Davis et al v. Abercrombie et al
Filing
286
ORDER GRANTING IN PART AND DENYING IN PART 220 DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST: "...Defendants' Motion to Dismiss for Failure to Exhaust, filed on December 31, 2012, is HEREBY GRANTED IN PART AND DENIED IN PAR T. The Motion is GRANTED as to: (1) the claims for regular meetings with a spiritual advisor made by Plaintiffs Davis, Hughes, Kaahu, and Poaha; (2) Plaintiff Galdones's retaliation claims and claims for regular meetings with a spiritual advisor ; and (3) Plaintiff Keawe's claims for daily religious congregation and establishment of an outdoor altar. The Motion is DENIED as to: (1) the state law claims; (2) Plaintiff Galdones's claims for congregation with other practitioners on a daily basis, participation in certain Makahiki rituals and ceremonies, access to sacred items, and establishment of an outdoor altar; (3) Plaintiff Keawe's claims for participation in certain Makahiki rituals and ceremonies, regular meetings wit h a spiritual advisor, and access to sacred items; and (3) all of Plaintiff Kane's religious claims. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on April 11, 2013. (bbb, )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
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Plaintiffs,
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vs.
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NEIL ABERCROMBIE, in his
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official capacity as the
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Governor of the State of
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Hawaii; TED SAKAI, in his
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official capacity as the
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Director of the Hawaii
Department of Public Safety; )
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CORRECTIONS CORPORATIONS OF
)
AMERICA,
)
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Defendants.
_____________________________ )
RICHARD KAPELA DAVIS, MICHAEL
HUGHES, DAMIEN KAAHU, ROBERT
A. HOLBRON, JAMES KANE, III,
ELLINGTON KEAWE, KALAI POAHA,
TYRONE KAWAELANILUA`OLE
NA`OKI GALDONES,
CIVIL NO. 11-00144 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS FOR FAILURE TO EXHAUST
Before the Court is Defendants Neil Abercrombie, in his
official capacity as the Governor of the State of Hawai`i, Ted
Sakai, in his official capacity as Director of the Hawai`i
Department of Public Safety, and Corrections Corporation of
America’s (collectively, “Defendants”) Motion to Dismiss for
Failure to Exhaust (“Motion”), filed on December 31, 2012.
no. 220.]
[Dkt.
Plaintiffs Richard Kapela Davis, Michael Hughes,
Damien Kaahu, Robert A. Holbron, James Kane, III, Ellington
Keawe, Kalai Poaha, and Tyron Kawaelanilua`ole Na`oki Galdones
(collectively, “Plaintiffs”) filed a memorandum in opposition to
the Motion on March 4, 2013.
reply on March 18, 2013.1
[Dkt. no. 235.]
Defendants filed a
[Dkt. no. 256.]
This matter came on for hearing on March 25, 2013.
Appearing on behalf of Plaintiffs were Andrew W. Sprenger, Esq.,
Sharla Ann Manley, Esq., and Leinaala L. Ley, Esq., and appearing
on behalf of Defendants were Jodie D. Roeca, Esq., and David
Lewis, Esq.
After careful consideration of the motion,
supporting and opposing memoranda, and the arguments of counsel,
Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART
for the reasons set forth below.
BACKGROUND
Plaintiffs are all Native Hawaiians and inmates
currently incarcerated at Saguaro Correctional Center (“SCC”) or
Red Rock Correctional Center (“RRCC”).
In their Second Amended
Complaint and Supplemental Complaint, Plaintiffs allege that
Defendants violated Plaintiffs’ rights to the free exercise of
their Native Hawaiian religion under the Hawai`i State
Constitution and the United States Constitution.
The specifics
of the relevant factual and procedural background in this case
are set forth in this Court’s September 30, 2012 Order Denying
Plaintiff Richard Kapela Davis’s and Plaintiff James Kane III’s
1
The Court granted Defendants’ Motion for Extension of Time
to File Response/Reply on March 11, 2013. [Dkt. no. 246.]
2
Motion for Preliminary Injunction.
2012 WL 4715307.
The Court
therefore will not repeat them here, and will only discuss the
background as it is relevant to the instant Motion.
A.
Grievance Process at SCC and RRCC2
The inmate grievance procedure contained in Corrections
Corporation of America’s (“CCA”) Policy 14-5 (the “Grievance
Policy”) governs the claims asserted in Plaintiffs’ Second
Amended Complaint and Plaintiff Galdones’s Supplemental
Complaint.
[Mem. in Supp. of Motion, Exh. A (Aff. of Juan
Valenzuela3 (“Valenzuela Aff.”)), Attachment A (CCA Policy 14-5);
Exh. B (Aff. of Carl Richey4 (“Richey Aff.”)), Attachment A (CCA
Policy 14-5).]
Upon an inmate’s arrival at the facility, SCC
provides an Inmate Handbook, which contains a summary of the
facility grievance policies and procedures.
¶¶ 7-8; Richey Aff. at ¶¶ 7, 10-11.]
[Valenzuela Aff. at
Copies of the grievance
policy are also made available in the library and housing units.
[Id.]
2
The grievance policies in place at SCC and RRCC are
substantially similar; unless any difference is specifically
mentioned in this section, the SCC grievance policy described
applies equally at RRCC.
3
Juan Valenzuela is the Grievance Coordinator for SCC.
[Valenzuela Aff. at ¶ 2.]
4
Carl Richey is the Grievance Coordinator for RRCC.
[Richey Aff. at ¶ 2.]
3
Under both the SCC and RRCC grievance policies, the
following are considered grievable matters: (1) violation of
state and federal laws, regulations, or court decisions; (2)
application of rules, policies, and/or procedures to inmates; (3)
individual staff and inmate actions, including any denial of
access to the grievance processes; (4) reprisals against inmates
for utilizing the grievance processes; and (5) any other matter
relating to the conditions of care and supervision within the
authority of CCA.
[Valenzuela Aff. at ¶ 10; Richey Aff. at ¶
12.]
The grievance policies at SCC and RRCC require that
inmates attempt to resolve problems informally, prior to filing a
formal grievance.
