.
Defendants also argue that they do treat
religions equally, as evidenced by the fact that a Native
Hawaiian religion inmate may keep an amulet,
just as a Catholic
inmate may keep a crucifix or a Jewish inmate may keep a Star of
David.
Defendants also argue that they treat all religious
objects with respect during cell searches.
31
Defendants have made
numerous efforts to provide Native Hawaiian religion
practitioners with religious opportunities, as evidenced by the
number of items that they may keep in their cells, the number of
items available in the chapel, and the amount of
programs/services offered.
Defendants therefore contend that
there is no disparate treatment, and this Court should deny the
preliminary injunction.
[Id. at 30-32.]
Defendants further argue that neither Plaintiff Davis
nor Plaintiff Kane is likely to suffer irreparable harm.
The
fact that the Kane Prayer Object was broken by an as yet unproven
person does not prevent Plaintiff Kane from acquiring another
one.
He also had the opportunity to seek compensation from the
offending party, if he could prove who was responsible.
his injury is not irreparable.
Thus,
As to Plaintiff Davis, Defendants
emphasize that he did not acquire the Davis Prayer Object until
2006, and that he failed to disclose it upon his transfer to
Saguaro in 2007.
His failure to disclose it, Plaintiffs' failure
to include it in the First Amended Complaint, and the fact that
Advisor Haili never insisted that inmates be allowed to retain
kukui nuts in their cells all undermine Plaintiff Davis's claim
of irreparable injury, particularly in light of the religious
items and programs that he does have access to.
[Id. at 33-34.]
Finally, Defendants argue that the public interest
weighs against a preliminary injunction.
32
The public's interest
in the safe, secure, and orderly administration of prisons
outweighs the Moving Plaintiffs' interest in a preliminary
injunction.
Insofar as only the inmates at Saguaro and Red Rock
would be affected by a preliminary injunction, Defendants
acknowledge that this factor is not determinative.
Defendants,
however, argue that the Court should deny relief to Plaintiff
Davis based on unclean hands because he concealed the kukui nut
for five years.
[Id. 35-36.]
III. Reply
In their reply, the Moving Plaintiffs argue that this
Court should grant the Motion as to Plaintiff Kane because
Defendants admit that he is allowed to possess the Kane Prayer
Object and that it should be replaced.
[Reply at 1.]
The Moving Plaintiffs reiterate that they are likely to
succeed on the merits of their RLUIPA claim because they have
demonstrated that Defendants substantially burdened their
"religious practice of retaining personal sacred objects" and
that this a part of the Native Hawaiian religion.
[Id. at 4.]
The Moving Plaintiffs emphasize that Assistant Warden Griego was
aware of the religious significance of the kukui nut.
7 (discussing Griego Aff., Exh. A).]
[Id. at 6-
They also argue that they
have demonstrated Defendants' "pattern and practice of
confiscating these items or defiling them when conducting cell
searches."
[Id. at 5.]
The Moving Plaintiffs argue that,
33
although Assistant Warden Griego states that he understands kukui
nuts may be flammable, there is no evidence that Plaintiff
Davis's possession of the item was an actual or threatened
security risk when he possessed it at Diamondback or at Saguaro
before it was confiscated.
Further, Defendants could have
employed other, less restrictive alternatives, such as placing
the Davis Prayer Object in the chaplain's custody, but there is
no evidence that Defendants considered such options.
6.J
[Id. at 5-
At the hearing, the Moving Plaintiffs also argued that
Defendants could allow Plaintiff Davis to keep the kukui nut in a
clear ziploc bag, which would prevent him from concealing
contraband and would allow Saguaro officials to inspect it
without touching it.
The Moving Plaintiffs reiterate that they are likely to
succeed on the merits of their free exercise claims.
They argue
that Defendants' position that Plaintiff Davis is free to use
communal sacred objects in lieu of the Davis Prayer Object
ignores the mana that Kumu Lake imparted to him through the item.
[Id. at 7-8.J
Dr. Tengan submitted additional testimony that
personal sacred objects are not interchangeable with communal
ones, but he acknowledges that communal sacred objects also have
mana.
Further, when a kahu or kupuna gives someone a sacred
object and other people touch it, the mana transmitted with the
object diminishes.
If someone takes the object, the mana is
34
stolen.
According to Dr. Tengan, a Native Hawaiian religion
practitioner could not properly exercise his religious beliefs by
using a communal object instead of a personal one.
Further, when
a Native Hawaiian religion practitioner uses a sacred object, the
practitioner's mana, and the mana of the 'aumakua and akua that
the practitioner invokes when he uses the object, also accrues to
the object.
Thus, Dr. Tengan opines that the spiritual injury
suffered from the loss of a personal sacred object cannot be
remedied through the use of communal objects.
[Reply, Decl. of
Ty Preston Kawika Tengan ("Suppl. Tengan Decl.") at
~~
4-5, 7-8.]
In particular, Kumu Lake was the kahuna nui (high priest) of the
largest heiau in Hawai'i, and Kumu Lake has passed away since he
gave Plaintiff Davis the Davis Prayer Object.
irreplaceable.
[Id. at
~
Thus, it is
6.]
Plaintiff Davis also states that, on or about March 13,
2012, Case Manager Blank and Unit Manager Cook confiscated his
malo (loincloth) and his kihei
(cape) from him.
He uses these
articles of clothing during Native Hawaiian rituals and
ceremonies.
Pursuant to Saguaro's policy regarding confiscated
items, Plaintiff Davis chose to donate the items to a charity of
the facility's choice.
[Reply, Suppl. Decl. of Richard Kapela
Davis ("Suppl. Davis Decl.") at
~~
20, 24.]
The Moving
Plaintiffs argue Defendants are aware of the items' religious
significance, but they still confiscate such items and infringe
35
upon the constitutional rights of inmates who are Native Hawaiian
religion practitioners.
The Moving Plaintiffs argue that
confiscating the items and forcing the inmates to either mail
them out of the facility or donate them to charity is not the
least restrictive means of achieving security.
[Reply at 8-9.]
The Moving Plaintiffs argue that Plaintiff Davis will
prevail on his equal protection claim because Defendants' policy
allowing possession of one religious medallion or amulet only
accommodates religions where the personal sacred object is a
medallion or amulet.
The policy does not accommodate the Davis
Prayer Object, and there is no principled means to distinguish
between the Davis Prayer Object and religious medallions or
amulets.
[Id. at 9.]
The Moving Plaintiffs argue that the irreparable harm
to their constitutional rights weighs sharply in favor of
granting the Motion.
[Id. at 10.]
Neither of the Moving
Plaintiffs can replace his prayer object.
Plaintiff Kane's
father made the Kane Prayer Object to impart mana to his son.
Plaintiff Kane's father, however, is no longer able to make such
items.
Plaintiff Kane cannot order a replacement from a vendor,
but he acknowledges that another kupuna or kumu could decide upon
an amulet for him and make it.
Kane,
III
[Reply, Suppl. Decl. of James
(nSuppl. Kane Decl.") at
36
~~
6-7.]
The Moving Plaintiffs reiterate that granting a
preliminary injunction would not prejudice Defendants.
