Davis et al v. Abercrombie et al
Filing
390
ORDER GRANTING DEFENDANT NEIL ABERCROMBIE'S MOTION FOR JUDGMENT ON THE PLEADINGS re 322 , 383 - Signed by JUDGE LESLIE E. KOBAYASHI on 9/13/13. "All of Plaintiffs' claims against Defendant Abercrombie in the Se cond Amended Complaint and the Supplemental Complaint are HEREBY DISMISSED WITH PREJUDICE. Further, Count XXI (Plaintiffs' claim alleging violations of Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev. Stat. § 1- 1) in the Second Amended Complaint and incorporated into the Supplemental Complaint is HEREBY DISMISSED WITH PREJUDICE as to all Defendants. In addition, Defendant Abercrombie's request for sanctions is HEREBY DENIED WITHOUT PREJUDICE. This Co urt directs the Clerk's Office to terminate Defendant Abercrombie as a party." (emt, )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, KALAI POAHA,
TYRONE KAWAELANILUA`OLE
NA`OKI GALDONES,
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
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.
)
_____________________________ )
CIVIL NO. 11-00144 LEK-BMK
ORDER GRANTING DEFENDANT NEIL ABERCROMBIE’S
MOTION FOR JUDGMENT ON THE PLEADINGS
On June 7, 2013, Defendant Neil Abercrombie, in his
official capacity as the Governor of the State of Hawai`i
(“Defendant Abercrombie”),1 filed his Motion for Judgment on the
Pleadings (“Motion”).
[Dkt. no. 322.]
Plaintiffs Richard Kapela
Davis, Tyrone Galdones, Michael Hughes, Damien Kaahu, Robert A.
Holbron, James Kane, III, Ellington Keawe, and Kalani Poaha
1
This Court will refer to Defendant Abercrombie, together
with Defendant Ted Sakai, in his official capacity as Director of
the Hawai`i Department of Public Safety (“Defendant Sakai” and
“DPS”), and Defendant Corrections Corporation of America (“CCA”)
collectively as “Defendants.”
(collectively “Plaintiffs”) filed their Memorandum in Opposition
on June 24, 2013, and Defendant Abercrombie filed his Reply on
July 1, 2013.
[Dkt. nos. 338, 341.]
Pursuant to leave of Court,
Plaintiffs filed a supplemental opposition to the Motion
(“Supplemental Opposition”) on July 15, 2013, and Defendant
Abercrombie filed a response to the Supplemental Opposition
(“Supplemental Response”) on July 26, 2013.
360.]
[Dkt. nos. 350,
This matter came on for hearing on August 5, 2013.
Appearing on behalf of Defendant Abercrombie were David Lewis,
Esq., and April Luria, Esq., and appearing on behalf of
Plaintiffs were Sharla Manley, Esq., and Alan Murakami, Esq.
After careful consideration of the Motion, supporting and
opposing memoranda, and the arguments of counsel, Defendant
Abercrombie’s Motion is HEREBY GRANTED for the reasons set forth
below.
BACKGROUND
Plaintiffs Davis, Hughes, Kaahu, Holbron, Kane, Keawe,
and Poaha filed the Second Amended Complaint for Damages and for
Classwide Declaratory and Injunctive Relief (“Second Amended
Complaint”) on August 22, 2012.
[Dkt. no. 145.]
Plaintiff
Galdones also filed his Supplemental Complaint for Damages and
for Classwide Declaratory and Injunctive Relief (“Supplemental
Complaint”) on August 22, 2012.
[Dkt. no. 146.]
2
Plaintiffs are all Hawai`i residents who were convicted
and sentenced for violating Hawai`i law, and they are detained at
either Saguaro Correctional Center (“Saguaro”) or Red Rock
Correctional Center (“Red Rock”).
Each Plaintiff is of native
Hawaiian ancestry and is a practitioner of the native Hawaiian
religion.
Saguaro and Red Rock are private prisons in Arizona,
operated by CCA.
The State of Hawai`i houses inmates at CCA’s
facilities pursuant to various contracts.
[Second Amended
Complaint at ¶¶ 7-10, 12(c), 17-18; Supplemental Complaint at
¶¶ 7-10, 12(c), 17-18.]
In the instant case, Plaintiffs allege
that, during each Plaintiff’s incarceration at either Saguaro or
Red Rock, Defendants have prohibited and/or are prohibiting him
from exercising his constitutional and statutory right to
practice his faith.
I.
Second Amended Complaint
The Second Amended Complaint alleges the following
claims:
•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 daily worship practices
(“Count I”), the observance of Makahiki2 (“Count II”),
access to sacred items (“Count III”), access to sacred space
2
“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.”
[Second 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.]
3
(“Count IV”), and access to a spiritual advisor (“Count V”);
•Violation of Plaintiffs’ equal protection rights pursuant to the
Fourteenth Amendment of the United States Constitution as to
daily worship practices (“Count VI”), the observance of
Makahiki (“Count VII”), access to sacred items (“Count
VIII”), access to sacred space (“Count IX”), and access to a
spiritual advisor (“Count X”);
•Violation of Plaintiffs’ right to free exercise of their
religion pursuant to Article I, § 4 of the Hawai`i State
Constitution as to daily worship practices (“Count XI”), the
observance of Makahiki (“Count XII”), access to sacred items
(“Count XIII”), access to sacred space (“Count XIV”), and
access to a spiritual advisor (“Count XV”);
•Violation of Plaintiffs’ equal protection rights pursuant to
Article I, § 5 of the Hawai`i State Constitution as to daily
worship practices (“Count XVI”), the observance of Makahiki
(“Count XVII”), access to sacred items (“Count XVIII”),
access to sacred space (“Count XIX”), and access to a
spiritual advisor (“Count XX”);
•Violation of Plaintiffs’ rights relating to native Hawaiian
customary and traditional practices pursuant to Article XII,
§ 7 of the Hawai`i State Constitution and Haw. Rev. Stat.
§ 1-1 as to the observance of Makahiki (“Count XXI”);
•Violations of the Religious Land Use and Institutionalized
Persons
Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), as to daily
worship practices (“Count XXII”), the observance of Makahiki
(“Count XXIII”), access to sacred items (“Count XXIV”),
access to sacred space (“Count XXV”), and access to a
spiritual advisor (“Count XXVI”).
The Second Amended Complaint prays for the following
relief:
•certification of the case as a class action, appointment of
Plaintiffs as the class representatives, and appointment of
class counsel;
•declaratory relief that Defendants violated Plaintiffs’ and the
class members’ rights under: the Free Exercise Clauses of
the First Amendment and the Hawai`i State Constitution; the
Equal Protection Clauses of the Fourteenth Amendment and the
Hawai`i State Constitution; Article XII, § 7 of the Hawai`i
State Constitution and Haw. Rev. Stat. § 1-1; and RLUIPA;
•injunctive relief allowing Plaintiffs and the class members to
gather once daily in observance of their native Hawaiian
religion, participate in certain specific ceremonies
critical to the annual Makahiki Season, use and maintain
4
customary and traditional objects and items, construct and
access an outdoor sacred space, and meet a spiritual leader
on a daily basis;
•injunctive relief requiring Defendants to develop a
comprehensive plan and to promulgate policy guidelines
allowing inmates to practice their native Hawaiian religion
“on a regular and equal basis with all other religions
represented at correctional facilities[;]” [id. at pgs. 12829, ¶ 13;]
•the appointment of a special master to monitor Defendants’
compliance with the relief ordered in this case;
•compensatory damages;
•reasonable attorneys’ fees and costs, as authorized by statute;
and
•any other appropriate relief.
II.
Supplemental Complaint
The Supplemental Complaint states that Plaintiff
Galdones “hereby joins in and asserts COUNTS I through XXVI of
the Amended Complaint on his own behalf and on behalf of all
those similarly situated.”
[Supplemental Complaint at ¶ 124.]
The Supplemental Complaint also asserted an additional
retaliation claim.
[Id. at ¶¶ 125-37.]
The Supplemental
Complaint contains the same prayers for relief as the Second
Amended Complaint, but it also seeks declaratory relief,
injunctive relief, damages, and other relief related to the
retaliation claim.
[Id. at pgs. 33-34, ¶¶ 17-23.]
This Court dismissed Galdones’s retaliation claim for
failure to exhaust his administrative remedies.
[Order Granting
in Part and Denying in Part Defendants’ Motion to Dismiss for
Failure to Exhaust, filed 4/11/13 (dkt. no. 286), at 28-29.]
Thus, Plaintiff Galdones’s only remaining claims are the same
5
claims that are asserted in the Second Amended Complaint.
Plaintiff Galdones, however, is not one of the named Plaintiffs
in the Second Amended Complaint, although he is within the
proposed Class and Segregation Subclass described in the Second
Amended Complaint.
I.
[Second Amended Complaint at ¶¶ 23-24.]
Motion
In the instant Motion, Defendant Abercrombie seeks
judgment on the pleadings as to all counts against him in the
Second Amended Complaint and the Supplemental Complaint.
He also
argues that this Court should dismiss Plaintiffs’ Article XII,
§ 7 claim as to all Defendants.
Defendant Abercrombie first points out that Plaintiffs
have only sued him in his official capacity, and neither a state
nor a state official sued in his official capacity is a “person”
for purposes of a 42 U.S.C. § 1983 claim for monetary damages.
[Mem. in Supp. of Motion at 4-5.]