Service.
First, inmates must submit a Request for
[Id. at ¶ 13.]
If an inmate is not satisfied with the
outcome of the Request for Service, he may then attempt to
resolve the issue by filling out a 14-5A Informal Resolution
form, with a copy of the Request for Service attached, and
submitting it to his Case Manager.
[Id. at ¶ 14.]
The inmate must submit the 14-5A Informal Resolution
form within seven calendar days of the alleged incident.
¶ 15.]
[Id. at
When the Grievance Coordinator receives a 14-5A form, he
or she assigns a Case Manager to investigate the inmate’s
allegations.
[Id. at ¶ 16.]
days to investigate.
The Case Manager has seven working
The Grievance Coordinator has an additional
4
8 days to return a decision (“Informal Resolution”) to the
inmate.
[Id.]
If the inmate is dissatisfied with the outcome of the
Informal Resolution, he may file a Formal Grievance by filling
out a 14-5B form and submitting it to the Grievance Officer
within five calendar days of the Informal Resolution.
17-18.]
[Id. at ¶¶
Within fifteen days of the submission of the Formal
Grievance, the Grievance Coordinator investigates the complaint
and renders a decision.
[Id. at ¶ 19.]
If the inmate is dissatisfied with the decision of the
Grievance Coordinator, the inmate has five days from the date he
receives the decision to submit an appeal to the Warden.
¶¶ 19-20.]
The Warden then has fifteen days to respond to the
inmate’s appeal.
[Id. at ¶ 21.]
The Warden’s decision is final
and results in the exhaustion of administrative remedies.5
I.
[Id. at
[Id.]
Motion to Dismiss
In the instant Motion, Defendants argue that certain of
the claims in the Second Amended Complaint must be dismissed for
failure to exhaust available administrative remedies as required
5
The Grievance Policy includes additional procedures for
inmates to file Emergency Grievances, bypassing the first step in
the grievance process if the subject matter of the grievance is
such that compliance with the regular time guidelines would
subject the inmate to risk of personal injury. [Valenzuela Aff.
at ¶ 24.]
5
by the Prison Litigation Reform Act of 1996 (“PLRA”).6
[Mem. in
Supp. of Motion at 4.]
A.
Plaintiff Richard Davis
Defendants argue that Plaintiff Davis’s grievance file
reveals that, although he filed informal and formal grievances
concerning a number of religious issues in July and August of
2009, he did not submit an Informal Resolution or Formal
Grievance with respect to his claim that Native Hawaiian inmates
should be able to regularly meet with a respected religious
leader to assist in worship activities, and thus failed to
properly exhaust that claim.
[Id. at 6 (citing Valenzuela Aff.
at ¶ 35).]
B.
Plaintiff Michael Hughes
Defendants argue that Plaintiff Hughes similarly failed
to exhaust the spiritual advisor claim.
Valenzuela Aff. at ¶¶ 43-60).]
[Id. at 7 (citing
Thus, Defendants argue that
Hughes’s spiritual advisor claim must also be dismissed as
unexhausted.
C.
Plaintiff Damien Kaahu
Defendants argue that Plaintiff Kaahu likewise did not
exhaust his spiritual advisor claim.
Specifically, Kaahu’s only
grievances (an Informal Grievance and Formal Grievance filed in
6
Plaintiff Holbron is the only plaintiff whose claims are
not challenged in the Motion. [Mem. in Supp. of Motion at 4.]
6
2009) related to claims for daily congregation, Makahiki
participation, access to certain religious items, and an outdoor
altar, but did not raise the issue of his need to meet regularly
with a religious leader.
[Id. (citing Valenzuela Aff.,
Attachment N (Grievance #09-08-02)).]
D.
Plaintiff Kalai Poaha
Defendants argue that Plaintiff Poaha filed a Formal
Grievance requesting additional “Religious Practices” (religious
classes) to assist with his spiritual growth, but did not mention
in that grievance the subject of regular meetings with a
spiritual advisor.
[Id. at 8 (citing Valenzuela Aff. at ¶ 67,
Attachment O (Grievance #0032-09)).]
As such, Defendants argue
that Poaha’s spiritual advisor claim must be dismissed for
failure to exhaust.
E.
Plaintiff Tyrone Galdones
Defendants argue Galdones failed exhaust his available
administrative remedies with respect to four of the five claims
alleged in the Second Amended Complaint, specifically: (1)
congregating with other practitioners on a daily basis; (2)
participating in certain ritual and ceremonies marking the
beginning and end of the Makahiki season; (3) access to certain
sacred items; and (4) establishing an out-of-doors altar.
Defendants explain that on August 5, 2009, Galdones
submitted an Informal Resolution regarding his requests to: (1)
7
gather with other Native Hawaiian inmates on a daily basis; (2)
construct an altar and construct and maintain a garden of Native
Hawaiian plants; (3) participate in certain ritual and ceremonies
marking the beginning and end of the Makahiki season; and (4)
access certain sacred items.
Defendants argue, however, that
Galdones failed to then file a Formal Grievance and, therefore,
did not exhaust his available administrative remedies with
respect to those four claims.
[Id. at 8-9.]
Defendants also argue that Galdones’s retaliation
claim, brought under the Supplemental Complaint, was likewise not
properly exhausted.
Galdones petitioned the Court to file the
Supplemental Complaint on July 5, 2012, [dkt. no. 110,] was
granted permission, and filed the Supplemental Complaint on
August 22, 2012.
[Dkt. no. 146.]
Galdones filed Informal
Resolution #12-06-13 on June 21, 2012, requesting for the first
time regular meetings with a spiritual advisor and personal
retention of certain sacred items.
9.]
[Mem. in Supp. of Motion at
He subsequently filed a Formal Grievance from the denial of
the Informal Resolution on July 10, 2012, which the Warden denied
July 19, 2012.
12).]
[Valenzuela Aff., Attachment Q (Grievance #098-
Defendants point out, however, that this series of
informal and formal grievances came after July 5, 2012, the date
when Galdones first entered this litigation by petitioning the
Court for leave to file the Supplemental Complaint.