They
acknowledge Defendants' interest in regulating such items through
administrative processes, and they emphasize that both of them
followed the administrative procedures and went through the
grievance process to report their losses.
Defendants only
complain that Plaintiff Kane followed one of two processes.
The
Moving Plaintiffs, however, argue that it was reasonable for
Plaintiff Kane to forego the property destruction process because
the Kane Prayer Object is not just a piece of property.
Thus,
the Moving Plaintiffs contend that the failure to use that
process is not fatal to the Motion.
The Moving Plaintiffs argue
that Defendants have not identified any interest serious enough
to outweigh the strong public interest in ensuring that native
peoples are able to practice their religion, even while
incarcerated.
[Reply at 11-13.]
The Moving Plaintiffs reiterate that Plaintiff Davis
kept the Davis Prayer Object for years without incident, and they
argue that he never tried to conceal it.
[Id. at 12.]
According
to Plaintiff Davis, it was not on the Inventory Form because he
did not put it in the box of his belongings that was sent to
Saguaro ahead of him.
Instead, he kept it in a bag with some
other items that he could not part with for two weeks.
The bag
was taken from him before he boarded the flight to Arizona.
37
A
number of days after his arrival at Saguaro, a nurse in the
medical unit returned the bag, with the Davis Prayer Object but
without his medication, to Plaintiff Davis.
Plaintiff Davis
asked for a religious inventory sheet to report the Davis Prayer
Object, but he was informed that there was no such form.
The
Saguaro chaplain told him that he did not need to declare the
object on a form.
Plaintiff Davis never tried to conceal the
object and, although his cell had been searched prior to
February 20, 2012, the object had never been confiscated.
[Suppl. Davis Decl. at
~~
9-15.]
Thus, the Moving Plaintiffs
argue that Plaintiff Davis does not have unclean hands.
[Reply
at 12.]
The Moving Plaintiffs argue that this Court does have
jurisdiction to grant the Motion because there is a close nexus
between the allegations regarding sacred objects in the First
Amended Complaint and the conduct at issue in the Motion.
They
emphasize that the First Amended Complaint seeks permanent
injunctive relief guaranteeing access to sacred objects.
Thus,
they argue that: the relief sought in the Motion is the same type
of relief sought in the First Amended Complaint; the Motion
involves the same parties; and the Motion relies on the same
constitutional provisions and statutes.
The Moving Plaintiffs
also argue that, whether the Court characterizes the relief
38
sought in the Motion as mandatory or prohibitory, they have met
their burden of proof.
[Id. at 14-16.]
Finally, the Moving Plaintiffs argue that a preliminary
injunction against Defendants also binds their "'officers,
agents, servants, employees, and attorneys,' even if they are not
named parties[.]"
65 (d) (2) (B)) .]
[Id. at 16 (quoting Fed. R. Civ. P.
Thus, a preliminary injunction against CCA would
bind the individual CCA employees who conduct cell searches or
who otherwise come into contact with inmates' sacred objects.
[Id. ]
STANDARD
This Court has recognized that:
In general, the standard for a temporary
restraining order or a preliminary injunction is
as follows:
"[I]njunctive relief is an extraordinary
remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to
such relief." Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 376 (2008).
The standard for granting a preliminary
injunction and the standard for granting a
temporary restraining order are identical.
See Haw. Cnty. Green Party v. Clinton, 980 F.
Supp. 1160, 1164 (D. Haw. 1997); Fed. R. Civ.
P. 65.
Sakala v. BAC Home Loans Servicing, LP, CV. No.
10-00578 DAE-LEK, 2011 WL 719482, at *4 (D.
Hawai'i Feb. 22, 2011) (alteration in original) .
A plaintiff seeking a preliminary
injunction must establish that he is likely
to succeed on the merits, that he is likely
to suffer irreparable harm in the absence of
39
preliminary relief, that the balance of
equities tips in his favor, and that an
injunction is in the public interest. Am.
Trucking Ass'ns v. City of Los Angeles, 559
F.3d 1046, 1052 (9th Cir. 2009) (quoting
Winter v. Natural Res. Def. Council, Inc.,
U.S. ----, 129 S. ct. 365, 374, 172 L.
Ed. 2d 249 (2008)) (explaining that, "[t]o
the extent that [the Ninth Circuit's] cases
have suggested a lesser standard, they are no
longer controlling, or even viable" (footnote
omitted)); see also Winter, 129 S. Ct. at
374-76 (holding that, even where a likelihood
of success on the merits is established, a
mere "possibility" of irreparable injury is
insufficient to warrant preliminary
injunctive relief, because "[i]ssuing a
preliminary injunction based only on a
possibility of irreparable harm is
inconsistent with [the Supreme Court's]
characterization of injunctive relief as an
extraordinary remedy that may only be awarded
upon a clear showing that the plaintiff is
entitled to such relief").
Painsolvers, Inc. v. State Farm Mut. Auto. Ins.
Co., 685 F. Supp. 2d 1123, 1128-29 (D. Hawai'i
2010) (footnote and some citations omitted)
(alterations in original).
The Ninth Circuit has
held that its "serious questions" version of the
sliding scale test for preliminary injunctions
survives Winter to the extent that, a court may
grant a preliminary injunction where the plaintiff
(1) "demonstrates.
. that serious questions
going to the merits were raised and the balance of
hardships tips sharply in the plaintiff's
favor[,]" and (2) satisfies the other Winter
factors, likelihood of irreparable injury and that
the injunction is in the public interest.
Alliance for the Wild Rockies v. Cottrell, 632
F.3d 1127, 1134-35 (9th Cir. 2011) (citation and
block quote format omitted) (some alterations in
original) .
40
Aliah K. ex rel. Loretta M. v. Haw., Dep't of Educ., 788 F. Supp.
2d 1176, 1186-87 (D. Hawai'i 2011)
(footnote omitted).5
Specifically regarding requests for preliminary
injunctions addressing prison conditions, 18 U.S.C. § 3626(a) (2)
provides:
In any civil action with respect to prison
conditions, to the extent otherwise authorized by
law, the court may enter a temporary restraining
order or an order for preliminary injunctive
relief.
Preliminary injunctive relief must be
narrowly drawn, extend no further than necessary
to correct the harm the court finds requires
preliminary relief, and be the least intrusive
means necessary to correct that harm.
The court
shall give substantial weight to any adverse
impact on public safety or the operation of a
criminal justice system caused by the preliminary
relief and shall respect the principles of comity
5 The Ninth Circuit has stated the sliding scale test as
follows:
"A preliminary injunction is appropriate when
a plaintiff demonstrates 'either: (1) a likelihood
of success on the merits and the possibility of
irreparable injury; or (2) that serious questions
going to the merits were raised and the balance of
hardships tips sharply in [the plaintiff's]
favor.'" Lands Council v. Martin (Lands Council
n), 479 F.3d 636, 639 (9th Cir. 2007) (quoting
Clear Channel Outdoor Inc. v. City of Los Angeles,
340 F.3d 810, 813 (9th Cir. 2003)).
These two
options represent extremes on a single continuum:
"the less certain the district court is of the
likelihood of success on the merits, the more
plaintiffs must convince the district court that
the public interest and balance of hardships tip
in their favor." Id.