Defendant Abercrombie
therefore argues that this Court must grant judgment on the
pleadings as to all of Plaintiffs’ § 1983 claims for monetary
damages against him.
Defendant Abercrombie acknowledges that state
officials, in their official capacity, are persons for purposes
of a § 1983 claim for prospective injunctive relief.
Further, a
claim against a state official in his official capacity is
essentially a claim against the state itself.
6
Respondeat
superior and vicarious liability do not apply to § 1983 claims.
In order to establish § 1983 liability against a state official,
a plaintiff must prove that the official is an agent of the state
with regard to a state policy or custom that was the moving force
behind the violation of the plaintiff’s rights.
[Id. at 5-6.]
Defendant Abercrombie argues that Plaintiffs failed to
sufficiently plead their claims against him because Plaintiffs
failed to present any factual allegations that, if proven, would
support the legal conclusions in Plaintiffs’ pleadings.
6.]
[Id. at
In particular, the Second Amended Complaint’s allegations
relate to CCA’s policies, and Plaintiffs have not alleged that
the Governor’s Office was involved in developing or maintaining
those policies.
207, 210-19.]
[Id. at 7; Second Amended Complaint at ¶¶ 198-
Defendant Abercrombie asserts that the only
alleged misconduct by the State is that it allegedly “engag[ed]
in a ‘widespread practice of illegally delegating all of their
Constitutional and statutory responsibilities owed to Plaintiffs
that permits its contractor, Defendant CCA, to authorize
[decisions or policies harmful to prisoners].’”
[Mem. in Supp.
of Motion at 7 (some alterations in Mem. in Supp.) (quoting
Second Amended Complaint at ¶ 198); id. at 8 (citing paragraphs
in the Second Amended Complaint pleading similar allegations).]
Defendant Abercrombie argues that the allegedly illegal
delegation is insufficient to establish a nexus between the
7
Governor’s Office and CCA’s actions.
Even assuming, arguendo,
that DPS has oversight and monitoring responsibilities over CCA
under Haw. Rev. Stat. § 353-16.2, Defendant Abercrombie asserts
that his office is not involved in the oversight.
of Motion at 8-9.]
[Mem. in Supp.
Defendant Abercrombie emphasizes that this
district court has ruled that general oversight by the Governor’s
Office over state laws was not enough to render the Governor a
proper defendant in an action seeking an injunction against the
enforcement of a gun regulation.
[Id. at 9-10 (discussing Young
v. Hawai`i, 548 F. Supp. 2d 1151 (D. Haw. 2008)).]
Defendant
Abercrombie emphasizes that the Governor’s Office has no role in
the custody of Hawai`i prisoners.
Pursuant to Haw. Rev. Stat.
§ 353C-2, the director of DPS has sole authority over the custody
of Hawai`i prisoners.
Plaintiffs themselves acknowledge that it
was DPS that negotiated the incarceration agreement with CCA.
According to Defendant Abercrombie, if this Court were to grant
the injunctive relief that Plaintiffs seek, Defendant Abercrombie
would not be the proper party to implement the relief.
[Id. at
10-11.]
In a related argument, Defendant Abercrombie also
asserts that Plaintiffs lack Article III standing to bring
federal constitutional claims against him.
Defendant Abercrombie
contends that the recent decision in Hartmann v. California
Department of Corrections & Rehabilitation, 707 F.3d 1114, 1117
8
(9th Cir. 2013), is fatal to Plaintiffs’ attempt to seek relief
from him in this action.
[Id. at 12-14.]
He also argues that
“[c]ases from across the country—particularly those applying
Ninth Circuit law—recognize that RLUIPA cannot be invoked against
a state governor who had no involvement in the challenged
conduct.”
[Id. at 15-16 (citing cases).]
Thus, Defendant
Abercrombie argues that, even assuming arguendo that RLUIPA
allows suits for monetary damages against a state government,
Plaintiffs’ RLUIPA claims for monetary, declaratory, and
injunctive relief against him all fail.
[Id. at 16.]
Similarly, Defendant Abercrombie also argues that he is
not a proper defendant in Plaintiffs’ state constitutional and
state statutory claims.
Hawai`i courts consider federal case law
addressing issues arising under the United States Constitution to
be analogous and persuasive when applying similar provisions of
the state constitution.
Defendant Abercrombie argues that the
principles articulated in Hartmann apply with equal force to the
state constitutional and statutory claims in this case.
[Id. at
17-19.]
Finally, Defendant Abercrombie argues that this Court
should dismiss Plaintiffs’ claim under Article XII, § 7, which
addresses traditional usage/gathering rights.
[Id. at 19-21.]
Defendant Abercrombie argues that, under Hawai`i case law,
Article XII, § 7 rights only apply to undeveloped land.
9
Allowing
the practice of customary and traditional native Hawaiian rights
on fully developed land is inconsistent with “‘our understanding
of the traditional Hawaiian way of life in which cooperation and
non-interference with the wellbeing of other residents were
integral parts of the culture.’”
[Id. at 20 (emphasis and some
citations omitted) (quoting Pub. Access Shoreline Hawai`i v.
Hawai`i Cnty. Planning Comm’n, 79 Hawai`i 425, 450, 903 P.2d
1246, 1271 (1995)).]
Defendant Abercrombie asserts that Saguaro
and Red Rock are “fully developed, private property owned by CCA
and [are] located entirely outside of Hawaii in the State of
Arizona[,]” and therefore Article XII, § 7 rights do not apply.
[Id. at 21 (footnote omitted).]
Defendant Abercrombie argues that he is entitled to
judgment on the pleadings, and he urges this Court to dismiss all
claims against him.
Further, he argues that this Court should
dismiss Plaintiffs’ Article XII, § 7 claim against all parties.
II.
Memorandum in Opposition
Plaintiffs first argue that this Court should not
consider the instant Motion because Defendant Abercrombie failed
to raise his arguments in a timely manner.
Plaintiffs assert
that Defendant Abercrombie could have presented these arguments
in: Defendants’ March 23, 2011 motion to transfer venue;
Defendants’ oppositions to Plaintiffs’ motions to amend the
complaint, filed on September 14, 2011, June 15, 2012, July 5,
10
2012 (supplemental complaint), and July 31, 2012; and Defendants’
December 31, 2012 motion to dismiss for failure to exhaust
administrative remedies.
[Mem. in Opp. at 3-5.]
Plaintiffs
argue that Fed. R. Civ. P. 12(g)(2) precludes this type of
successive attack on a plaintiff’s pleadings.
[Id. at 7-8.]
If
this Court is inclined to consider the Motion, Plaintiffs ask
this Court to give Defendants notice that this Court will deny
any further Fed. R. Civ. P. 12 motions.
[Id. at 10.]
As to Defendant Abercrombie’s argument that he is not a
person for purposes of § 1983 claims for damages, Plaintiffs
argue that Defendant Abercrombie waived his sovereign immunity by
removing this case to federal court.
[Id. at 10-11.]
Plaintiffs also argue that they have sufficiently pled
a nexus between the deprivation of their rights and Defendant
Abercrombie’s actions.
[Id. at 14-17.]
For example, the Second
Amended Complaint alleges that:
•Defendant Abercrombie “is responsible for the supervision and
management of all state instrumentalities and employees
charged with (a) executing the State of Hawaii’s prison
regulations and procedures; and (b) monitoring out-of-state
public and private correctional facilities where Hawaii
state inmates are serving their sentences[;]” [Second
Amended Complaint at ¶ 13;]
•Defendant Abercrombie “must guarantee to those individuals the
rights, privileges, or immunities secured by the Hawaii
State Constitution, the United States Constitution and
federal and state laws in a manner that is not inconsistent
with their status as institutionalized persons, or with the
legitimate penological objectives of the corrections
system[;]” [id. at ¶ 16;]
11
•Defendant Abercrombie is responsible for the involuntary
transfer of inmates to CCA facilities and, but for this
“involuntary seizure” from Hawai`i, Plaintiffs would have
continued to practice their native Hawaiian faith in
Hawai`i; [id. at ¶¶ 18, 406;]
•Defendant Abercrombie is “enforcing an official policy, or in
the alternative, engaging in a persistent widespread
practice of illegally delegating all of [his] Constitutional
and statutory responsibilities owed to Plaintiffs which
permits [his] contractor, Defendant CCA to” violate
Plaintiffs’ rights; see, e.g., id. at ¶ 198;
•CCA’s execution of discriminatory policies is a result of
Defendant Abercrombie’s actions or omissions; see, e.g., id.
at ¶ 201; and
•Article XII, § 7 requires the State to protect “all rights,
customarily and traditionally exercised for subsistence,
cultural and religious purposes and possessed by ahupua`a
tenants who are decedents of native Hawaiians who inhabited
the Hawaiian Islands prior to 1778,[3] subject to the right
of the State to regulate such rights” [id. at ¶ 402 (quoting
Haw. Const. art. XII, § 7)].
3
The Intermediate Court of Appeals has stated:
As discussed in Kalipi [v. Hawaiian Trust Co.] and
earlier cases, in ancient Hawai`i, the ahupua`a
was a division of land that usually ran from the
sea to the mountains, allowing a chief and his
people access to the resources of both, as well as
all lands in between. The ahupua`a tenants were
allowed to cultivate land in exchange for services
to their chief or the King, and all benefitted
from the shared access to undeveloped lands so
that the items naturally found there could be used
for subsistence and cultural purposes.
State v. Pratt (“Pratt I”), 124 Hawai`i 329, 343, 243 P.3d 289,
303 (Ct. App. 2010) (some citations omitted) (citing Kalipi v.