8
As such,
Defendants argue that Galdones cannot satisfy the PLRA’s pre-suit
litigation requirement with respect to the spiritual advisor
claim, as well as the other four claims.
Thus, Defendants argue
that all of Galdones’s claims should be dismissed for failure to
exhaust.7
F.
Plaintiff James Kane
Plaintiff Kane filed both an Informal Grievance (#09-
132) and Formal Grievance (#09-132) in September 2009,
challenging the five religious claims at issue in the Second
Amended Complaint.
He did not, however, appeal the denial of his
Formal Grievance to the Warden.
[Mem. in Supp. of Motion at 11
(citing Richey Aff. at ¶¶ 36-37).]
As such, Defendants argue
that all of Kane’s claims must be dismissed for failure to
exhaust.
G.
Plaintiff Ellington Keawe
On September 7, 2010, Plaintiff Keawe filed Informal
Resolution #10-161 regarding religious observances for certain
Hawaiian holidays but, after Chaplain Moore advised Keawe that
7
Defendants state that Galdones also filed an appeal from
the Disciplinary Report that resulted in his placement in
segregation, claiming that he was being punished in retaliation
for his protected advocacy. [Valenzuela Aff. at ¶ 77, Attachment
R.] Defendants state that retaliation claims are grievable, but
not in the context of an appeal from a disciplinary charge and
classification decision–Galdones was required to file a separate
grievance raising retaliation or the other claims alleged in the
Supplemental Complaint. [Mem. in Supp. of Motion at 11 n.7
(citing Valenzuela Aff., Attachment A at Policy 14-5.4(F) and
(G)(5)).]
9
RRCC recognized Kamehameha, Makahiki, and Prince Kuhio Days, and
that special meals were served on those holidays, Keawe indicated
the Informal Resolution was resolved on September 13, 2010.
[Richey Aff. at ¶ 42.]
On November 11, 2010, Keawe submitted
Formal Grievance #10-161 regarding communal religious services,
as well as new allegations, including claims for an altar for
prayer and a space to practice spiritual dance, language, arts
and crafts, and Hawaiian studies.
[Id. at ¶ 43.]
In a
November 19, 2010 memorandum, Keawe was informed that he had the
opportunity to study the Native Hawaiian religion every Thursday
in the unit where he is housed.
Keawe was also told that he was
given four special meals in 2010 for the closing and opening of
Makahiki, Prince Kuhio Day, and King Kamehameha Day.
Keawe failed to appeal Formal Grievance #10-161.
[Id.]
[Id.]
Defendants argue that Keawe thus failed to properly exhaust his
religious claims.
In sum, Defendants argue that Plaintiffs Galdones,
Kane, and Keawe should have all of their claims dismissed for
failure to exhaust.
Defendants additionally argue that the
spiritual advisor claims brought by Plaintiffs Davis, Hughes,
Kaahu, and Poaha should likewise be dismissed as unexhausted.
II.
Plaintiffs’ Opposition
In their memorandum in opposition, Plaintiffs argue
that the individual plaintiffs either actually exhausted, or
10
should be deemed to have exhausted all administrative remedies,
given the particular circumstances of their cases.
A.
Plaintiff James Kane
Plaintiffs argue that Plaintiff Kane should be deemed
to have exhausted all administrative requirements because RRCC
did not follow its own procedures and Warden Stolc decided Kane’s
procedurally flawed grievance on its merits.
Plaintiffs state
that on or about July 20, 2009, Kane made four Requests for
Service asking (1) that he be allowed to gather daily with fellow
Native Hawaiian inmates to observe the Native Hawaiian religion
in an outdoor location; (2) that he be allowed to observe the
opening and closing of Makahiki with certain protocol; (3) for
access to sacred items; and (4) to construct an outdoor altar and
garden.
[Mem. in Opp. at 7 (citing Kane Decl., Exhs. 1-4 (9/09
Inmate Request Forms)).]
These requests were denied in part and
granted in part by the Chaplain.
[Id.]
Kane next sent four identical Requests for Service to
RRCC Warden Stolc.
Request Form).]
[Kane Decl. at ¶ 9, Exh. 7 (9/16/09 Inmate
Kane simultaneously submitted an Informal
Grievance asking that his Requests for Service be forwarded to
the Warden.
[Kane Decl., Exh. 5 (Informal Resolution #09-132).]
Kane’s Informal Grievance was denied by Carl Richey.
Decl., Exh. 5.]
[Kane
Kane next submitted a Formal Grievance on the
14-5B Form, claiming a right to “practice my Native Hawaiian
11
religion.”
[Kane Decl., Exh. 6.]
The Formal Grievance was
denied on September 29, 2009 by RRCC Assistant Warden Hart, who
stated that RRCC follows the state’s policy on Hawaiian religion.
[Id.]
The same day, however, Warden Stolc wrote the following
disposition/response on Kane’s Inmate Request Form: “I have
attached the guidelines to be used for the observance [of] the
Native Hawaiian Religion.
written.”
We will follow these guidelines as
[Kane Decl., Exh. 7.]
Plaintiffs argue that Warden
Stolc’s decision on the Inmate Request Form should be considered
a final decision on the merits, such that Kane has met his
exhaustion requirements.
B.
Plaintiff Ellington Keawe
Plaintiffs argue that Plaintiff Keawe exhausted his
administrative remedies in 2008, and that his requests for sacred
items, the observance of Makahiki, and access to a spiritual
advisor were granted, thus no further appeals were necessary for
exhaustion.
First, Plaintiffs state that in October 2008, Keawe
submitted an Informal Grievance requesting adequate time and
space to study and practice Native Hawaiian religion and culture.
[Keawe Decl., Exh. 1 (Informal Resolution #08-0190).]
The
chaplain of RRCC, Christopher Aguirre, responded to the
grievance, stating that “Inmate is agreeing to work through the
chaplaincy to observe and participate in Hawaiian Religious
12
activities.”
[Id.]
Plaintiffs claim that “Mr. Keawe followed
the grievance appeal through to the Warden of [RRCC] Bruno
Stolc,” and that Warden Stolc “made a final decision on Mr.