Lands Council v. McNair, 537 F.3d 981, 987 (9th. Cir. 2008)
banc) (some citations and internal quotation marks omitted)
(alteration in Lands Council) .
41
(en
set out in paragraph (1) (B) in tailoring any
preliminary relief.
Preliminary injunctive relief
shall automatically expire on the date that is 90
days after its entry, unless the court makes the
findings required under subsection (a) (1) for the
entry of prospective relief and makes the order
final before the expiration of the 90-day period.
DISCUSSION
I.
Jurisdiction
At the outset, this Court must address Defendants'
argument that this Court does not have jurisdiction to rule upon
the Moving Plaintiffs' Motion because it addresses items and
seeks relief that Plaintiffs did not plead in the First Amended
Complaint.
"A preliminary injunction may be granted only when
the 'intermediate relief [is] of the same character as that which
may be granted finally.'"
Parmer v. Alvarez, Civil No. 09-0412
DMS (NLS), 2009 WL 4544132, at *2 (S.D. Cal. Dec. 1, 2009)
(quoting De Beers Consolo Mines V. U.S., 325 U.S. 212, 220, 65 S.
Ct. 1130, 89 L. Ed. 1566 (1945))
(citing Johnson
572 F.3d 1067, 1084 (9th Cir. 2009)
V.
Couturier,
(noting that injunction was
inappropriate in De Beers because the court lacked jurisdiction);
Kaimowitz
V.
Orlando, 122 F.3d 41, 43
(11th Cir. 1997)
(court
should not issue an injunction if injunction deals with a matter
lying wholly outside the issues in the underlying action); Devose
v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994)
(to obtain
injunctive relief, the party "must necessarily establish a
42
relationship between the injury claimed in the party's motion and
the conduct asserted in the complaint.")).
Although the First Amended Complaint does not
specifically mention the Davis Prayer Object or the Kane Prayer
Object, the First Amended Complaint requests,
inter alia, the
following relief:
11.
Order Defendants to allow Plaintiffs and
all other class members to exercise their Native
Hawaiian religion by using and maintaining
traditional and customary objects and items that
are essential to expressing their religious belief
and faith as requested by Plaintiffs[; and]
13.
Order Defendants to develop a
comprehensive plan and promulgate official policy
guidelines on how Native Hawaiians who have been
convicted and sentenced under the laws of the
State of Hawaii can practice their religion on a
regular and equal basis with all other religions
represented at correctional facilities.
[First Amended Complaint at pg. 125.]
Thus, the relief that the
Moving Plaintiffs seek in the instant Motion is of the same
character as some of the relief that Plaintiffs ultimately seek
in this action.
This Court therefore rejects Defendants'
argument that this Court lacks jurisdiction to rule on the Motion
because the Motion addresses items and seeks relief beyond the
scope of the First Amended Complaint.
II.
Exhaustion
Before addressing the merits of the Moving Plaintiffs'
request for a preliminary injunction, this Court must address
43
Defendants' argument that Plaintiff Kane's request for
preliminary injunctive relief is barred because he failed to
exhaust his administrative remedies.
The Moving Plaintiffs argue
that they both went through the prison grievance process to give
their respective prisons the opportunity to address the
confiscation/destruction of their respective prayer objects.
[Reply at 11-12.]
Although the Moving Plaintiffs have not
presented any evidence supporting their argument that Plaintiff
Davis exhausted his administrative remedies, "failure to exhaust
is an affirmative defense" under the Prison Litigation Reform Act
of 1996 ("PLRA").
See Jones v. Bock, 549 U.S. 199, 216 (2007).
Insofar as Defendants have not argued that Plaintiff Davis's
request for preliminary injunctive relief is barred because he
failed to exhaust his administrative remedies, this Court need
not address the exhaustion issue as to Plaintiff Davis.
The PLRA provides that: "No action shall be brought
with respect to prison conditions under section 1983 of this
title, 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."
U.S.C. § 1997e(a).
42
The United States Supreme Court has held that
exhaustion is mandatory, "regardless of the relief offered
through administrative procedures."
731, 741
(2001)
Booth v. Churner, 532 U.S.
(footnote and citation omitted).
44
The Supreme
Court has also recognized that:
Because exhaustion requirements are designed
to deal with parties who do not want to exhaust,
administrative law creates an incentive for these
parties to do what they would otherwise prefer not
to do, namely, to give the agency a fair and full
opportunity to adjudicate their claims.
Administrative law does this by requiring proper
eXhaustion of administrative remedies, which means
using all steps that the agency holds out, and
doing so properly (so that the agency addresses
the issues on the merits) .
Woodford v. Ngo, 548 U.S. 81, 90 (2006)
Woodford)
(some emphases in
(citation and quotation marks omitted).
Carl Richey, Red Rock's Grievance Coordinator and
Property Officer, states that Red Rock's Policy 14-6, titled
"Inmate/Resident Property"
("Policy 14-6"), "governs property,
both personal and facility-issued, that inmates may retain in
their possession.
. and sets forth the claim procedure
inmates must follow in the event that they believe personal
property has been lost or damaged."
Exh. 3-A (Policy 14-6).J
[Richey Aff. at
~~
2, 8,
Section N.2 of Policy 14-6 governs
claims regarding allowable property that has been lost/damaged.
It states, in pertinent part:
Property that has been lost or damaged due to CCA
employee negligence will be eligible for claim
investigation.
a.
If an inmate/resident wishes to request an
investigation of property that has been lost
or damaged due to CCA employee negligence,
the inmate/resident must complete Page 1 of
the 14-60 Lost/Damaged/Stolen Property Claim
and forward to the Property Officer or
45
designee.
All claims must be submitted
within seven (7) calendar days of the
incident.
[Richey Aff., Exh. 3-A at 17.]
Pursuant to Policy 14-6, the Property Officer or
designee processes a claim and forwards it to the department head
who is assigned to investigate.
That person must complete the
investigation within fifteen days after the submission of the
claim.
[Id. at 18.]
Further, Policy 14-6, Section N.4 states,
in pertinent part:
c.
d.
If the claim proves valid and
reimbursement/replacement is recommended, it
will be forwarded to the Warden/Administrator
or Administrative Duty Officer who will be
the final authority in the award of any
compensation.
e.
The Warden/Administrator or Administrative
Duty Officer shall review and approve/
disapprove the recommendation within seven
(7) calendar days of receipt.
f.
[Id.]
Once the investigation has been completed,
Page 1 and Page 2 of the 14-6D and any
corresponding paperwork will be returned to
the Property Officer or designee for logging.
In the event a claim does not prove valid and
replacement/reimbursement is denied the
inmate/resident may submit a 14-6 E Denied
Property Claim Appeal to the Warden/
Administrator.
The Warden/Administrator's decision on the Denied Property
Claim Appeal "is final and concludes the claim process, unless
otherwise specified in the facility management contract."
at 20, § N.7.d.]
[Id.
If the inmate is not satisfied with the outcome
46
of the property claim process, he may file a grievance regarding
[Richey Aff. at
the Warden/Administrator's decision.