Hawaiian Trust Co., 66 Haw. 1, 6–7, 656 P.2d 745, 748–49 (1982)),
aff’d, State v. Pratt (“Pratt II”), 127 Hawai`i 206, 212, 277
P.3d 300, 306 (2012).
12
Plaintiffs therefore argue that they have suffered irreparable
injury as a result of these violations by Defendant Abercrombie.
[Mem. in Opp. at 19 (citing various paragraphs of the Second
Amended Complaint)].
Plaintiffs contend that these allegations are not
conclusory and that they sufficiently describe Defendant
Abercrombie’s role in the policies at issue in this case.
Further, Defendant Abercrombie is an indispensable party because
Plaintiffs ask this Court for an order requiring Defendant
Abercrombie’s office to abandon its unconstitutional and illegal
policies regarding prisoners.
Plaintiffs therefore assert that
their allegations against Defendant Abercrombie would survive a
Fed. R. Civ. P. 12(b)(6) motion.
[Id. at 19-20.]
In addition, although the Motion claims that Defendant
Abercrombie is not involved in the policies at issue in this
case, Plaintiffs argue that Defendant Abercrombie’s claim is
contrary to “recent testimony from . . . [Defendant] SAKAI, his
Mainland Branch Administrator Kimoto, and the Wardens of
[Saguaro] and [Red Rock], all of whom assert that it was the
State of Hawaii’s continued policy and custom from 2008 to
present dictating the scope of accommodations for Native Hawaiian
practitioners at Hawaii’s mainland prisons.”
[Id. at 21.]
Plaintiffs acknowledge that a Fed. R. Civ. P. 12(c) motion only
tests the pleadings, but they ask this Court to take judicial
13
notice of extrinsic evidence which Plaintiffs did not have when
they filed the Second Amended Complaint.
[Id.]
Plaintiffs ask this Court to take judicial notice of
the following:
1)
redacted excerpts of the transcript of the March 11, 2013
deposition of Shari Kimoto, who Plaintiffs state is
Defendant Abercrombie’s Mainland Branch Administrator; [Mem.
in Opp., Decl. of Andrew B. Sprenger (“Sprenger Decl.”),
Exh. 1;]
2)
a redacted memorandum dated July 17, 2008 to the warden of
Saguaro from Kimoto, transmitting the “PSD Basic Makahiki
Guidelines” - “the approved Department’s basic guidelines
for the Makahiki season to be implemented in both in-state
and out-of-state facilities[;]” [id., Exh. 2 at 1;]
3)
a redacted e-mail dated August 4, 2009 from Kimoto
wardens of Saguaro and Red Rock advising them that
native Hawaiian religious activities not addressed
PSD Basic Makahiki Guidelines were not authorized;
Exh. 3; Mem. in Opp. at 23;]
4)
redacted excerpts of the transcript of the May 7, 2013
deposition of Defendant Sakai (“Sakai Transcript”);
[Sprenger Decl., Exh. 4;]
5)
redacted excerpts of the transcript of the April 5, 2013
deposition of Todd Thomas, warden of Saguaro (“Thomas
Transcript”); [id., Exh. 5;] and
6)
redacted excerpts of the transcript of the April 3, 2013
deposition of Warden Stolc of Red Rock (“Stolc Transcript”)
[id., Exh. 6].
to the
any
in the
[id.,
In particular, Plaintiffs ask this Court to take judicial notice
of the following facts: the PSD Makahiki Guidelines are still in
effect at Red Rock and Saguaro; Warden Thomas must obtain
Kimoto’s approval before he makes any policy decisions regarding
the native Hawaiian religion; and Warden Stolc adopted the
14
positions of the PSD Makahiki Guidelines when deciding upon
Plaintiffs’ requests for religious accommodations.
[Mem. in Opp.
at 23-24 (citing Sakai Trans. at 64-66; Thomas Trans. at 241-42;
Stolc Trans. at 43, 72-77).]
Plaintiffs therefore argue that
there is a genuine issue of material fact regarding whether
Defendant Abercrombie’s office participated in the decisions at
issue in this case, as well as other genuine issues of material
fact that preclude judgment on the pleadings.
[Id. at 24.]
Plaintiffs also argue that there is a genuine issue of
material fact regarding whether the situs of the Article XII, § 7
claim is CCA’s facilities in Arizona or Defendants’ offices in
Hawai`i.
[Id.]
According to Plaintiffs, the alleged
constitutional and statutory violations occurred in Hawai`i:
the State’s development and enforcement of its
out-of-state transfer policy; the State’s failure
to impose appropriate conditions to protect Native
Hawaiian traditional and customary cultural and
religious practices in its contract with Defendant
CCA; the State’s failure to monitor CCA’s
performance of that contract with regard to Native
Hawaiian traditional and customary cultural and
religious practices; and the State’s so-called
“Makahiki guidelines” which have been used to ban
any traditional and customary practices not
identified in that document.
[Id. at 24-25.]
In addition, the State negotiated its contract
with CCA in Hawai`i, and formulated and issued the Makahiki
guidelines in Hawai`i.
[Id. at 25.]
Further, Plaintiffs contend that there is a genuine
issue of material fact as to whether Red Rock and Saguaro are
15
located on fully developed, private lands or public lands for
purposes of the Article XII, § 7 analysis.
Plaintiffs assert
that those facilities are instrumentalities of the State because
they are publicly funded and they perform tasks and functions
that are traditional and fundamental functions of the State.
Plaintiffs also emphasize that the facilities take direction from
State officials, and the State government refers to Saguaro and
Red Rock as its “Mainland Facilities.”
[Id. at 25-26 (citing
Sprenger Decl., Exh. 9 (audit report) at 2, Exh. 10 (Honolulu
Advertiser article)).]
As to Defendant Abercrombie’s argument that Plaintiffs
lack Article III standing to pursue claims against him,
Plaintiffs concede that a governor’s general supervisory powers
over a state’s department of corrections do not create a
sufficient nexus to render the governor a proper defendant in a
civil rights action challenging a corrections policy.
Plaintiffs, however, argue that the cases following that general
rule are distinguishable because Defendant Abercrombie: 1) “has
purposefully availed himself and his office in acknowledging that
his Department of Public Safety’s continued policy of
transferring a disproportionate number of Native Hawaiians to
private prisons is wrong, and therefore must be corrected[;]” 2)
carries out the transfer policy without sufficient oversight and
safeguards; and 3) “has an affirmative and non-delegable duty
16
under the Hawaii Constitution to ensure that to preserve and
protect the customary and traditional practices of Native
Hawaiians even if they are inmates of the State.”
28.]
[Id. at 27-
Plaintiffs also argue that “a governor is a necessary and
indispensable party in matters which concern widespread prison
reform and affects the entire state inmate population.”
[Id. at
28.]
Plaintiffs point to the fact that, when Defendant
Abercrombie took office, he recognized the special relationship
between the State and the native Hawaiian people, and he
acknowledged the negative effects of the practice of transferring
inmates out-of-state.
He has also stated publicly that the out-
of-state transfer policy was contrary to Hawaii’s basic values.
[Id. at 29-30 (citing Sprenger Decl., Exh. 7 (excerpts of
Defendant Abercrombie’s New Day in Hawai`i Plan), Exh. 8 (Star
Advertiser article)).]
In addition, the State Auditor’s December
2010 report to the Governor and the Legislature, titled
“Management Audit of the Department of Public Safety’s
Contracting for Prison Beds and Services” (“Audit”), states,
inter alia, that: there were no written policies and procedures
to regulate the care, custody, and confinement of Hawai`i inmates
in out-of-state facilities; Kimoto failed to verify CCA’s
statements about its compliance with contract requirements; and
there was no formal process to evaluate CCA’s performance.
17
[Id.
at 30-31 (citing Sprenger Decl., Exh. 9).]
Plaintiffs argue that
Defendant Abercrombie’s failure to act upon the Audit, Defendant
Abercrombie’s tender of his defense in this case to CCA’s
counsel, and Defendant Abercrombie’s allowing DPS to renew the
State’s contract with CCA for another three years without any
additional requirements constitute sufficient involvement in the
contested policies to render Defendant Abercrombie a proper
defendant in this action.
[Id. at 31-32.]
In the alternative, Plaintiffs argue that Article XII,
§ 7 imposes an affirmative duty on Defendant Abercrombie, and on
the director of DPS, to protect and preserve the customary and
traditional rights of the native Hawaiians.
[Id. at 33.]
Plaintiffs emphasize that the Governor is responsible “‘for the
faithful execution of the laws.’”
V, §§ 1, 5).]
[Id. (quoting Haw. Const. art.
Plaintiffs emphasize that the customary and
traditional rights referenced in Article XII, § 7 include
religious and cultural practices, and they urge the Court to
reject Defendant Abercrombie’s argument that the provision only
protects gathering rights.
[Id. at 34.]
Further, Plaintiffs contend that this constitutional
duty is non-delegable, and the duty applies even though Saguaro
and Red Rock are in Arizona.
Plaintiffs reiterate that Defendant
Abercrombie’s actions, as well as the actions of other State
officials, occurred in Hawai`i and deprived them of their rights.
18
Plaintiffs contend that, at the very least, there is a genuine
issue of fact as to Defendant Abercrombie’s obligations under
Article XII, § 7, and therefore judgment on the pleadings is not
appropriate in this case.
[Id. at 35-36.]
Plaintiffs urge the Court to deny the Motion.