Keawe’s grievance,” denying it “based on the State’s guidelines
for Native Hawaiian religion.”
[Id. at 12 (citing Keawe Decl. ¶¶
8-10, Exh. 2 (Form 14-5A Informal Resolution #08-190)8, Exh. 3
(Form 14-5B Inmate Grievance #08-190)9).]
Plaintiffs argue that,
when Warden Stolc denied Keawe’s 2008 request, that was a final
decision on the merits, and Keawe exhausted his administrative
remedies as to his 2008 grievance.
[Id. at 13-15.]
Second, Plaintiffs argue that when some of Keawe’s
requests were granted, he was not required to further appeal
those requests for purposes of exhaustion.
Specifically,
Plaintiffs state that Keawe’s requests for certain sacred items
were granted in part and, thus, no further administrative action
was required, even though the prison officials ultimately failed
to give him the requested sacred items.
[Id. at 16 (citing Keawe
8
The “Grievance Officer Response” on the Informal
Resolution states “Your Informal was due back on 10-29-08. It
was returned on 10-29-08. It was indicated as resolved.” [Keawe
Decl., Exh. 2.]
9
The “Warden/Administrator’s Decision” on the Inmate
Grievance form states “Attached you will find the guidelines
provided by the Department of Public Safety as they related to
Makahiki. There is no discrimination as you have been allowed to
celebrate Makahiki as a Native Hawaiian holiday. Your grievance
is denied.” The decision is dated December 15, 2008. [Keawe
Decl., Exh. 3.]
13
Decl., Exh. 8).]
Similarly, Plaintiffs argue that Keawe’s
request for access to a spiritual advisor was granted on August
8, 2010, when he received a letter from Chaplain Aguirre stating
that RRCC has a “Hawaiian cultural advisor Ka`iana Haili” and
that he visits RRCC when he “visits the mainland from Hawaii.”
[Id.; Keawe Decl. ¶ 15, Exh. 9.]
Keawe’s request for
accommodations for the opening of Makahiki for November 2010 were
likewise granted in part, Plaintiffs argue. [Id.; Keawe Decl.,
Exh. 6.]
Plaintiffs argue that when, ultimately, prison
officials failed to actually provide Keawe with these
accommodations, he was not required to undertake any further
administrative action, as prisoners have exhausted their
available remedies when they are granted the requested
administrative relief.
C.
[Id. at 15-16.]
Plaintiff Richard Davis
With respect to Plaintiff Davis, Plaintiffs argue that
he is entitled to an exception to the general exhaustion rule
because “improper screening by prison officials render[ed]
administrative remedies ‘effectively unavailable.’”
[Id. at 21.]
Plaintiffs first argue that Davis filed a Request for Service and
Informal Grievance for access to a spiritual advisor that, if
pursued through all administrative appeals, would have been
sufficient for exhaustion, but that Grievance Coordinator
Valenzuela “improperly screened” his grievances, incorrectly
14
classifying them as to their content, and warning him against
abusing the grievance system. [Id. at 21-23.]
Plaintiffs further argue that: (1) because Valenzuela
stated on Davis’s Informal Resolution “please refrain from abuse
of the grievance system,” after repeating that Davis’s requests
were denied because SCC policies addressed his previous requests,
Davis was not required to further exhaust his claim, [id. at 19
(citing Davis Decl., Exh. 4)]; and (2) because the State
Defendants told him he could “go back to court” if he disagreed
with the SCC response, he had effectively exhausted.
[Id. at
20.]
D.
Plaintiff Michael Hughes
Plaintiffs argue that Plaintiff Hughes’s claim for a
spiritual advisor should not be dismissed because Hughes should
also be excused from the exhaustion requirement because of an
inadvertent mistake he made when listing the date on his Informal
Grievance form, and because the prison librarian to whom he gave
the form turned it in late.
Exhs. 1, 3.]
[Id. at 24-25 (citing Hughes Decl.,
Plaintiffs argue that the grievance was
“improperly screened when it was rejected for timeliness and,
thus [Hughes’s] claim should be decided on the merits.”
[Mem. in
Opp. at 25.]
E.
Plaintiff Tyrone Galdones
First, Plaintiffs argue that Plaintiff Galdones
15
properly exhausted all available administrative remedies for his
retaliation claim.
Galdones appealed his disciplinary action to
the SCC Warden; the appeal was denied.
[Id. at 26 (citing
Motion, Valenzuela Aff., Attachment R, p. 145 (Disciplinary
Appeal Dated 5/18/2012)).]
Grievance on June 11, 2012.
Galdones also filed a Formal
[Id. (citing Motion, Valenzuela
Aff., Attachment R, p. 143-144 (Formal Grievance #072-12)).]
The
Formal Grievance was denied because “disciplinary is not
grievable per Policy 14-5.”
[Id.]
Plaintiffs emphasize that
Galdones made a good faith effort to exhaust but was “stymied by
prison officials’ unreasonable interpretation of grievances and
hyper-technical application of the grievance policy.”
29.]
[Id. at
Plaintiffs argue that Galdones gave prison officials
sufficient information regarding the nature of his grievance and
that, as such, this claim should be deemed to be exhausted. [Id.
at 30-32.]
Plaintiffs further argue that Galdones’s claims
regarding religious rights should likewise not be dismissed, as
he exhausted those claims as well.
Plaintiffs state that
Galdones submitted an Informal Grievance in June 2012, while in
segregation, regarding access to religious items and advisors in
segregation.
[Id. at 32 (citing Motion, Valenzuela Aff.,
Attachment Q (Inmate Grievance #098-12)).]
Galdones was released
from segregation on June 21, 2012, thus rendering his claims
16
moot.
[Id.]
Plaintiffs argue that it was “reasonable” for
Galdones to seek leave to file a Supplemental Complaint two weeks
after he was released, as it was unclear whether he was required
to exhaust his claims related to segregation once he was back in
general population.
[Id. at 33.]