~
17.]
Red Rock Policy 14-5, applicable to Hawai'i inmates
only, governs the grievance process ("Policy 14-5").
~
18, Exh. 3-C at 1.]
[Id. at
Property issues are not directly grievable
and "must be addressed in accordance with property procedures in
place at the facility[.]"
[Richey Aff., Exh. 3-C at 4.]
Policy
14-5, section K states, inter alia: "With the exception of
emergency grievances, inmates/residents are required to utilize
the informal resolution process concerning questions, disputes,
or complaints prior to the submission of a formal grievance."
[Id. at5.]
If the inmate is not satisfied with the response to
the informal grievance, he may submit a formal grievance to the
Grievance Officer within five days.
[Id. at 6, § K.3.c.]
Section P.1 states, in pertinent part:
If an inmate/resident is not satisfied with the
decision of a formal or emergency grievance, the
inmate/resident may complete the appeal section of
the 14-5B and resubmit the grievance.
Inmates/residents are entitled to appeal all
adverse decisions, even those made on a purely
procedural basis including but not limited to the
expiration of a time limit.
[Id. at 9.]
"Barring extraordinary circumstances, a grievance
will be considered settled if the decision at any step is not
appealed by the inmate/resident within the given time limit."
[Id., § P.3.]
47
Plaintiff Kane submitted an Informal Resolution form
along with page 1 of the 14-6D Form.
The Informal Resolution
form is dated February 17, 2012 and states that the staff
received it on February 21, 2012.
Page 1 of 14-6D Form cites to
the Informal Grievance form for the explanation of the
circumstances surrounding the lost/damaged/or stolen property.
[Richey Aff., Exh. 3-D. 6 ]
Plaintiff Kane did not obtain a final
recommendation from the Warden or Administrative Duty Officer on
[Richey Aff. at
his damaged property claim.
~
48.]
The Red Rock
staff responded to Plaintiff Kane's informal grievance on March
12, 2012.
The response states that the commander who searched
Plaintiff Kane's cell stated that neither he nor his team
confiscated the items identified in the Information Resolution
form. 7
[Id., Exh. 3-D, Informal Resolution form at 2.]
On March 28, 2012, Plaintiff Kane submitted a Formal
Grievance.
[Richey Aff. at
~
49, Exh. 3-D.]
On March 29, 2012,
Richey informed Plaintiff Kane that his Formal Grievance was
denied and that the staff denied removing the Kane Prayer Object
during the cell search.
Richey instructed Plaintiff Kane "he
6 Exhibit 3-D contains multiple documents, but the exhibit
is not consecutively paginated.
7 Plaintiff Kane alleged that, in addition to the Kane
Prayer Object, two other items were lost or damaged.
[Richey
Aff., Exh. 3-D, Form 14-6Dat 1.]
Those items are not at issue
in the instant Motion.
48
needed to first submit a property claim and that his attempt to
bypass the process was not acceptable."
[Id. at
~
50.]
Thus, Plaintiff Kane failed to complete the Policy 146 process before initiating the grievance process pursuant to
Policy 14-5.
The Moving Plaintiffs argue that Plaintiff Kane's
failure to follow the Policy 14-6 process is excusable because
the destruction of the Kane Prayer Object "was not like losing a
piece of jewelry or an electronic device."
[Reply at 12.]
The
Court rejects this argument because Policy 14-6 expressly governs
Plaintiff Kane's possession of his religious amulet.
[Richey
Aff., Exh. 3-A at 7 § A.5.b ("Inmates/residents shall be allowed
to possess religious medallions,
rosaries, etc. upon approval of
the Chief of Security, in coordination with the Chaplain.").]
Thus, Plaintiff Kane was required to follow the Policy 14-6
process before initiating the grievance process, and Plaintiff
Kane failed to do so.
Further, there is no evidence that Plaintiff appealed
the denial of his Formal Grievance, as allowed pursuant to
section P.1 of Policy 14-5.
The Court therefore finds that
Plaintiff failed to properly complete all steps of the
administrative remedies which Red Rock provided.
See Woodford,
548 U.S. at 90.
This Court acknowledges that some district courts
within the Ninth Circuit have ruled that one inmate's exhaustion
49
"with respect to claim [sic] at issue at a preliminary injunction
hearing regarding an inmates'
[sic] class action against prison
officials regarding prison conditions was sufficient to satisfy
exhaustion requirement of PLRA for other class members."
Thomas
v. Schwarzenegger, No. 2:07-CV-02310 ODW, 2011 WL 4501002, at *2
(E.D. Cal. Sept. 27, 2011).
Even assuming, arguendo, that this
rule could apply to this case, it would not excuse Plaintiff
Kane's failure to exhaust his administrative remedies as to the
destruction of his prayer object.
The First Amended Complaint
addresses prison conditions in general.
Although this Court has
jurisdiction because Plaintiff Kane seeks injunctive relief as to
one type of the issues addressed in the First Amended Complaint,
Plaintiff Kane seeks relief as to the destruction of one specific
item.
No other plaintiff could have exhausted the administrative
remedies as to the specific claim at issue in the instant Motion.
This Court therefore CONCLUDES that Plaintiff's failure
to exhaust his available administrative remedies as to the
destruction of the Kane Prayer Object precludes him from seeking
. a preliminary injunction addressing that issue.
Booth, 532 U.S. at 741.
See § 1997e(a);
The Court therefore DENIES the Motion as
to Plaintiff Kane.
50
III. Preliminary Injunction Analysis
A.
Plaintiff Kane
For the sake of completeness, the Court also notes
that, even if Plaintiff Kane had exhausted his administrative
remedies, this Court would still deny the Motion as to Plaintiff
Kane because he has not established that he is likely to suffer
irreparable harm in the absence of a preliminary injunction.
The
Court recognizes that Plaintiff Kane alleges that Defendants
violated his constitutional rights by destroying the Kane Prayer
Object and, "[u]nlike monetary injuries, constitutional
violations cannot be adequately remedied through damages and
therefore generally constitute irreparable harm."
NASA, 530 F.3d 865, 882
Nelson v.
(9th Cir. 2008), reversed on other
grounds, 131 S. Ct. 746 (2011).
Based upon the evidence
currently before it, this Court finds that Plaintiff Kane has
only established a monetary injury that can be later remedied by
a damage award.
Defendants do not dispute that Plaintiff Kane is
authorized to retain his turtle amulet in his cell, and they do
not dispute that he would be allowed to keep a replacement amulet
as long as it passed a security inspection.
Defendants presented
testimony that, if Plaintiff Kane had established, through the
applicable administrative procedures, that Red Rock personnel
were responsible for the destruction of his turtle amulet,
51
[Richey
Plaintiff Kane would have been compensated for his loss.
Aff. at
~
52.]
Further, although Plaintiff Kane's father cannot
make him another amulet, Plaintiff Kane admitted that "another
kupuna or kumu [could] decide upon an amulet for [him] and
make it[,]" but "[i]t may cost him or her money to get the
materials needed to make the amulet."
~
7.]