However,
if the Court does find that any of their claims against Defendant
Abercrombie are defective, Plaintiffs argue that the Court should
grant leave to amend because judgment on the pleadings is
disfavored, and the amendment of their claims against Defendant
Abercrombie would not be futile.
[Id. at 37-39.]
III. Reply
In his Reply, Defendant Abercrombie first argues that
this Court should limit its consideration to the allegations of
the pleadings, and this Court should not consider any of the
exhibits submitted.
If this Court is inclined to consider
exhibits, Defendant Abercrombie objects that Plaintiffs’ Exhibits
7, 8, 9, and 10 lack foundation, are inadmissible hearsay, and
violate Fed. R. Evid. 403.
Defendant Abercrombie also emphasizes
that Plaintiffs have had ample opportunity to amend their
complaint, and the deadline to amend pleadings was June 15, 2012.
[Reply at 1 n.2, 13.]
Defendant Abercrombie also argues that
this Court should reject Plaintiffs’ argument that the previous
motions should have incorporated his current arguments because
all of those motions were post-pleading motions which did not
19
implicate Fed. R. Civ. P. 12(g) or (h).
Further, Rule 12 clearly
states that a motion for judgment on the pleadings may be brought
at any time.
[Id. at 4-5.]
As to Plaintiffs’ arguments about the waiver of
sovereign immunity, Defendant Abercrombie notes that the Motion
itself did not raise any immunity issues because immunity issues
are irrelevant to the question of whether Defendant Abercrombie,
in his official capacity, is a “person” for purposes of § 1983.
[Id. at 7-8.]
Defendant Abercrombie argues that this Court must
dismiss the § 1983 claims for damages against him, and he
requests an award of fees incurred in responding to this
argument.
[Id. at 11-12.]
Defendant Abercrombie argues that Plaintiffs have only
identified conclusory statements and legal theories about his
alleged role in CCA’s religious programming decisions.
If this
Court accepts Plaintiffs’ position, the governor could be a
defendant in any civil rights action based upon the acts or
policies of his subordinates or state contractors.
Defendant
Abercrombie emphasizes that the Second Amended Complaint does not
set forth any specific allegations of what he personally did with
respect to the programming and policy decisions at issue in this
case.
[Id. at 13-14.]
Defendant Abercrombie also asserts that
Plaintiffs have not identified any state law or regulation
allocating him “any specific role in combating religious
20
discrimination involving inmates.”
[Id. at 15.]
Defendant
Abercrombie argues that this Court must dismiss the § 1983
claims, RLUIPA claims, and “corresponding state law claims”
against him because Plaintiffs’ allegations regarding his
involvement in the decisions at issue in this case are merely
unsupported legal conclusions about his general oversight
authority.
[Id. at 15-16.]
If the Court is inclined to consider Plaintiffs’
exhibits, Defendant Abercrombie argues that the exhibits do not
show that his office was involved in the decisions giving rise to
Plaintiffs’ claims.
[Id. at 16-20.]
Defendant Abercrombie also contends that Plaintiffs’
“purposeful availment” argument is misplaced because that is part
of the due process minimum contacts analysis.
Defendant
Abercrombie further argues that he has not availed himself of
anything that would render him culpable for the decisions at
issue in this case.
At most, Plaintiffs have established that
Defendant Abercrombie has expressed frustration with the mainland
transfer of inmates and that the State Auditor has criticized the
management of the contract facilities.
Neither of these points
addresses the alleged infringement of Plaintiffs’ free exercise
of their religion.
[Id. at 20.]
Defendant Abercrombie argues that, to allege plausible
constitutional claims against him, Plaintiffs must allege facts
21
that link him “to the adoption, regulation, and revision” of the
allegedly discriminatory policies.
that Plaintiffs have not done so.
quotation marks omitted).]
Defendant Abercrombie argues
[Id. at 23 (citation and
Defendant Abercrombie also points out
that Plaintiffs did not respond to his argument that they failed
to establish a nexus to or his participation in the conduct
giving rise to their RLUIPA claims.
[Id. at 24 n.12.]
In addition, Defendant Abercrombie argues that
Plaintiffs lack Article III standing to pursue claims against him
because his presence in this action is not necessary to their
pursuit of injunctive relief.
This jurisdictional defect
provides another basis for the dismissal of all claims against
him.
[Id. at 24-25.]
Finally, Defendant Abercrombie asserts that Plaintiffs’
claim that there are issues of fact as to whether Saguaro and Red
Rock are public lands is frivolous.
The challenged practices
occur in Arizona, where there is no history of the exercise of
customary and traditional native Hawaiian rights on those lands,
which are privately owned and fully developed.
Defendant
Abercrombie contends that Plaintiffs are bound by their previous
admissions in their Preliminary Statement of CCA’s private
ownership of the lands.
[Id. at 25-27.]
Defendant Abercrombie
argues that accepting Plaintiffs’ argument would illogically
require Arizona courts and government offices “to recognize a
22
unique Hawaii Constitutional right and somehow harmonize native
Hawaiian rights with Arizona statutes governing adverse
possession, criminal trespass, prison escape, criminal damage and
other laws.”
[Id. at 28 n.15.]
Defendant Abercrombie therefore
urges this Court to dismiss Plaintiffs’ Article XII, § 7 claim,
in its entirety, with prejudice.
IV.
[Id. at 28.]
Supplemental Filings
In their Supplemental Opposition, Plaintiffs deny they
admitted that Saguaro and Red Rock are privately owned, and they
argue that the Second Amended Complaint contains numerous
allegations that the “actions and omissions of the Governor, and
other state officials . . . caused . . . the formulation of the
policy and practice of transferring prisoners out-of-state, and
[the] negotiati[on of] a contract for their care and custody to a
private contractor without imposing adequate safeguards to
protect Native Hawaiian religious and cultural resources.”
[Suppl. Opp. at 3.]
Plaintiffs also argue that, even assuming
that they did admit Saguaro and Red Rock are private, fully
developed properties, this Court cannot consider Defendant
Abercrombie’s argument that the admission requires dismissal of
the Article XII, § 7 claim because Defendant Abercrombie did not
raise that argument in the Motion.
Further, Plaintiff argues
that this Court must reject Defendant Abercrombie’s argument
because of admissions in Defendants’ Answer to the Second Amended
23
Complaint that CCA is a governmental or a state actor as to the
facts of this case.
In his Supplemental Response, Defendant Abercrombie
argues that it is ultimately irrelevant whether CCA is a state
actor based upon its contract to house Hawai`i inmates at Saguaro
and Red Rock because Article XII, § 7 rights are exercised on
native Hawaiians’ ancestral lands and are not applicable to
private, fully developed land used for prisons in Arizona.
STANDARD
Federal Rule of Civil Procedure 12(c) permits parties
to move for judgment on the pleadings.
“After the pleadings are
closed--but early enough not to delay trial--a party may move for
judgment on the pleadings.”
Fed. R. Civ. P. 12(c).
The standard
governing a Rule 12(c) motion for judgment on the pleadings is
“functionally identical” to that governing a Rule 12(b)(6)
motion.
United States ex rel. Cafasso v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011).
A court
evaluating a Rule 12(c) motion must construe the factual
allegations in the complaint in the light most favorable to the
nonmoving party.
2009).
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir.
“Judgment on the pleadings under Rule 12(c) is proper
when the moving party establishes on the face of the pleadings
that there is no material issue of fact and that the moving party
is entitled to judgment as a matter of law.”
24
Jensen Family
Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist.,
644 F.3d 934, 937 n.1 (9th Cir. 2011).
Courts have applied the Ashcroft v. Iqbal, 556 U.S. 662
(2009), standard for Fed. R. Civ. P. 12(b)(6) motions to Rule
12(c) motions.
See, e.g., Peelua v. Impac Funding Corp., Civil
No. 10-00090 JMS/KSC, 2011 WL 1042559, at *2 (D. Hawai`i Mar. 18,
2011) (“Following Iqbal, courts have applied Iqbal to Rule 12(c)
motions.” (citations omitted)); Point Ruston, L.L.C. v. Pac. Nw.
Reg’l Council of the United Bhd. of Carpenters & Joiners of Am.,
658 F. Supp. 2d 1266, 1273 (W.D. Wash. 2009) (“The standard
applied on a Rule 12(c) motion is essentially the same as that
applied on a Rule 12(b)(6) motion[.]” (citation omitted)).
To
survive a motion to dismiss under Iqbal, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Iqbal, 556 U.S.
at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570, 127 S. Ct. 1955 (2007)).
“[T]he tenet that a court must
accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.”
Id.
Accordingly,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
(citing Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
Id.
Rather, “[a]
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
25
that the defendant is liable for the misconduct alleged.”
(citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
Id.
Factual
allegations that only permit the court to infer “the mere
possibility of misconduct” do not constitute a short and plain
statement of the claim showing that the pleader is entitled to
relief as required by Fed. R. Civ. P. 8(a)(2).
Id. at 679.
“Dismissal without leave to amend is improper unless it
is clear that the complaint could not be saved by any amendment.”
Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009)
(citation and quotation marks omitted).
“But courts have
discretion to deny leave to amend a complaint for futility[.]”
Johnson v. American Airlines, Inc., 834 F.2d 721, 724 (9th Cir.
1987) (citation and quotation marks omitted).
DISCUSSION
I.
Preliminary Rulings
At the outset, this Court rejects Plaintiffs’ argument
that the instant Motion is an improper successive motion,
prohibited by Fed. R. Civ. P. 12(g)(2).