As to his claims regarding
religious practice (daily gatherings, a sacred space, sacred
items, and observing Makahiki) when in general population,
Plaintiffs point to the grievance logs provided with the Manley
Declaration (Exhibits Q and N) and state that Galdones’s name
appears on both the Informal and Formal Grievance Logs.
[Id. at
33-34.]
F.
Arguments Regarding State Claims
Plaintiffs argue that all of their state law claims
survive Defendants’ exhaustion arguments, as the PLRA does not
apply to state law claims.
[Id. at 38 (citing 42 U.S.C.
§ 1997e(a)).]
III. Reply
A.
Plaintiff Kane
In their Reply, Defendants argue that, while Plaintiffs
argue that there is a lack of “guidance” on the grievance
procedure in the Inmate Handbook, Kane specifically availed
himself of Policy 14-5 by filing an Informal and Formal Grievance
regarding the five religious claims at issue in this case.
[Reply at 3 (citing Mem. in Supp. of Motion, Exh. B (Richey Aff.)
17
at ¶¶ 11, 36-37).]
Defendants argue that Warden Stolc’s
“commendable practice of responding to requests for services
which are technically just the first step of the grievance
process” did not excuse Kane from exhausting each level of the
grievance process.
B.
[Id. at 4 (quoting Mem. in Opp. at 8).]
Plaintiff Keawe
Defendants note that Plaintiff Keawe does not dispute
his failure to exhaust either his 2009 or 2010 grievances, [id.
at 5 (citing Mem. in. Opp., Keawe Decl. at ¶¶ 15-16),] but rather
argues that his partially successful 2008 grievance satisfied the
PLRA exhaustion requirements and that the alleged “continuing
violation” justifies the Court in reaching the merits of his
claims.
[Id. (citing Mem. in Opp. at 15).]
The 2008 grievances,
however, Defendants argue, do not exhaust the same religious
claims he seeks to assert in this action, and should not be
considered because of Hawaii’s two-year statute of limitations
governing Section 1983 claims.
[Id. at 6.]
As such, Defendants
argue that Keawe’s federal claims must be dismissed.
C.
Plaintiff Galdones
First, Defendants argue that Galdones’s 2009 grievance
was not exhausted.
Defendants agree that the side-by-side
analysis Plaintiffs conduct of the Formal Grievances Log and the
Informal Resolutions Log creates a factual issue suggesting that
Galdones may have filed a Formal Grievance (Formal Grievance
18
(#0036-09) on August 11, 2009) related to his August 5, 2009
Informal Grievance denial.
Defendants argue, however, that the
mere filing of a Formal Grievance is insufficient for exhaustion;
he must appeal the denial of his Formal Grievance to the Warden
within 5 days in order to exhaust.
Galdones has presented no
evidence suggesting such an appeal was filed.
[Id. at 9-10.]
Second, Defendants argue that Galdones’s arguments
regarding his two separate 2012 grievances are also without
merit.
Defendants emphasize that, while the timing of the filing
of his Supplemental Complaint may have precluded exhaustion prefiling, this is not a legal excuse for filing suit before
exhausting the claim.
[Reply at 10-11.]
As such, Defendants
argue that Galdones’s religious claims must be dismissed as
unexhausted.
With respect to Galdones’s retaliation claims,
Defendants argue that when Galdones was placed in segregation he
could have, but did not, file grievances complaining of
retaliation and seeking something other than reversal of
disciplinary conviction.
[Id. at 12 (citing Motion, Exh. 1,
Attachment A (Policy 14-5(F)(1))).]
Instead, his May 31, 2012
Formal Grievance was focused solely on his liberty interest in
avoiding segregation and his requested action involved only
disciplinary relief.
Attachment R).]
[Id. at 12-13 (citing Motion, Exh. A,
Because the redress Galdones sought was focused
19
solely on quasi-criminal remedies, he failed to exhaust his
protected speech/retaliation claim through the grievance process.
[Id. at 13-14.]
D.
Plaintiff Davis
Defendants note that Plaintiffs correctly state that
Davis submitted an August 11, 2010 Informal Resolution regarding
his claim that he should be permitted to meet regularly with a
spiritual advisor, but that the document was lost.
(citing Mem. in Opp., Davis Decl., Exhs. 1 & 9).]
[Id. at 14
Defendants
emphasize, however, that the fact that Davis filed an Informal
Resolution fails to show that he exhausted the grievance process,
as he does not show that he filed a Formal Grievance and appealed
any adverse decision to the Warden.
Defendants note that Davis
was informed that the Informal Resolution was lost and instructed
to resubmit it in a Memorandum dated August 27, 2010.
Davis’s
argument that he did not resubmit because Valenzuela told him he
was abusing the system is belied by the fact that, after
Valenzuela told him not to abuse the system, Valenzuela granted
Davis an extension and instructed him to “please re-file on case
#10-08-12 . . . As we discussed in the library office with
Librarian Whatley as witness, I need you to file again.
The
faster you re-file the quicker I can get to you a resolution.”
[Id. at 15-16 (quoting Mem. in Opp., Davis Decl., Exh. 9).]
Similarly, Defendants argue that the statement by Hawai`i
20
Contract Monitor Kimura, dated August 25, 2010, that Davis “may
go back to court to seek legal action” does not legally excuse
him from exhausting. [Id. at 16-17.]
E.
Plaintiff Hughes
Defendants accept as true Hughes’s testimony that he
timely delivered his August 2010 Informal Resolution form to the
librarian for delivery to the Grievance Coordinator, and that the
delayed filing was not attributable to Hughes.
[Id. at 18.]
Defendants argue, however, that the mere filing of an Informal
Resolution, and Hughes’s subsequent filing of a Formal Grievance,
were not enough, as Hughes failed to file an appeal to the Warden
from the denial of the Formal Grievance.
F.
[Id.]
Plaintiffs Kaahu and Poaha’s Spiritual Advisor Claims
Defendants note that Plaintiffs’ memorandum in
opposition does not dispute the Motion with respect to the
unexhausted spiritual advisor claims of Plaintiffs Kaahu and
Poaha.
[Id. at 19.]