[Kane Suppl. Decl. at
Plaintiff Kane also assigned an estimated value of fifty
[Richey Aff., Exh. 3-D (14-6D
dollars to his "HAWAIIAN AMULET".
Form) at 1.]
At the hearing, Advisor Haili testified that he has
looked for an on-line vendor of Hawaiian amulets, but he has been
unable to find one
~ho
would be able to provide the amulets at a
rate that the inmates could afford.
His testimony, however,
establishes that commercial purchase of Hawaiian amulets is
available to remedy Plaintiff Kane's injury.
The Court acknowledges that Plaintiff Kane states that
he "also want[s] to make sure that [his] Native Hawaiian sacred
items are not desecrated again."
[Kane Suppl. Decl. at
~
7.]
Plaintiff Kane, however, has not established that there is an
imminent danger that his sacred items will be desecrated again in
the absence of a preliminary injunction.
He states only:
22.
It is my understanding that Red Rock
employees are instructed to respect and avoid
mishandling sacred objects belonging to inmates of
other religions.
I feel that the Red Rock's
damage to my turtle amulet is discriminatory and I
feel immediately and irreparably harmed by this
continuing discrimination.
52
23.
I also feel that Red Rock employee's
[sic] damage to my turtle pendant was demeaning
and insensitive to my religion.
Because my turtle
pendant is permanently damaged, I feel a strong
spiritual injury.
[Kane Decl. at
~~
22-23.]
While the Court does not doubt the
sincerity of Plaintiff Kane's testimony regarding the importance
of his turtle amulet, the evidence currently before this Court
indicates that monetary damages can remedy his injury, and there
is nothing to support Plaintiff Kane's allegation that incidents
like the cell search which damaged his amulet are systemic and
likely to reoccur without a preliminary injunction.
Insofar as the likelihood of irreparable harm is a
required element of either the Winter test alone or the serious
questions analysis within the Winter test, Plaintiff Kane has not
established that he is entitled to a preliminary injunction.
Court therefore DENIES the Motion as to Plaintiff Kane.
B.
Plaintiff Davis
Whether Plaintiff Davis is entitled to a preliminary
injunction is a closer question.
1.
Likelihood of Success on the Merits
a.
Count XXIV - RLUIPA
RLUIPA provides in relevant part, that "[n]o
government shall impose a substantial burden on
the religious exercise of a person residing in or
confined to an institution
. even if the
burden results from a rule of general
applicability," unless the government establishes
that the burden furthers "a compelling
53
The
governmental interest," and does so by "the least
restrictive means." 42 U.S.C.
§ 2000cc-1 (a) (1) - (2).
RLUIPA defines "religious
exercise" to include "any exercise of religion,
whether or not compelled by, or central to, a
system of religious belief." 42 U.S.C.
§ 2 000cc-5 (7) (A); Warsoldier v. Woodford, 418 F. 3d
989, 994 (9th Cir. 2005).
The Supreme Court has recognized RLUIPA as
"the latest of long-running congressional efforts
to accord religious exercise heightened protection
from government-imposed burdens .
"Cutter
v. Wilkinson, 544 u.S. 709, 714, 125 S. Ct. 2113,
161 L. Ed. 2d 1020 (2005).
The statute itself
reflects this intent stating, "This chapter shall
be construed in favor of a broad protection of
religious exercise, to the maximum extent
permitted by the terms of this chapter and the
Constitution." 42 U.S.C. § 2000cc-3(g).
See also
Warsoldier, 418 F.3d at 995.
Congress effectuated this intent by
distinguishing RLUIPA from traditional First
Amendment jurisprudence in at least two ways.
First, it expanded the reach of the protection to
include any "religious exercise," including "any
exercise of religion, whether or not compelled by
or central to, a system of religious belief."
Cutter, 544 u.S. at 715, 125 S. Ct. 2113 (quoting
42 U. S . C. § 2 000 c c - 5 (7) (A) ).
In fa c t , RLUI PA
"bars inquiry into whether a particular belief or
practice is 'central' to a prisoner's religion."
Cutter, 544 u.S. at 725 n.13, 125 S. Ct. 2113; 42
U.S.C. § 2000cc-5(7) (A).
Second, as opposed to
the deferential rational basis standard of Turner
v. Safley, 482 u.S. 78, 89-90, 107 S. Ct. 2254, 96
L. Ed. 2d 64 (1987), RLUIPA requires the
government to meet the much stricter burden of
showing that the burden it imposes on religious
exercise is "in furtherance of a compelling
governmental interest; and is the least
restrictive means of furthering that compelling
governmental interest." 42 U.S.C.
§ 2000cc-1 (a) (1) - (2).
See also Cutter, 544 U.S.
at 717, 125 S. Ct. 2113; Warsoldier, 418 F.3d at
994.
54
Greene v. Solano Cnty. Jail, 513 F.3d 982, 986 (9th Cir. 2008)
(footnote omitted) .
1)
Religious Exercise & Substantial Burden
This Court must first determine what "religious
exercise" is at issue in this case.
Plaintiff Davis urges the
Court to construe this term as referring to his practice of using
the Davis Prayer Object in his daily prayers and chants and to
"gain and sustain [his] mana."
[Davis Decl. at
~
27.]
Davis
testified that he also used the Davis Prayer Object in dances,
other individual religious protocol, and communal religious
activities.
It provides him spiritual comfort in the midst of
his separation from his homeland, particularly when he is unable
to participate in group religious activities.
[Id. at
~~
28-29.]
At the hearing, Advisor Haili testified that the kukui nut
symbolizes enlightenment, growth, and accomplishment.
Dr. Tengan
provided testimony that a Native Hawaiian religion practitioner
may possesses a small, personal object that represents the mana
of his 'aumakua and akua, and the practitioner may use the object
in rituals and protocol.
He testified that a kukui nut could be
an example of such an object.
[Tengan Decl. at
~~
21, 23-24.]
Plaintiff Davis argues that, pursuant to Greene, this
Court cannot construe "religious exercise" as the practice of his
Native Hawaiian religion as a whole.
55
This Court agrees.
See
Greene, 513 F.3d at 988
("RLUIPA's plain language and our caselaw
interpreting it compel the conclusion that the 'religious
exercise' at issue in Greene's lawsuit is group worship, not
Christianity.").
This Court finds that Plaintiff Davis has
established that the possession and use of his prayer object is a
religious exercise for purposes of RLUIPA.
See Cutter, 544 U.S.
at 720 ("[T]he 'exercise of religion' often involves not only the
belief and profession but the performance of.
. physical acts
[such as] assembling with others for a worship service [or]
participating in sacramental use of bread and wine."
in Cutter)
(alterations
(citation and quotation marks omitted)).
As to whether Saguaro's policy prohibiting Plaintiff
Davis from possessing his prayer object constitutes a
"substantial burden" on his religious exercise, this Court notes
that the Ninth Circuit has stated, "[w]e have little difficulty
in concluding that an outright ban on a particular religious
exercise is a substantial burden on that religious exercise."
Greene, 513 F.3d at 988 (citations omitted).
This Court
therefore finds that Saguaro's policy prohibiting Plaintiff Davis
from possessing his prayer object and requiring him to donate it
to charity, destroy it, or send it out of the facility
substantially burdened his religious exercise.