A motion for judgment on
the pleadings does not need to be filed before filing a
responsive complaint.
See Fed. R. Civ. P. 12(c).
Further, a
motion for judgment on the pleadings is “[o]ne of the exceptions
to which Rule 12(g)(2) does not apply[.]”
Shein v. Canon U.S.A.,
Inc., No. CV 08-07323 CAS (Ex), 2009 WL 3109721, at *6 n.9 (C.D.
Cal. Sept. 22, 2009) (citing Fed. R. Civ. Proc. 12(h)(2)(B)).
26
This Court also denies Plaintiffs’ request for this Court to
issue a cautionary instruction to Defendants that this Court will
deny any further Fed. R. Civ. P. 12 motions.
Should Defendants
bring any further Rule 12 motions, the Court will rule upon the
motions on a case-by-case basis.
As to the exhibits submitted with Plaintiffs’
Memorandum in Opposition and with Defendant Abercrombie’s Reply,
this Court declines to consider them because this Court finds
that converting the instant Motion into a motion for summary
judgment is not warranted in this case.
See Graham v. Orozco,
No. CV 10–4618–RGK (E), 2012 WL 1813390, at *2 (C.D. Cal. May 17,
2012) (“As a general rule, the Court may not consider material
beyond the pleadings without converting the motion to a motion
for summary judgment.” (citing Fed. R. Civ. P. 12(c); Heliotrope
General, Inc. v. Ford Motor Co., 189 F.3d 971, 979–80 (9th Cir.
1999); Qwest Communications Corp. v. City of Berkeley, 208 F.R.D.
288, 291 (N.D. Cal. 2002))).
In addition, the materials in the
exhibits are not properly subject to judicial notice.
Id.
(stating that, in ruling on a motion for judgment on the
pleadings, a court “may consider matters properly the subject of
judicial notice” (citing United States v. 14.02 Acres of Land
More or Less in Fresno County, 547 F.3d 943, 955 (9th Cir.
2008))).
27
This Court now turns to the merits of Defendant
Abercrombie’s Motion.
II.
Claims Against Defendant Abercrombie
Plaintiffs allege: twenty claims under 42 U.S.C. § 1983
for violation of their civil rights under the United States
Constitution and under the Hawai`i State Constitution; a claim
alleging violations of Article XII, § 7 of the Hawai`i State
Constitution and Haw. Rev. Stat. § 1-1;4 and five claims for
RLUIPA violations.
A.
Section 1983 Claims
It is well settled that a state official sued in his
official capacity is not a “person” for purposes of a § 1983
action seeking monetary damages.
See, e.g., Will v. Mich. Dep’t
of State Police, 491 U.S. 58, 71 (1989).
1.
Sovereign Immunity and the Definition of “Person”
This district court has recognized:
As stated by the United States Supreme Court
in Will v. Michigan Dep’t of State Police,
Congress did not abrogate the States’ Eleventh
Amendment immunity when enacting 42 U.S.C. § 1983:
Section 1983 provides a federal forum to
remedy many deprivations of civil liberties,
but it does not provide a federal forum for
litigants who seek a remedy against a State
for alleged deprivations of civil
4
This Court will address Defendant Abercrombie’s argument
that this Court should dismiss Count XXI, Plaintiffs’ claim
regarding Article XII, § 7 and Haw. Rev. Stat. § 1-1, in its
entirety, supra Discussion section III.
28
liberties . . . .
Will v. Michigan Dep’t of State Police, 491 U.S.
58, at 65–66 (1989).
Agencies of the state are immune from private
damage actions or suits for injunctive relief
brought in federal court. In re Pegasus Gold
Corp., 394 F.3d 1189, 1195 (9th Cir. 2005). A
state agency or an official acting in her official
capacity, except where sued for prospective
injunctive relief, is not a “person” for purposes
of liability under § 1983. Id.
Oyama v. Univ. of Hawai`i, Civ. No. 12–00137 HG–BMK, 2013 WL
1767710, at *6 (D. Hawai`i Apr. 23, 2013) (alteration in Oyama)
(some citations omitted).
Plaintiffs acknowledge that this is the general rule,
but they argue that the general rule does not apply because
Defendants waived their sovereign immunity by removing this
action from state court.
Although Plaintiffs are correct that
removal waives a state defendant’s sovereign immunity, this
district court has recognized that “‘such waiver does not make a
state or its agencies “persons” under § 1983.’”
Honokaia `Ohana
v. Park, Civ. No. 09–00395 ACK–LEK, 2010 WL 4273083, at *10 (D.
Hawai`i Oct. 25, 2010) (quoting Lutz v. Delano Union Sch. Dist.,
No. 1:08 CV 01787 OWW DLB, 2009 WL 2525760, at *7 n.3 (E.D. Cal.
Aug. 7, 2009)) (citing Itagaki v. Frank, Civil No. 09–00110
SOM/LEK, 2010 WL 2640110, at *3–5 (D. Hawai`i June 29, 2010));
see also Itagaki, 2010 WL 2640110, at *4 (“The scope of liability
under § 1983 and the scope of the Eleventh Amendment are
29
‘separate issues,’ even if closely related.” (quoting Will, 491
U.S. at 64)).
Thus, Defendants’ waiver of their sovereign immunity
through the removal of this action from state court does not
preclude Defendant Abercrombie from arguing that he is not a
“person” for purposes of § 1983.
This Court concludes that
Defendant Abercrombie, as a state official sued in his official
capacity, is not a “person” for purposes of § 1983, and therefore
Plaintiffs cannot obtain damages or retrospective injunctive
relief against him.
This Court GRANTS Defendant Abercrombie’s
Motion as to Plaintiffs’ § 1983 claims for damages and
retrospective injunctive relief against Defendant Abercrombie.
Insofar as it would be futile to amend those claims, they are
DISMISSED WITH PREJUDICE.
2.
Prospective Relief
As noted, supra, a state official, sued in his official
capacity for prospective declaratory or injunctive relief is a
“person” for purposes of § 1983 because “official-capacity
actions for prospective relief are not treated as actions against
the State.”
Will, 492 U.S. at 71 n.10.
Defendant Abercrombie
acknowledges that he may be sued under § 1983 for prospective
injunctive relief, but he argues that he is not the proper
defendant in light of the type of injunctive relief that
Plaintiffs seek.
30
The Ninth Circuit has recognized that the proper state
defendant in a § 1983 action seeking prospective injunctive
relief is the one who “would be responsible for ensuring that
injunctive relief was carried out, even if he was not personally
involved in the decision giving rise to [the plaintiff’s]
claims.”
Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012)
(citing Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011)
(the prison warden was the proper defendant for a claim of
injunctive relief, notwithstanding his lack of personal
involvement in the challenged conduct, because he would be
responsible for ensuring that the injunctive relief was carried
out)), petition for cert. filed, 81 U.S.L.W. 3643 (Apr. 25,
2013); see also Hartmann v. Cal. Dep’t of Corr. & Rehab., 707
F.3d 1114, 1127 (9th Cir. 2013) (holding that official who the
defendants admitted was “the ‘most appropriate’ defendant to
execute court-ordered injunctive relief” and the official who
“would have the authority to ensure execution of any order
issued” were “proper official-capacity defendants for Plaintiffs’
Establishment Clause claim”).
Haw. Rev. Stat. § 353C-2 sets forth the powers and
duties of the director of DPS and states, in pertinent part:
[(a)]
The director of public safety shall
administer the public safety programs of the
department of public safety and shall be
responsible for the formulation and implementation
of state goals and objectives for correctional and
law enforcement programs, including ensuring that
31
correctional facilities and correctional services
meet the present and future needs of persons
committed to the correctional facilities. In the
administration of these programs, the director
may:
. . . .
(2) Train, equip, maintain, and supervise
the force of public safety officers,
including law enforcement and correctional
personnel, and other employees of the
department;
. . . .
(4) Perform other duties as may be required
by law;
(5) Adopt, pursuant to chapter 91, rules
that are necessary or desirable for the
administration of public safety programs; and
(6) Enter into contracts in behalf of the
department and take all actions deemed
necessary and appropriate for the proper and
efficient administration of the department.
(Emphasis added.)
In addition, it is the director of DPS who has
the authority to “effect the transfer of a committed felon to any
correctional institution located in another state . . . .”
Rev. Stat. § 353-16.2(a); Haw. Rev. Stat. § 353-1.
Haw.
Thus, if
Plaintiffs prevail in this case, it is Defendant Sakai (as DPS
director) who has the statutory authority to execute the
requested injunctive relief and to remedy any violations
identified in any declaratory relief.
Plaintiffs essentially rely on Defendant Abercrombie’s
general oversight duties over state matters.
32
This is
insufficient to render him subject to suit for the prospective
declaratory and injunctive relief Plaintiffs seek here.
In Young
v. Hawaii, where the plaintiff sought to enjoin the enforcement
of Haw. Rev. Stat. Chapter 134, this district court ruled that it
lacked jurisdiction over the claims against the Governor and the
State Attorney General of Hawai`i because:
Allegations of general oversight of State laws are
insufficient to establish the required nexus
between the State officials, the Governor and the
Attorney General, and the alleged violation of
Plaintiff’s civil rights through the enforcement
of HRS Chapter 134. A state official’s connection
to the enforcement of the statutes “must be fairly
direct, a generalized duty to enforce state law or
general supervisory power over the persons
responsible for enforcing the challenged provision
will not subject an official to suit.” Los
Angeles County Bar Ass’n v. Eu, 979 F.2d 697, 704
(9th Cir. 1992).