STANDARD
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
21
exhaustion is mandatory, “regardless of the relief offered
through administrative procedures.”
Booth v. Churner, 532 U.S.
731, 741 (2001) (footnote and citation omitted); see also Jones
v. Bock, 549 U.S. 199, 211 (2007) (“There is no question that
exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.”).
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) (citation and quotation
marks omitted).
Proper exhaustion means that “a prisoner must complete
the administrative review process in accordance with the
applicable procedural rules, including deadlines, as a
precondition to bringing suit in federal court.”
Id. at 88.
The
Supreme Court has rejected, however, the notion that a prisoner’s
entire complaint must be dismissed if any one claim was not
exhausted—the “total exhaustion” rule—concluding that only
non-exhausted claims need to be dismissed.
223-224.
Jones, 549 U.S. at
In reaching that conclusion, the Supreme Court
22
emphasized that a prisoner’s complaint must be reviewed claim by
claim for exhaustion purposes.
Id. at 224.
DISCUSSION
I.
State Law Claims
Plaintiffs note that the PLRA, by its own terms,
applies only to claims under federal law, and not to any state
law claims.
See 42 U.S.C. § 1997e(a).
Motion only, Defendants do not disagree.
For purposes of the
[Reply at 19.]
As
such, the Court DENIES the Motion as to the following claims in
the Second Amended Complaint: (1) Counts XI-XV under Article I,
Section 5 of the Hawai`i Constitution; (2) Counts XVI-XX under
Article I, Section 6 of the Hawai`i Constitution; (3) Counts XXIXXVI under Article XII, Section 7 of the Hawai`i Constitution;
and (4) Count XXVII of the Supplemental Complaint seeking relief
for unlawful retaliation under Hawai`i law.
II.
Plaintiff Davis
Defendants argue that Plaintiff Davis failed to exhaust
his claim regarding the right to meet regularly with a spiritual
advisor.
The Court agrees.
The record indicates that Davis
submitted an Informal Resolution regarding his spiritual advisor
claim on August 11, 2010, but that the document was lost.
in Opp., Davis Decl., Exhs. 1 & 9.]
[Mem.
By memorandum dated
August 27, 2010, Davis was informed that the Informal Resolution
had been lost, and was instructed resubmit the Informal
23
Resolution.
[Id. Exh. 9.]
Specifically, Grievance Coordinator
Valenzuela granted Davis an extension to file his grievance and
instructed him to “please re-file . . . . The faster you re-file
the quicker I can get to you a resolution.”
[Id.]
Davis did
not, however, refile, nor did he file a Formal Grievance or
subsequent Warden appeal regarding his spiritual advisor claim.
The fact that Davis filed Formal Grievances and Warden appeals
concerning his other challenges (regarding Makahiki protocols and
registration as a Native Hawaiian Practitioner) undermines his
arguments that he did not believe he was required or permitted to
exhaust his administrative remedies as to his spiritual advisor
claim.
[See Davis Decl. at ¶ 16.]
The Court therefore GRANTS
the Motion as to Plaintiff Davis’s spiritual advisor claim.
III. Plaintiff Hughes
Defendants argue that Plaintiff Hughes similarly failed
to exhaust his spiritual advisor claim.
The Court agrees.
Hughes submitted an untimely Informal Resolution requesting
access to a spiritual advisor on September 7, 2010; the Informal
Resolution was filed 25 days after Hughes’s Inmate Request Form
regarding the same issue, dated August 13, 2010.
Valenzuela Aff. at ¶ 50.]
[Motion,
Even taking as true Hughes’s testimony
that he timely delivered the Informal Resolution form to the
librarian for delivery to the Grievance Coordinator, Hughes still
failed to exhaust the claim, as he never filed any Formal
24
Grievance or Warden appeal subsequent to the filing of his
Informal Resolution.
As such, the Court GRANTS the Motion as to
Plaintiff Hughes’s spiritual advisor claim.
IV.
Plaintiffs Kaahu and Poaha
Defendants argue that Plaintiffs Kaahu and Poaha
likewise failed to exhaust their spiritual advisor claims.
Plaintiffs do not dispute this in their memorandum in opposition.
Because there is no evidence that Plaintiffs Kaahu and Poaha
filed any grievances regarding access to a spiritual advisor, the
Court GRANTS the Motion as to Plaintiffs Kaahu and Poaha’s
spiritual advisor claims.
V.
Plaintiff Galdones
First, as to Plaintiff Galdones’s claims for religious
rights, Defendants argue that Plaintiff Galdones failed to
exhaust the following claims: (1) congregation with other
practitioners on a daily basis, (2) participation in certain
Makahiki rituals and ceremonies, (3) access to sacred items, and
(4) establishment of an outdoor altar.
Galdones filed religion-
related grievances in 2009 and 2012.
On August 5, 2009, Galdones submitted Informal
Resolution #09-08-10 regarding his requests to gather daily with
other Native Hawaiian inmates, construct an altar and garden of
Native Hawaiian plants, participate in Makahiki rituals and
ceremonies, and access certain sacred items.
25
On August 7, 2009,
the Informal Resolution was denied, and Galdones was informed
that SCC already had a religious program in place that was
approved by the Hawaii Department of Public Safety.
Aff., Attachment P.]
[Valenzuela
As evidence that Galdones filed a
subsequent Formal Grievance after the denial of his Informal
Resolution, Plaintiffs point to pages from the SCC Informal
Resolution Tracking Sheet and Formal Grievance Tracking Sheet.
On the Informal Resolution Tracking Sheet, Informal Resolution
#09-08-10 is classified as “Religious” and “Unresolved,” and
under the “Comments” section, “#0036-09" is listed.
Opp., Manley Decl., Exh. N.]
[Mem. in
This number is apparently referring
to Formal Grievance #0036-09, listed on the Formal Grievance
Tracking Sheet as submitted on August 11, 2009.
[Id.]
Formal
Grievance #0036-09 is listed as “Found not in favor” on the
Formal Grievance Tracking Sheet; however, neither party has
offered evidence of the actual denial of Galdones’s 2009 Formal
Grievance.