56
2)
Compelling Governmental Interest
& Least Restrictive Means
It is well established that the government has a
compelling interest in maintaining prison security.
U.S. at 725 n.13.
Cutter, 544
In particular, this Court is concerned with
the fact that, when Case Manager Blank confiscated the Davis
Prayer Object on February 20, 2012, it was in a hand-made pouch
along with contraband items.
Thus, the government interest at
issue in the Motion is not merely prison security in general, but
a specific threat to prison security posed by Plaintiff Davis's
storage of his prayer item.
Saguaro clearly has a compelling
interest in preventing an inmate from using a religious item to
conceal contraband.
The key issue is whether Saguaro used the
least restrictive means to protect that compelling interest.
Even under RLUIPA, courts are to accord deference to
prison administrators on issues of prison security.
U.S. at 732, 725.
Cutter, 544
The prison administrators, however, "still
must show that [they]
'actually considered and rejected the
efficacy of less restrictive measures before adopting the
challenged practice.'"
Greene, 513 F.3d at 989 (quoting
Warsoldier, 418 F.3d at 999 ("[E]ven outside the context of a
minimum security facility,
[the defendant] cannot meet its burden
to prove least restrictive means unless it demonstrates that it
has actually considered and rejected the efficacy of less
restrictive measures before adopting the challenged practice.")
57
(citing United States v. Playboy Entm't Group, Inc., 529 U.s.
803, 824, 120 S. Ct. 1878, 146 L. Ed. 2d 865 (2000)
(finding, in
the context of a First Amendment challenge to speech
restrictions, that "[a] court should not assume a plausible, less
restrictive alternative would be ineffective"))).
The policy at issue in the instant Motion is Saguaro's
policy that the Native Hawaiian religion practitioners in the
general population may only keep the religious items identified
on the Retention List in their cells.
[Griego Aff. at
25.]
~
Assistant Warden Griego compiled the Retention List after
consultation with Advisor Haili in late June/early July 2011, and
the Saguaro Warden approved the list.
[Id. at
~~
23, 25.]
The
compilation of the Retention List was an extended process, as
evidenced by the fact that Advisor Haili discussed his
suggestions for the list in an email dated May 27, 2010, which
included a statement that "[a]fter three years we still have not
come to a conclusion in the matter of personal items to be kept
by individuals in their cells for daily prayer and communion."
[Id., Exh. 1-A at 2.]
Assistant Warden Griego included some of
the items that Advisor Haili suggested, such as the
amulet/pendant and sea salt, but he decided against the other
items, including the malo and kihei.
1-A.]
[Griego Aff. at
~
25, Exh.
Although Case Manager Blank testified at the hearing that
she did not receive a copy of the Retention List until after the
58
cell search during which she confiscated the Davis Prayer Object,
she consulted with Assistant Warden Griego, and he determined
that it was contraband because it was not on the Retention List.
[Griego Aff. at
~
33.]
In addition, upon Plaintiff Davis's transfer to
Saguaro, he was required to complete and sign the Inventory Form.
The Inventory Form clearly states that all property not listed on
the form is considered contraband and would be disposed of as
such.
Plaintiff Davis did not list the Davis Prayer Object on
the Inventory Form.
[Id., Exh. l-E.]
Although the Retention
List was not in existence in August 2007 when Plaintiff Davis
transferred to Saguaro, Assistant Warden Griego testified that,
had a kukui nut been found in Plaintiff Davis's possession upon
his transfer, it would have been confiscated as contraband.
[Griego Aff. at
~
37.]
Plaintiff Davis did not submit any
evidence to contradict this.
The Court is not persuaded by Plaintiff Davis's
testimony that the Davis Prayer Object is not on the Inventory
Form because he did not put it in the box of his belongings that
was sent ahead of him to Saguaro.
[Suppl. Davis Decl. at
~
9.]
The Inventory Form clearly asks the inmate to list ALL personal
property,
and Plaintiff Davis was apparently aware that he could
add items to the pre-printed form, as evidenced by the numerous
hand-written entries on the form.
59
In addition, the Court is not
persuaded by Plaintiff Davis's testimony that he believed there
would be a separate religious inventory sheet upon which he could
declare the Davis Prayer Object.
~
[Id. at
13.]
Plaintiff Davis
apparently knew that he could declare religious items on the
Inventory Form, as evidenced by the fact that he declared his
kihei and his lava lava.
[Griego Aff., Exh. I-E.]
Even
accepting Plaintiff Davis's testimony that Chaplain Miller told
him that he did not need to declare the Davis Prayer Object on a
form,
that advice was clearly mistaken.
Even if Plaintiff Davis
reasonably believed that he did not have to declare the Davis
Prayer Object, after it was confiscated, he knew he was not
authorized to have such an object and he still obtained an
concealed a similar object.
Based upon the evidence before this
Court in the instant Motion, this Court rejects Plaintiff Davis's
argument that the Retention List was a pretext.
Further, the
Court finds that Saguaro's policy of limiting an inmate's
possession of personal items, including religious items, to a
previously approved list of items was the least restrictive means
of accomplishing the compelling governmental interest.
The Court emphasizes that the issue presented in
Plaintiff Davis's request is a narrow one.
The issue is not
whether Saguaro should amend its Retention List, or its generally
applicable policies regarding the possession of personal items,
to allow an inmate to retain a sacred item of his choice, nor is
60
the issue whether Plaintiff Davis should be allowed to retain his
specific prayer object.
The issue currently before this Court
with respect to Plaintiff Davis's RLUIPA claim is whether, under
the particular circumstances of this case, Saguaro's enforcement
of its legitimately adopted Retention List and personal property
policies violated Plaintiff Davis's rights under the RLUIPA.
Based upon the foregoing analysis, although there is a
substantial burden on Plaintiff Davis's religious exercise,
Saguaro employs the least restrictive means to further a
compelling governmental interest.
This Court therefore CONCLUDES
that Plaintiff Davis is not likely to succeed on the merits of
his RLUIPA claim.
b.
Count III - Federal Free Exercise Claim
Plaintiff Davis also argues that the deprivation of his
prayer object violated his First Amendment right to the free
exercise of his religion.
The Ninth Circuit has stated that:
"When a prison regulation impinges on
inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate
penalogical interests." Turner v. Safley, 482
U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987); see also Ward v. Walsh, 1 F.3d 873, 876-77
(9th Cir. 1993) (holding that Turner still applies
to free exercise claims of prisoners after
Employment Division, Dep't of Human Resources v.
Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed.
2d 876 (1990)).
Turner sets forth four factors to
be balanced in determining whether a prison
regulation is reasonably related to legitimate
penalogical interests:
61
(1) Whether there is a "'valid, rational
connection' between the prison regulation and
the legitimate governmental interest put
forward to justify it";
(2) Whether there are "alternative means of
exercising the right that remain open to
prison inmates";
(3) Whether "accommodation of the asserted
constitutional right" will "impact . .
guards and other inmates, and on the
allocation of prison resources generally";
and
(4) Whether there is an "absence of ready
alternatives" versus the "existence of
obvious, easy alternatives."