548 F. Supp. 2d 1151, 1164 (D. Hawai`i 2008), overruled on other
grounds by Dist. of Columbia v. Heller, 554 U.S. 570 (2008).
Plaintiffs have not alleged any direct involvement by Defendant
Abercrombie in the decisions at issue in this case or direct
responsibility to implement any injunctive relief or to act upon
any declaratory relief awarded in this case.
Based on the foregoing, this Court concludes that
Defendant Abercrombie is not the proper defendant for Plaintiffs’
claims seeking prospective declaratory and injunctive relief.
Further, in light of the fact that Defendant Sakai is the proper
defendant for those claims, and Plaintiffs have already had
33
multiple opportunities to amend their complaint, this Court
concludes that allowing Plaintiffs to amend their claims for
prospective declaratory and injunctive relief against Defendant
Abercrombie would be futile.
This Court therefore GRANTS
Defendant Abercrombie’s Motion as to Plaintiffs’ § 1983 claims
for prospective declaratory and injunctive relief against him.
Those claims are DISMISSED WITH PREJUDICE.5
B.
RLUIPA Claims
Under RLUIPA, “[a] person may assert a violation of
this chapter as a claim . . . in a judicial proceeding and obtain
appropriate relief against a government.”
42 U.S.C. § 2000cc(a).
The general rules of Article III standing apply to RLUIPA claims.
Id.
Defendant Abercrombie argues that he is entitled to judgment
on the pleadings as to Plaintiffs’ RLUIPA claims because
Plaintiffs lack Article III standing to pursue those claims
and/or because the claims are meritless.
The Ninth Circuit’s analysis in Hartmann of the
plaintiffs’ standing to bring a § 1983 claim for First Amendment
- Establishment Clause violations applies to the analysis of
Plaintiffs’ standing to bring the RLUIPA claims in the instant
case.
In Hartmann, the district court dismissed the claims
5
Insofar as this Court has dismissed all of Plaintiffs’
§ 1983 claims, this Court need not address Defendant
Abercrombie’s separate, but related, argument that Plaintiffs
lack Article III standing to pursue their § 1983 claims.
34
against the five California State Personnel Board members, in
their official capacities (“SPB Members”) because the plaintiffs
“did not allege a causal connection between the SPB Members and a
constitutional or statutory violation.”
707 F.3d at 1127.
In
affirming the district court’s ruling, the Ninth Circuit stated:
Article III requires a plaintiff asserting
claims in federal court to have suffered an
“injury in fact” that is fairly traceable to the
conduct of a named defendant and that will be
“likely” “redressed by a favorable decision.”
Lujan v. Defenders of Wildlife, 504 U.S. 555,
560–61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).
. . . .
. . . EEOC v. Peabody Western Coal Co., 400
F.3d 774 (9th Cir. 2005), [is] a narrow exception
to the causation and traceability requirements of
Article III standing. See Lujan, 504 U.S. at
560–61, 112 S. Ct. 2130. In Peabody, this court
considered whether the Navajo Nation was a
necessary party to an EEOC action brought against
Peabody under Title VII, 42 U.S.C. § 2000e–2(a)(1)
(2012), challenging discriminatory hiring
provisions in coal-mining leases executed between
Peabody and the Navajo Nation. Id. at 776. The
Peabody court held that, although the EEOC had no
cause of action against the Navajo Nation, it was
a necessary party under [Federal] Rule [of Civil
Procedure] 19(a) because to hold otherwise would
permit the Navajo Nation to collaterally attack
any injunctive relief ordered by the court. Id.
at 780. This court clarified its holding in
Peabody during a subsequent appeal from the
district court’s grant of summary judgment. EEOC
v. Peabody W. Coal Co., 610 F.3d 1070 (9th Cir.
2010). There, we stated that “[a]n absentee can
be joined under Rule 19 in order to subject it,
under principles of res judicata, to the ‘minor
and ancillary’ effects of a judgment.” Id. at
1079 (citing Gen. Bldg. Contractors Ass’n, Inc. v.
Pennsylvania, 458 U.S. 375, 399, 102 S. Ct. 3141,
73 L. Ed. 2d 835 (1982)).
35
The case at bar is distinguishable. Unlike
in Peabody, there is no concern that the SPB
Members will collaterally attack court-ordered
relief. Further, Plaintiffs argue myopically that
if the court orders the [California Department of
Corrections and Rehabilitation (“CDCR”)] to create
a paid full-time Wiccan chaplain position, the SPB
Members would first be required to approve the
proposed civil service position. This argument
elides the court’s ability to impose alternative
remedies, such as requiring Cate or Lattimore[6]
to procure a personal services contract with a
Wiccan chaplain. Adoption of Plaintiffs’ argument
would also establish the broad precedent that any
entity or individual participating in a
court-ordered remedy constitutes a necessary
party. This court is satisfied that Cate and
Lattimore could and would sufficiently execute any
court-ordered relief.
Because Plaintiffs lack Article III standing
with respect to the SPB Members, we affirm their
dismissal from this action.
Id. at 1128 (some alterations in Hartmann).
Similarly, in the instant case, Plaintiffs have not
alleged a causal connection between Defendant Abercrombie’s
actions or omissions and the alleged RLUIPA violations.
Further,
Plaintiffs have not alleged any facts which would suggest that
Defendant Abercrombie might collaterally attack any relief
ordered in this case, and Plaintiffs have also named Defendant
Sakai, the state official who would have the authority to execute
any court-ordered relief in this case.
This Court therefore
concludes that Plaintiffs lack the Article III standing necessary
6
Matthew Cate was the CDCR Secretary, and Mary Lattimore
was the warden of the facility where one of the plaintiffs was
incarcerated. Hartmann, 707 F.3d at 1119.
36
to bring their RLUIPA claims against Defendant Abercrombie.
Under the circumstances of this case, including the multiple
opportunities to amend their complaint, allowing Plaintiffs to
amend their RLUIPA claims against Defendant Abercrombie would be
futile.
This Court therefore GRANTS Defendant Abercrombie’s
Motion as to Plaintiffs’ RLUIPA claims against him.
Those claims
are DISMISSED WITH PREJUDICE.
III. Customary and Traditional Native Hawaiian Practices
Count XXI of the Second Amended Complaint alleges that
Defendants’ restrictions of Plaintiffs’ observance of the
Makahiki season constitute violations of Article XII, § 7 of the
Hawai`i Constitution and Haw. Rev. Stat. § 1-1.
Article XII, § 7 states: “The State reaffirms and shall
protect all rights, customarily and traditionally exercised for
subsistence, cultural and religious purposes and possessed by
ahupua`a tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the
right of the State to regulate such rights.”
Haw. Rev. Stat. § 1-1 states:
The common law of England, as ascertained by
English and American decisions, is declared to be
the common law of the State of Hawaii in all
cases, except as otherwise expressly provided by
the Constitution or laws of the United States, or
by the laws of the State, or fixed by Hawaiian
judicial precedent, or established by Hawaiian
usage; provided that no person shall be subject to
criminal proceedings except as provided by the
written laws of the United States or of the State.
37
The Hawai`i Supreme Court has recognized that
“[c]ustomary and traditional rights in these islands flow from
native Hawaiians’ pre-existing sovereignty. . . . and were not
abolished by their inclusion within the territorial bounds of the
United States.”
Pub. Access Shoreline Hawai`i v. Hawai`i Cnty.
Planning Comm’n (“PASH”), 79 Hawai`i 425, 449, 903 P.2d 1246,
1270 (1995) (citations omitted).
The Hawai`i Supreme Court has also stated that Article
XII, § 7
places an affirmative duty on the State and its
agencies to preserve and protect traditional and
customary native Hawaiian rights, and confers upon
the State and its agencies “the power to protect
these rights and to prevent any interference with
the exercise of these rights.” Stand. Comm. Rep.
No. 57, in 1 Proceedings of the Constitutional
Convention of 1978, at 639 (1980). See also PASH,
79 Hawai`i at 437, 903 P.2d at 1258; HRS §§ 1–1
and 7–1 (providing two additional sources from
which gathering rights are derived).7 Article
7
Although Plaintiffs do not allege a violation of any
rights pursuant to Haw. Rev. Stat. § 7-1, the terms of § 7-1 are
important to the understanding of Hawai`i case law applying
Article XII, § 7 and Haw. Rev. Stat. § 1-1. Section 7-1 states:
Where the landlords have obtained, or may
hereafter obtain, allodial titles to their lands,
the people on each of their lands shall not be
deprived of the right to take firewood,
house-timber, aho cord, thatch, or ki leaf, from
the land on which they live, for their own private
use, but they shall not have a right to take such
articles to sell for profit. The people shall
also have a right to drinking water, and running
water, and the right of way. The springs of
water, running water, and roads shall be free to
(continued...)
38
XII, section 7’s mandate grew out of a desire to
“preserve the small remaining vestiges of a
quickly disappearing culture [by providing] a
legal means by constitutional amendment to
recognize and reaffirm native Hawaiian rights.”
Stand. Comm. Rep. No. 57, in 1 Proceedings of the
Constitutional Convention of 1978, at 640. The
Committee on Hawaiian Affairs, in adding what is
now article XII, section 7, also recognized that
“[s]ustenance, religious and cultural practices of
native Hawaiians are an integral part of their
culture, tradition and heritage, with such
practices forming the basis of Hawaiian identity
and value systems.” Comm. Whole Rep. No. 12, in 1
Proceedings of the Constitutional Convention of
1978, at 1016.