Plaintiffs argue that Galdones was not required to
appeal to the Warden, as no evidence of a denial of the 2009
Formal Grievance exists.
The Court agrees that, absent proof
that Galdones was given notice that his 2009 Formal Grievance was
denied, he was not required to make any appeal to the Warden.
As
such, the Court DENIES the Motion as to Galdones’s federal
religious claims contained in his 2009 grievances, namely, for
(1) congregation with other practitioners on a daily basis, (2)
26
participation in certain Makahiki rituals and ceremonies, (3)
access to sacred items, and (4) establishment of an outdoor
altar.
Galdones submitted Informal Resolution #12-06-13 in
June 2012, grieving his inability to meet with a spiritual
advisor and his lack of access to sacred items while in
segregation.
[Valenzuela Aff., Attachment Q.]
segregation on June 21, 2012.
He left
Plaintiffs argue that, because
“Defendants’ policies are silent as to whether Mr. Galdones was
required to exhaust his claims relating to his ability to
practice Native Hawaiian religion while he was in segregation
once he had been released into general population,” it was
reasonable for Galdones to seek leave of the court to supplement
the Complaint with his claims on July 5, 2012, prior to further
exhausting his administrative remedies.
[Mem. in Opp. at 33.]
Galdones did, however, submit a Formal Grievance and a Warden
appeal subsequent to the denial of his Informal Grievance on
July 5, 2012.
[Valenzuela Aff., Attachment Q.]
The Court is
therefore unpersuaded by Galdones’s argument that he did not
believe administrative relief was still available to him once he
was released back into general population.
Because Galdones
failed to exhaust his administrative remedies prior to filing his
motion for leave to supplement the complaint, the Court FINDS
that Galdones failed to exhaust his administrative remedies as to
27
his claim in his 2012 grievance for access to a spiritual
advisor.
2006).
See Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir.
As such, the Court GRANTS the Motion as to Galdones’s
spiritual advisor claim.
Second, as to Galdones’s claims for retaliation,
Galdones filed a Formal Grievance (#072-12) on May 31, 2012.
[Valenzuela Aff., Attachment R.]
Plaintiffs do not contend that
Galdones filed an Informal Resolution or Warden appeal regarding
his claim for retaliation, but argue that he nevertheless made a
“good faith effort” to exhaust because of his filing of the
Formal Grievance, and his utilization of the disciplinary appeal
process.
[Mem. in Opp. at 29-30.]
Galdones’s Formal Grievance,
while stating that he was “being harassed, discriminated against,
falsely and viciously accused, and confined to segregation for
sincerely exercising faith in [his] Native Hawaiian religious
beliefs,” requested relief in the form of a reconsideration of
his disciplinary conviction, copies of the investigation report
and witness statements related to his disciplinary matter, and
dismissal and expungement of “all charges.”
Attachment R.]
[Valenzuela Aff.,
Because the relief sought was disciplinary in
nature, CCA officials rejected his Formal Grievance, noting that
disciplinary issues are non-grievable pursuant to the Grievance
Policy.
Because Galdones never filed an Informal Grievance,
Formal Grievance, or Warden appeal requesting some relief other
28
than reversal of his disciplinary conviction, the Court FINDS
that he failed to exhaust his retaliation claim.
The Court thus
GRANTS the Motion as to Galdones’s retaliation claim.
VI.
Plaintiff Kane
Defendants argue that Plaintiff Kane failed to exhaust
his administrative remedies because he failed to appeal the
September 29, 2009 denial of his Formal Grievance.
Kane filed
both an Informal Grievance (#09-132) and Formal Grievance
(#09-132) challenging the five religious claims at issue in the
instant action in September of 2009.
[Kane Decl., Exhs. 5 & 6.]
His Informal Grievance was denied and forwarded, per Kane’s
request, to Warden Stolc.
[Kane Decl., Exh. 5.]
His Formal
Grievance was likewise denied on September 29, 2009.
On the same
day, Warden Stolc rendered a decision on Kane’s Informal
Grievance, stating “I have attached the guidelines to be used for
the observance of the Native Hawaiian Religion.
these guidelines as written.”
We will follow
[Kane Decl., Exh. 7.]
Plaintiffs
contend that this decision constituted satisfaction of Kane’s
exhaustion requirement.
The Court agrees.
According to the RRCC
grievance procedure, Kane’s Informal Grievance was procedurally
ineligible to be reviewed by the Warden until it had gone through
the formal grievance process.
By nevertheless reviewing Kane’s
procedurally defective Informal Grievance, Warden Stolc bypassed
the RRCC grievance procedure and issued Kane a decision on the
29
merits of his grievance.
As such, the prison waived its right to
raise an exhaustion defense as to Kane’s grievance.
See
Rodenhurst v. State of Hawai`i, No. 08-00396 SOM-LEK, 2009 WL
2365433, at *5 n.6 (D. Hawai`i July 30, 2009) (noting that
defendants waived their challenges to certain grievances based on
technical defects where they nevertheless processed the
technically defective grievances); Bradley v. Williams, No.
07–1870 HU, 2009 WL 198014, at *2 (D. Or. Jan. 23, 2009) (“[T]his
court finds that defendants waived their right to reject
plaintiff’s grievance by responding to the defective grievance
and then responding to both appeals of the grievance.”); Hammett
v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (“PLRA’s exhaustion
requirement is satisfied if prison officials decide a
procedurally flawed grievance on the merits.”).
The Court
therefore DENIES the Motion as to all of Plaintiff Kane’s claims.
VII. Plaintiff Keawe
Defendants argue that Plaintiff Keawe failed to exhaust
all five of the religious claims he seeks to assert in this
action ((1) daily religious congregation, (2) Makahiki
participation, (3) regular meetings with a spiritual advisor, (4)
access to certain sacred items, and (5) establishment of an
outdoor altar).
In October 2008, Keawe submitted an Informal
Grievance complaining that Native Hawaiians were “being denied
consent and facilitation by RRCC staff to prepare for and execute
30
formal communal religious observances, feasts, and fund raisers
for our Hawaiian cultural heritage.