Turner, 482 U.S. at 89-90, 107 S. Ct. 2254
(quoting Block v. Rutherford, 468 U.S. 576, 586,
104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984)).
Shakur v. Schriro, 514 F.3d 878, 884
(9th Cir. 2008)
(alteration
in Shakur) .
As to the first Turner factor,
insofar as this Court
has concluded that the relevant Saguaro regulations satisfy the
higher compelling governmental interest/least restrictive means
analysis of the RLUIPA, this Court also concludes that the
regulations satisfy the less stringent valid, rational connection
to a legitimate governmental interest factor.
Thus, this factor
weighs strongly in Defendants' favor.
As to the second Turner factor, Advisor Haili testified
that, while the use of the Davis Prayer Object would definitely
enhance the practice of Plaintiff Davis's belief system, the lack
of the Davis Prayer Object does not devalue Plaintiff Davis's
prayers and chants.
Plaintiff Davis also has access to communal
62
kukui nut lei that are retained in the Saguaro chapel, and he can
participate in the weekly services and classes for Native
[Griego Aff. at
Hawaiian religion practitioners.
~
27, 19.]
Thus, Plaintiff Davis has alternate means of exercising his right
to practice his religion.
This factor weighs strongly in favor
of Defendants.
In the Court's view, the third and fourth Turner
factors are related.
It is unclear what the alternative
regulations would be which would allow Plaintiff Davis to retain
his prayer object.
The impact on the guards, other inmates, and
prison resources would depend upon what the alternate system is.
While it may seem simple to say that Plaintiff Davis should be
allowed to retain his kukui nut, such a decision would arguably
require a regulation stating that each practitioner of any
religion is allowed to retain a religious item of his choice, as
long as i t satisfied certain security standards.
Administering
such a system would have a significant impact on the guards and
prison resources in general.
This Court therefore concludes that
the third and fourth Turner factors are either neutral or weigh
slightly in favor of Defendants.
Having considered all of the Turner factors, this Court
CONCLUDES that Plaintiff Davis is unlikely to prevail on the
merits of his federal free exercise claim because the regulations
63
and policies at issue in the instant Motion are reasonably
related to legitimate penalogical interests.
c.
Count XIII - state Free Exercise Claim
Plaintiff Davis also contends that the deprivation of
his prayer object violated his free exercise rights under the
state constitution.
The Hawai'i Supreme Court has stated:
In order to find an unconstitutional infringement
on Appellant's religious practices [in violation
of the first amendment to the United States
Constitution and article I, section 4 of the
Hawai'i Constitution],
it [is] necessary to examine whether or not
the activity interfered with by the state was
motivated by and rooted in a legitimate and
sincerely held religious belief, whether or
not the parties' free exercise of religion
had been burdened by the regulation, the
extent or impact of the regulation on the
parties' religious practices, and whether or
not the state had a compelling interest in
the regulation which justified such a burden.
State ex rel. Minami v. Andrews, 65 Haw. 289, 291,
651 P.2d 473, 474 (1982). Accord Wisconsin v.
Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d
15 (1972).
Korean Buddhist Dae Won Sa Temple of Haw. v. Sullivan, 87 Hawai'i
217, 247,
953 P.2d 1315, 1345 (1998)
(alterations in Sullivan)
(quoting Dedman v. Board of Land & Natural Resources, 69 Haw.
255, 260-61, 740 P.2d 28, 32 (1987), cert. denied, 485 U.S. 1020,
108 S. Ct. 1573, 99 L. Ed. 2d 888 (1988)).
This Court has already discussed each of the factors in
the state free exercise analysis in the analysis of either
64
Plaintiff Davis's RLUIPA claim or his federal free exercise
claim.
Thus, for the reasons stated supra, this Court CONCLUDES
that Plaintiff Davis is unlikely to prevail on the merits of his
state free exercise claim.
d.
Count VIII - Federal Equal Protection Claim
Plaintiff Davis also argues that the deprivation of his
prayer object violates his Fourteenth Amendment equal protection
rights because
"De~endants
allow inmates of other faiths to
retain personal religious items in their cells[.]"
Supp. of Motion at 27-28.]
[Mem. in
This district court has stated that:
The Equal Protection Clause of the Fourteenth
Amendment provides that no State shall "deny to
any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV,
§ 1.
This is "essentially a direction that all
similarly situated persons should be treated
alike." City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985).
An Equal Protection
claim can be stated in one of two ways.
First, a
plaintiff can allege that "defendants acted with
an intent or purpose to discriminate against the
plaintiff based upon membership in a protected
class." See Barren v. Harrington, 152 F.3d 1193,
1194-95 (9th Cir. 1998) (citing Washington v.
Davis, 426 U. S. 229, 239 - 40 (1976) ) .
Alternatively, if the claims do not involve a
suspect classification, a plaintiff can establish
an equal protection "class of one" claim by
alleging that she "has been intentionally treated
differently from others similarly situated and
that there is no rational basis for the difference
in treatment." ViII. of Willowbrook v. Olech, 528
U.S. 562, 564 (2000); Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 944 (9th Cir. 2004).
Kaeo-Tomaselli v. Pi'ikoi Recovery House for Women, No. CIV.
11-00670 LEK, 2011 WL 5572603, at *2
65
(D. Hawai'i Nov. 16, 2011).
"If the statute employs a suspect class (such as race, religion,
or national origin) or burdens the exercise of a constitutional
right, then courts must apply strict scrutiny, and ask whether
the statute is narrowly tailored to serve a compelling
governmental interest."
(9th Cir. 2001)
Ball v. Massanari, 254 F.3d 817, 823
(citing Adarand Constructors, Inc. v. Pena, 515
U.S. 200,219,115 S. Ct. 2097,132 L. Ed. 2d 158 (1995)).
Although a classification based on religion is a
suspect classification, the only evidence that Plaintiff Davis
offers that similarly situated inmates of other religions are
treated more favorably is his unsubstantiated statement that
"[i]t is my understanding that other religions are allowed to
retain spiritually significant objects as part of their religious
practices such as Christians."
[Davis Decl. at
~
32.]
Plaintiff
Davis provides no evidence that inmates of other religions are
subject to more favorable policies and regulations regarding
possession of religious items.
Further, while not directly on
point as to the issue of possession of religious items, the Court
notes that Defendants presented testimony that Saguaro provides
Native Hawaiian religion practitioners with "more weekly
programing services than any other religion."
~
19.]
[Griego Aff. at
Based on the evidence before this Court, Plaintiff Davis
has not established that Saguaro treats inmates who practice the
Native Hawaiian religion less favorably than it treats inmates of
66
other religions.
Thus, there is no suspect classification.
Insofar as Plaintiff Davis bases his Motion on the existence of a
suspect classification and the alleged failure to meet the test
applicable to suspect classifications, this Court need not
address whether the relevant policies and regulations meet the
less stringent tests applicable to other classifications.
This
Court therefore CONCLUDES that Plaintiff Davis is unlikely to
prevail on his federal equal protection claim.
e.