In the judicial decisions following its
enactment, this court reemphasized that “the
reasonable exercise of ancient Hawaiian usage is
entitled to protection under article XII, section
7.” See PASH, 79 Hawai`i at 442, 903 P.2d at
1263. See also Kalipi v. Hawaiian Trust Co.,
Ltd., 66 Haw. 1, 656 P.2d 745 (1982) (recognizing
Hawai`i’s constitutional mandate to protect
traditional and customary native Hawaiian rights);
Pele Defense Fund [v. Paty], 73 Haw. [578,] 620,
837 P.2d [1247,] 1272 [(1992)] (reaffirming the
“rudiments of native Hawaiian rights protected by
article XII, § 7” of the Hawai`i Constitution).
Ka Pa`akai O Ka`Aina v. Land Use Comm’n, State of Hawai`i, 94
Hawai`i 31, 45-46, 7 P.3d 1068, 1082-83 (2000) (some alterations
in Ka Pa`akai) (footnotes omitted).
Whether a person’s exercise of native Hawaiian rights
is constitutionally protected is an issue of law.
7
See Pratt II,
(...continued)
all, on all lands granted in fee simple; provided
that this shall not be applicable to wells and
watercourses, which individuals have made for
their own use.
39
127 Hawai`i 206, 212, 277 P.3d 300, 306 (2012).
In Pratt II, the
Hawai`i Supreme Court stated:
In . . . State v. Hanapi, 89 Hawai`i 177, 970 P.2d
485 (1998), we held that a criminal defendant
asserting [the legal privilege for native
Hawaiians to engage in customary or traditional
native Hawaiian practices when such practices
conflict with State statutes or regulations] as a
defense to criminal charges must satisfy, “at
minimum”, the following three-prong test: (1) the
defendant must be “native Hawaiian” according to
the criteria established in PASH, (2) the claimed
right must be “constitutionally protected as a
customary or traditional native Hawaiian
practice,” and (3) the conduct must occur on
undeveloped property. Id. at 185–86, 970 P.2d at
493–94. In that case, we held that Hanapi had not
satisfied this test, so the court’s analysis
stopped there. Id. at 187, 970 P.2d at 495.
Id. at 207, 277 P.3d at 301 (footnote omitted).8
Pratt II took
the Hanapi analysis one step further, articulating “the analysis
the courts must undertake when a defendant has made the ‘minimum’
showing from Hanapi.”
Id.
If a defendant satisfies the three-
part Hanapi test, the court must balance the defendant’s and the
state’s competing interests under the totality of the
circumstances.
Id. at 213-18, 277 P.3d at 307-12.
The Hawai`i
Supreme Court also emphasized that
the constitutional protection is not absolute; it
only protects the “reasonable” exercise of native
8
Although Pratt and Hanapi involved Article XII, § 7 as a
defense to criminal prosecution, the analysis also applies in
civil cases, as evidenced by the fact that Hanapi articulated the
three-factor test based on the Hawai`i Supreme Court’s analysis
in PASH, which was not a criminal case. See Hanapi, 89 Hawai`i
at 186-87, 970 P.2d at 494-95.
40
Hawaiian rights. [PASH, 79 Hawai`i] at 442, 903
P.2d at 1263. Then, the court pointed out that
the constitution gives the State the “power to
regulate the exercise of customarily and
traditionally exercised Hawaiian rights,” and that
the same provision obligates the State to protect
the exercise of those rights “to the extent
feasible.” Id. at 450 n.43, 903 P.2d at 1271
n.43.
Id. at 215, 277 P.3d at 309.
In the instant case, Plaintiffs are native Hawaiians
who declare the native Hawaiian religion as their faith.9
[Second Amended Complaint at ¶¶ 8, 12(c).]
Plaintiffs allege
that Defendants have prevented, and are preventing, them from
engaging in certain practices that are critical to the tenets of
the native Hawaiian religion.
Count XXI alleges that religious
practices at issue are also protected by Article XII, § 7 and
§ 1-1.
In order for Count XXI to survive Defendant Abercrombie’s
Motion, the Second Amended Complaint must have alleged sufficient
facts to allow this Court to draw the reasonable inference that:
Plaintiffs’ activities are customary and traditional native
Hawaiian practices protected by Article XII, § 7 and § 1-1; and
Plaintiffs have a protected right to engage in those activities
at Saguaro and Red Rock.
9
“PASH defines ‘native Hawaiians’ as ‘descendants of native
Hawaiians who inhabited the islands prior to 1778[.]’” Pratt II,
127 Hawai`i at 207, 277 P.3d at 301 (alteration in Pratt II)
(quoting PASH, 79 Hawai`i 425, 449, 903 P.2d 1246, 1270 (1995)).
41
In the instant case, Plaintiffs argue that there is a
genuine dispute of material fact as to whether Saguaro and Red
Rock are developed private lands or should be deemed undeveloped,
or less than fully developed, public lands.
Defendant
Abercrombie argues that the prisons are private, developed
property, and, moreover, the right to continue customary and
traditional native Hawaiian practices is associated with a native
Hawaiian’s ahupua`a of familial residence.
Thus, Defendant
Abercrombie argues that Article XII, § 7 and § 1-1 do not provide
Plaintiffs with the right to continue customary and traditional
native Hawaiian practices at Saguaro and Red Rock.
With regard to what is considered undeveloped or less
than fully developed public land, the Hawai`i Supreme Court has
stated:
we hold that if property is deemed “fully
developed,” i.e., lands zoned and used for
residential purposes with existing dwellings,
improvements, and infrastructure, it is always
“inconsistent” to permit the practice of
traditional and customary native Hawaiian rights
on such property. In accordance with PASH,
however, we reserve the question as to the status
of native Hawaiian rights on property that is
“less than fully developed.” [79 Hawai`i] at 450,
903 P.2d at 1271.
Hanapi, 89 Hawai`i at 186-87, 970 P.2d at 494-95 (1998) (footnote
omitted) (emphasis in Hanapi).
The Hawai`i Supreme Court noted
that, although it referred to residential property “as an example
of ‘fully developed’ property[,] [t]here may be other examples of
42
‘fully developed’ property as well where the existing uses of the
property may be inconsistent with the exercise of protected
native Hawaiian rights.”
Id. at 187 n.10, 970 P.2d at 495 n.10.
However, since Hanapi, the Hawai`i Supreme Court has not revised
the issues of what constitutes “less than fully developed”
property and what customary and traditional rights native
Hawaiians may exercise on “less than fully developed” property.
See, e.g., Pratt II, 127 Hawai`i at 208, 277 P.3d at 302 (the
defendant was cited for violating a Hawai`i Administrative Rules
provision regarding closed areas of state parks “when he was
found in a closed area of the Kalalau Valley in the Nâ Pali Coast
State Wilderness Park on Kaua`i”).
Although there is no state court precedent directly on
point as to the issue of whether privately owned correctional
institutions, which house state inmates pursuant to contract,
constitute less than fully developed property, based on the state
courts’ analyses in cases addressing other types of property,
Saguaro and Red Rock arguably fall within the class of nonresidential, fully developed property.
This Court, however, need
not rule upon this issue because Count XXI fails on another
ground.
The protection of customary and traditional rights
requires either: 1) that the native Hawaiian asserting the
protected right practices that right within the ahupua`a in which
43
he resides and which his family historically resided; or 2) if
the native Hawaiian seeks protection of a right extending beyond
that ahupua`a, the right must “have been customarily and
traditionally exercised in this manner.”
See Pele Defense Fund,
73 Haw. at 620, 837 P.2d at 1272.
With regard to the relationship between customary and
traditional rights and a native Hawaiian’s ahupua`a, the Hawai`i
Supreme Court has stated:
We held that HRS § 7–1 contains two types of
rights: “gathering rights which are specifically
limited and enumerated, and rights to access and
water which are framed in general terms.”
[Kalipi, 66 Haw.] at 5, 656 P.2d at 748. With
respect to these rights, we stated that “lawful
occupants of an ahupuaa may, for the purposes of
practicing native Hawaiian customs and traditions,
enter undeveloped lands within the ahupuaa to
gather those items enumerated in the statute.”
Id. at 7–8, 656 P.2d at 749. The “undeveloped
lands” limitation was imposed by the court to
balance the concept of land ownership with that of
native rights. Id. Because Kalipi asserted his
rights based on ownership of land and not
residence in the ahupua`a, we held that he was not
entitled to exercise native gathering rights in
Ohia. Id. at 9, 656 P.2d at 750.
We further held that HRS § 1–1’s “Hawaiian
usage” clause may establish certain customary
Hawaiian rights beyond those found in HRS § 7–1.
Id. at 9–10, 656 P.2d at 750. Thus, we “believe
that the retention of a Hawaiian tradition should
in each case be determined by balancing the
respective interests and harm once it is
established that the application of the custom has
continued in a particular area.” Id. at 10, 656
P.2d at 751. Noting testimony that “there have
continued in certain ahupuaa a range of practices
associated with the ancient way of life which
required the utilization of the undeveloped
44
property of others and which were not found in
§ 7–1,” we held that HRS § 1–1 insures the
continuance of these enduring practices “for so
long as no actual harm is done thereby.” Id.
. . . .