This includes all recognized
Hawaiian holidays such as Kamehameha Day, Prince Kuhio day, and
Makahiki.”
Keawe requested that RRCC “[p]ermit formal communal
religious observances, feasts, and fund raisers.”
Exh. 1.]
[Keawe Decl.,
In response to the Informal Grievance, the chaplain of
RRCC, Christopher Aguirre, stated that “Inmate is agreeing to
work through the chaplaincy to observe and participate in
Hawaiian Religious activities.”
[Id.]
Keawe then followed the
grievance appeal through to Warden Stolc, listing the requested
action on the Formal Grievance as “Hold Makahiki Opening Feast
for Hawaiian RRCC population.”
[Keawe Decl., Exh. 3.]
Warden
Stolc denied the grievance on December 15, 2008, citing the
State’s guidelines for Native Hawaiian religious practice.
[Id.]
Plaintiffs argue that Keawe thus exhausted his administrative
remedies for certain of his religious claims in 2008.
Defendants correctly note, however, that because the
instant suit was filed on February 7, 2011, Hawaii’s two-year
statute of limitations governing 42 U.S.C. § 1983 renders Keawe’s
§ 1983 claims untimely if related to his 2008 grievances.
See
Linville v. State of Hawai`i, 874 F. Supp. 1095, 1104 (D. Hawai`i
1994).
Keawe thus cannot rely upon his 2008 grievances for
exhaustion of his § 1983 claims.
Keawe’s Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq.
31
(“RLUIPA”) claims, however, are subject to the four-year statute
of limitations under 28 U.S.C. § 1658, as RLUIPA was enacted in
2000.
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382
(2004) (concluding that “a cause of action “aris[es] under an Act
of Congress enacted” after December 1, 1990—and therefore is
governed by § 1658’s 4–year statute of limitations—if the
plaintiff’s claim against the defendant was made possible by a
post–1990 enactment.”); see also United States v. Maui County,
298 F. Supp. 2d 1010, 1012 (D. Hawai`i 2003).
As such, the Court
FINDS that Keawe exhausted his RLUIPA-based Makahiki claim.
As to Keawe’s other claims, in August of 2010, Keawe
submitted four inmate request forms requesting daily group
outdoor gatherings for worship, items and services for the
celebration of Makahiki, construction of an outdoor garden of
Native Hawaiian plants and altar, regular meetings with a
spiritual advisor, and access to sacred items.
Most of Keawe’s
requests were denied, with reference made to existing guidelines
and regulations related to the practice of the Native Hawaiian
religion in RRCC.
[Keawe Decl., Exhs. 5-9.]
Keawe failed to
further pursue or exhaust those claims that were denied.10
10
On September 7, 2010, Keawe filed Informal Resolution
#10-161 regarding religious observances for certain Hawaiian
holidays but, after Chaplain Moore advised Keawe that RRCC
recognized Kamehameha, Makahiki and Prince Kuhio Days and that
special meals were served on those holidays, Keawe indicated by
signing the form that the Informal Resolution was resolved on
(continued...)
32
Keawe was, however, told that he would be permitted to
celebrate the opening and closing of the Makahiki season and to
meet with the RRCC’s Hawaiian Cultural advisor, Ka`iana Haili, in
accordance with the RRCC guidelines, [Keawe Decl., Exhs. 6, 9,]
and that his request for access to sacred items for ceremonial
use (but not daily use) was granted.
[Keawe Decl., Exh. 8.]
Plaintiffs argue that Keawe was not required to exhaust his
spiritual advisor, Makahiki, and sacred items requests further
because they were granted.
The Court agrees.
See Harvey v.
Jordan, 605 F.3d 681, 686 (9th Cir. 2010) (finding that an inmate
“exhausted the administrative process when prison officials
purported to grant relief that resolved his due process grievance
to his satisfaction.”); Rodenhurst v. State of Hawai`i, No. 0800396 SOM-LEK, 2009 WL 2365433, at *4 (D. Hawai`i July 30, 2009)
(“No further administrative action is required of an inmate who
is successful in a grievance proceeding.”).
As such, the Motion
is DENIED as to Keawe’s spiritual advisor, Makahiki, and sacred
items claims.
The Motion is GRANTED as to Keawe’s claims for
10
(...continued)
September 13, 2010. [Richey Aff., Attachment E.] On November
11, 2010, however, Keawe submitted Formal Grievance #10-161
regarding communal religious services, including new requests,
such as having an altar for prayer and a space to practice
spiritual dance, language, arts and craft and Hawaiian studies.
[Id.] The Formal Grievance was resolved through a memorandum
dated November 19, 2010, stating that inmates are given the
opportunity to study the Native Hawaiian religion every week, and
that certain holidays are observed pursuant to RRCC guidelines.
[Id.] Keawe did not appeal the Formal Grievance.
33
daily religious congregation and establishment of an outdoor
altar.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss for Failure to Exhaust, filed on December 31, 2012, is
HEREBY GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED
as to: (1) the claims for regular meetings with a spiritual
advisor made by Plaintiffs Davis, Hughes, Kaahu, and Poaha; (2)
Plaintiff Galdones’s retaliation claims and claims for regular
meetings with a spiritual advisor; and (3) Plaintiff Keawe’s
claims for daily religious congregation and establishment of an
outdoor altar.
The Motion is DENIED as to: (1) the state law
claims; (2) Plaintiff Galdones’s claims for congregation with
other practitioners on a daily basis, participation in certain
Makahiki rituals and ceremonies, access to sacred items, and
establishment of an outdoor altar; (3) Plaintiff Keawe’s claims
for participation in certain Makahiki rituals and ceremonies,
regular meetings with a spiritual advisor, and access to sacred
items; and (3) all of Plaintiff Kane’s religious claims.
IT IS SO ORDERED.
34
DATED AT HONOLULU, HAWAII, April 11, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD KAPELA DAVIS, ET AL. V. NEIL ABERCROMBIE, ETC., ET AL;
CIVIL NO. 11-00144 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO EXHAUST
35
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