Count XVIII - State Equal Protection Claim
Finally, Plaintiff Davis argues that the deprivation of
his prayer object violates his right to equal protection under
the state constitution because "Defendants accommodate other
faiths by allowing them to retain personal religious objects in
their cell."
[Mem. in Supp. of Motion at 30.]
Article I, section 5 of the Hawaii Constitution
provides,
in relevant part, that "[n]o person shall be deprived
of life, liberty or property without due process of law, nor be
denied the equal protection of the laws, nor be denied the
enjoyment of the person's civil rights or be discriminated
against in the exercise thereof because of race, religion, sex or
ancestry."
As with the federal equal protection analysis,
Hawai'i courts apply the strict scrutiny test "where equal
protection challenges involve 'suspect' classifications or
67
fundamental rights."
Nagle v. Bd. of Educ., 63 Haw. 389, 392,
629 P.2d 109, 111-12 (1981)
(footnotes omitted).
As stated supra, Plaintiff Davis has not established
that Saguaro treats inmates who practice the Native Hawaiian
religion less favorably than it treats inmates of other
religions.
This Court therefore CONCLUDES that Plaintiff Davis
is unlikely to prevail on his state equal protection claim.
2.
Likelihood of Irreparable Harm
It is true that "an alleged constitutional infringement
will often alone constitute irreparable harm."
Co. v. Wilson, 125 F.3d 702, 715 (9th Cir. 1997)
quotation marks omitted).
Monterey Mech.
(citation and
This Court, however, has recognized
that, where a plaintiff fails to establish a likelihood of
success on the merits of its civil rights claim, without more,
the Court should not presume irreparable harm.
Am. Promotional
Events, Inc.-Nw. v. City & Cnty. of Honolulu, 796 F. Supp. 2d
1261, 1283
(D. Hawai'i 2011).
Insofar as this Court has
concluded that Plaintiff Davis has not established a likelihood
of success on the merits of any of the claims relevant to the
instant Motion, Plaintiff Davis is not entitled to the
presumption of irreparable harm.
This Court must therefore
examine the evidence presented to determine whether Plaintiff
Davis has proven a likelihood of irreparable harm.
68
Plaintiff Davis has argued that his prayer object is
irreplaceable because Kumu Lake passed away and therefore cannot
make Plaintiff Davis a replacement object.
at
~
6.]
[Suppl. Tengan Decl.
As Plaintiff Kane recognized, however, another
respected kumu, kahu, or kupuna could decide upon and fashion a
replacement object.
In fact, at the hearing on the Motion, Case
Manager Blank testified that she discovered a similar kukui nut
in a pouch during a second cell search after the February 20,
2012 search.
She confirmed that the kukui nut and pouch were not
the same items that she discovered during the February 20, 2012
cell search; those items had already been sent out of the
facility.
She testified that Plaintiff Davis was questioned
about the second kukui nut and pouch and was advised of the
consequences that he could face if he did not turn the items in.
Plaintiff Davis, however, never turned in the second kukui nut
and pouch.
Although Case Manager Blank and others conducted a
third cell search to try to find the second kukui nut and pouch,
they were unable to do so.
Although Plaintiff Davis cannot obtain a new prayer
item from Kumu Lake, Plaintiff Davis was able to obtain a
comparable prayer object to the one confiscated on February 20,
2012.
This Court therefore CONCLUDES that the likelihood of
irreparable harm in the absence of a preliminary injunction is
minimal.
69
3.
Balance of the Equities
"To determine which way the balance of the hardships
tips, a court must identify the possible harm caused by the
preliminary injunction against the possibility of the harm caused
by not issuing it."
Cayetano,
Univ. of Hawai'i Prof'l Assembly v.
183 F.3d 1096, 1108 (9th Cir. 1999).
As previously
noted in the discussion of the Turner factors, the burden imposed
by a preliminary injunction allowing Plaintiff Davis to retain
his prayer object could be significant because it may require
Saguaro to allow all inmates of all faiths to possess religious
objects of their choice, subject to certain safety restrictions.
Pla~ntiff
Davis has presented testimony that he feels a strong
spiritual injury every day without the Davis Prayer Object.
[Davis Decl. at
~
33.]
While the Court does not question the
sincerity of Plaintiff Davis's religious beliefs, the Court does
question the sincerity of his claim of spiritual injury, in light
of the testimony that he kept contraband in the pouch that held
his Davis Prayer Object and the testimony that he obtained and
refused to turn in a second kukui nut and pouch.
Even giving
Plaintiff Davis the benefit of the doubt, this Court FINDS that
the balance of the equities is, at best, neutral.
4.
Public Interest
This Court has recognized the following principles
relevant to the public interest inquiry:
70
The plaintiffs bear the initial burden
of showing that the injunction is in the
public interest.
See Winter [v. Natural
Resources Defense Council, Inc. 1, [555 U. S.
7,] 129 S. Ct. [365,] 378 [(2008)]. However,
the district court need not consider public
consequences that are "highly speculative."
In other words, the court should weigh the
public interest in light of the likely
consequences of the injunction.
Such
consequences must not be too remote,
insubstantial, or speculative and must be
supported by evidence.
Finally, the district court should give
due weight to the serious consideration of
the public interest in this case that has
already been undertaken by the responsible
state officials.
. who unanimously passed
the rules that are the subject of this
appeal.
See Golden Gate Rest. Ass'n [v. City
and County of San Francisco], 512 F.3d [1112]
at 1127 [(9th Cir. 2008)] ("The public
interest may be declared in the form of a
statute." (internal quotation marks
omitted)); see also Burford v. Sun Oil Co.,
319 U.S. 315, 318, 63 S. ct. 1098, 87 L. Ed.
1424 (1943) (" [I] t is in the public interest
that federal courts of equity should exercise
their discretionary power with proper regard
for the rightful independence of state
governments in carrying out their domestic
policy." (internal quotation marks omitted)).
Stormans, Inc. v. Selecky, 586 F.3d 1109, 1139-40
(9th Cir. 2009) (some citations and quotation
marks omitted).
The public interest inquiry
primarily addresses the impact on non-parties
rather than parties.
Am. Promotional Events, 796 F. Supp. 2d at 1284-85 (alterations
in Am. Promotional Events) .
This Court also FINDS that the public interest factor
is neutral.
While the public has a strong interest in ensuring
that native people are able to practice their religious beliefs,
71
even while incarcerated, the public also has a strong interest in
the safe and orderly administration of correctional facilities.
5.
Summary of Factors
Having considered all of the relevant factors,
this
Court CONCLUDES that, under either the Winter test alone or the
serious questions analysis within the Winter test, Plaintiff
Davis has not established that he is entitled to the preliminary
injunction requested in the Motion.
The Court emphasizes that the rulings in the instant
Order are solely for the purposes of the limited issues that
Plaintiff David and Plaintiff Kane placed before the Court.
The
Court expresses no opinion at this time on the merits of the
claims brought by Plaintiffs on behalf of the purposed class.
CONCLUSION
On the basis of the foregoing,
Plaintiff Richard Kapela
Davis's and Plaintiff James Kane Ill's Motion for Preliminary
Injunction,
filed April 26, 2012, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, SEPTEMBER 30, 2012.
lsi Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
72
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