Like Kalipi, [Pele Defense Fund (“PDF”)]
members assert native Hawaiian rights based on
article XII, § 7 and HRS § 1–1 in an ahupua`a
other than the ones in which they reside. Unlike
Kalipi, PDF members claim these rights based on
the traditional access and gathering patterns of
native Hawaiians in the Puna region. Because
Kalipi based his claims entirely on land
ownership, rather than on the practiced customs of
Hawaiians on Molokai, the issue facing us is
somewhat different from the issue in Kalipi. In
Kalipi, we foresaw that “[t]he precise nature and
scope of rights retained by § 1–1 would, of
course, depend upon the particular circumstances
of each case.” 66 Haw. at 12, 656 P.2d at 752.
Thus, we upheld the rights of native
Hawaiians to enter undeveloped lands owned by
others to practice continuously exercised access
and gathering rights necessary for subsistence,
cultural or religious purposes so long as no
actual harm was done by the practice. As found by
the Kalipi court, and reported by the
Constitutional Convention committee that drafted
article XII, § 7, these rights are associated with
residency within a particular ahupua`a. See
Stand. Comm. Rep. No. 57, reprinted in 1
Proceedings of the Constitutional Convention of
Hawaii of 1978, 637.
The Committee on Hawaiian Affairs added what
is now article XII, § 7 to reaffirm customarily
and traditionally exercised rights of native
Hawaiians, while giving the State the power to
regulate these rights. Id. at 639. Although
these rights were primarily associated with
tenancy within a particular ahupua`a, the
committee report explicitly states that the new
section “reaffirms all rights customarily and
traditionally held by ancient Hawaiians.” Id. at
640 (emphasis added). The committee contemplated
45
that some traditional rights might extend beyond
the ahupua`a; “[f]or instance, it was customary
for a Hawaiian to use trails outside the ahupua`a
in which he lived to get to another part of the
Island.” Id. The committee intended this
provision to protect the broadest possible
spectrum of native rights[.]
. . . .
If, as argued by PDF, the customary and
traditional rights associated with tenancy in an
ahupua`a extended beyond the boundaries of the
ahupua`a, then article XII, § 7 protects those
rights as well. The drafters of the
constitutional amendment emphasized that all such
rights were reaffirmed and that they did not
intend for the provision to be narrowly construed.
We therefore hold that native Hawaiian rights
protected by article XII, § 7 may extend beyond
the ahupua`a in which a native Hawaiian resides
where such rights have been customarily and
traditionally exercised in this manner.
Id. at 617-19, 837 P.2d at 1270-72 (some alterations in Pele
Defense Fund) (footnotes omitted).
In the instant case, none of the Plaintiffs alleges
that his respective correctional facility is within the ahupua`a
where his ancestral land was located.10
Nor does the Second
10
For example, in Pratt II, where the defendant was cited
after being found in a closed area of a state wilderness park,
the defendant presented the following evidence:
Pratt testified that he was born in Waimea to
parents from O`ahu and the island of Hawai`i. He
presented a family tree and testified that he is
75% native Hawaiian. Pratt named Kupihea as a
family line, though that name does not appear on
his family tree. The defense then presented its
Exhibit 4, a book published by the State of
Hawai`i called “An Archaeological Reconnaissance
(continued...)
46
Amended Complaint allege that, in the native Hawaiian culture,
the religious practices that Plaintiffs seek to engage in at
Saguaro and Red Rock have been customarily and traditionally
exercised outside of the ahupua`a under circumstances analogous
to the instant case.
This Court therefore concludes that, to the
extent that Plaintiffs allege they are entitled to engage in
customary and traditional practices, pursuant to Article XII, § 7
of the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1, at
either Saguaro or Red Rock, Plaintiffs’ claim fails because they
have not pled the requisite connection between the customary and
traditional practices and the land where they seek to engage in
those practices.
There is also another theory set forth in Count XXI.
Although Plaintiffs have represented that they are not
challenging the practice of transferring native Hawaiian inmates
to out-of-state facilities, Count XXI does present such a
challenge.
The Second Amended Complaint alleges that, “[b]ut for
Plaintiffs’ involuntary seizure from the State of Hawaii to the
State of Arizona, Plaintiffs would have continued to practice
10
(...continued)
Survey: Na Pali Coast State Park, Island of
Kaua`i.” The book lists a land grant sold to the
Kupihea family for part of the ahupua`a for the
Kalalau Valley. Pratt testified that this is his
family’s land, and that this is where he spends
time in the Park.
127 Hawai`i at 208, 277 P.3d at 302.
47
critical tenets of their Native Hawaiian faith in their
respective ahupua`a as their ancestors had done before them.”
[Second Amended Complaint at ¶ 406.]
Implicit in Count XXI is
the claim that, if Plaintiffs cannot engage in practices
protected by Article XII, § 7 and § 1-1 at Saguaro and Red Rock,
Plaintiffs’ transfers to those facilities violated their rights
under Article XII, § 7 and § 1-1.
This argument, however, also
fails.
As previously noted, the rights protected by Article
XII, § 7 and § 1-1 are not absolute.
Pratt II, 127 Hawai`i at
213, 277 P.3d at 307 (“For example, the constitutional language
protecting the right to traditional and customary practices is
qualified by the phrase ‘subject to the right of the State to
regulate such rights.’”).
Hawai`i law recognizes that the State
may have important interests that require transferring State
inmates to out-of-state correctional institutions.
Pursuant to
Haw. Rev. Stat. § 353-16.2(a), the director of DPS may only
transfer a committed felon to an out-of-state institution if
the transfer is either:
(1) In the interest of the security,
management of the correctional institution
where the inmate is presently placed, or the
reduction of prison overcrowding; or
(2)
In the interest of the inmate.
Plaintiffs essentially ask this Court to rule that the
State’s affirmative duty under Article XII, § 7 “to preserve and
48
protect traditional and customary native Hawaiian rights,” Ka
Pa`akai, 94 Hawai`i at 45, 7 P.3d at 1082, supercedes any of the
State’s interests which may favor the transfer of committed
felons who are native Hawaiians to out-of-state correctional
institutions.
Further, taking Plaintiffs’ argument to its
logical conclusion, because Article XII, § 7 protects a native
Hawaiian’s practice of customary and traditional rights in his
ahupua`a, the State would have to maintain a correctional
facility in every ahupua`a to allow native Hawaiian inmates to
practice their customary and traditional rights.
Neither Article
XII, § 7, § 1-1, nor Hawai`i case law interpreting those
provisions requires such a rule.
See, e.g., Pratt I, 124 Hawai`i
329, 356, 243 P.3d 289, 316 (Ct. App. 2010) (“Without question,
under Hawai`i law, the State must protect the reasonable exercise
of customary or traditional native Hawaiian rights, to the extent
feasible, but the State is authorized to impose appropriate
regulations to govern the exercise of these rights.” (citing
article XII, § 7; PASH, 79 Hawai`i at 450–51, 903 P.2d at 1271)).
Thus, to the extent that Count XXI challenges the State’s
authority to transfer Plaintiffs to out-of-state correctional
institutions, Count XXI fails as a matter of law.
This Court concludes that Count XXI does not state a
plausible claim.
Further, under the circumstances of this case
and in light of the nature of the claim in Count XXI, allowing
49
Plaintiffs the opportunity to amend Count XXI would be futile.
This Court therefore GRANTS Defendant Abercrombie’s Motion as to
Count XXI, which is DISMISSED WITH PREJUDICE as to all
Defendants.
IV.
Defendant Abercrombie’s Request for Sanctions
In his Reply, Defendant Abercrombie argued that
Plaintiffs raised a groundless argument that he waived the right
to argue that he is not a “person” for purposes of 48 U.S.C.
§ 1983 when Defendants removed this action.
He contends that
this Court should sanction Plaintiffs, and he asks this Court to
award him the fees he incurred responding to Plaintiffs’ waiver
argument.
[Reply at 12.]
Defendant Abercrombie does not identify the legal
authority he relies upon for the requested sanctions.
To the
extent that he seeks sanctions pursuant to Fed. R. Civ. P. 11,
Defendant Abercrombie must file a separate motion for sanctions
because this Court cannot award Rule 11 sanctions requested in a
reply memorandum.
See Fed. R. Civ. P. 11(c)(2).
Defendant
Abercrombie’s request for sanctions is therefore DENIED WITHOUT
PREJUDICE to the filing of a motion for sanctions that complies
with the requirements of Rule 11.
This Court emphasizes that it
expresses no opinion at this time as to the merits of such a
motion.
50
CONCLUSION
On the basis of the foregoing, Defendant Abercrombie’s
Motion for Judgment on the Pleadings, filed June 7, 2013, is
HEREBY GRANTED.
All of Plaintiffs’ claims against Defendant
Abercrombie in the Second Amended Complaint and the Supplemental
Complaint are HEREBY DISMISSED WITH PREJUDICE.
Further, Count
XXI (Plaintiffs’ claim alleging violations of Article XII, § 7 of
the Hawai`i State Constitution and Haw. Rev. Stat. § 1-1) in the
Second Amended Complaint and incorporated into the Supplemental
Complaint is HEREBY DISMISSED WITH PREJUDICE as to all
Defendants.
In addition, Defendant Abercrombie’s request for
sanctions is HEREBY DENIED WITHOUT PREJUDICE.
This Court directs the Clerk’s Office to terminate
Defendant Abercrombie as a party.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 13, 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 DEFENDANT NEIL
ABERCROMBIE’S MOTION FOR JUDGMENT ON THE PLEADINGS
51
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