Davis et al v. Abercrombie et al
Filing
529
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR PARTIAL RECONSIDERATION OF ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (DOC. 497) re 500 ; 497 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/02/2014. -- Defendants' Motion for Partial Reconsideration of Order on Defendants' Motions for Summary Judgment (Doc. 497), filed April 14, 2014, is HEREBY GRANTED IN PART AND DENIED IN PART. This Court will amend its Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment; Granting in Part and Denying in Part Plaintiff Robert Holbron's Counter-Motion for Summary Judgment on His Claims; and Granting in Part and Denying in Part Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Their Claims under the Religious Land Use and Institutionalized Persons Act, [filed 3/31/14 (dkt. no. 497 ),] to grant summary judgment in favor of Defendants on the claims as to which thi s Court granted reconsideration in the instant order. In addition, this Court DENIES Defendants' alternate request for leave to take an interlocutory appeal from the amended version of the 3/31/14 Order. (eps)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
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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 FOR PARTIAL RECONSIDERATION OF
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOC. 497)
On March 31, 2014, this Court filed its Order Granting
in Part and Denying in Part Defendants’ Motion for Summary
Judgment; Granting in Part and Denying in Part Plaintiff Robert
Holbron’s Counter-Motion for Summary Judgment on His Claims; and
Granting in Part and Denying in Part Plaintiffs’ Motion for
Partial Summary Judgment Against Defendants as to Their Claims
under the Religious Land Use and Institutionalized Persons Act
(“3/31/14 Order”).1
[Dkt. no. 497.2]
On April 14, 2014,
Defendants Ted Sakai, in his official capacity as the Interim
Director of the Department of Public Safety (“Defendant Sakai”
and “DPS”), and Corrections Corporation of America (“CCA,”
collectively “Defendants”) filed their Motion for Partial
Reconsideration of Order on Defendants’ Motions for Summary
Judgment (Doc. 497) (“Motion for Reconsideration”).3
500.]
[Dkt. no.
Plaintiffs Richard Kapela Davis, Tyrone Galdones,
Michael Hughes, Damien Kaahu, Robert A. Holbron, James Kane, III,
Ellington Keawe, Kalai Poaha, and Tyrone Kawaelanilua`ole Na`oki
Galdones (collectively “Plaintiffs”) filed their memorandum in
opposition on April 28, 2014, and Defendants filed their reply on
May 12, 2014.
[Dkt. nos. 511, 518.]
The Court finds this matter
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
1
Defendants filed their Motion for Summary Judgment on July
31, 2013, [dkt. no. 361]; Plaintiff Robert Holbron filed his
Counter-Motion for Summary Judgment on His Claims on December 23,
2013, [dkt. no. 452]; and Plaintiffs filed their Motion for
Partial Summary Judgment Against Defendants as to Their Claims
under the Religious Land Use and Institutionalized Persons Act
(“Plaintiffs’ Motion for Summary Judgment”) on October 31, 2013
[dkt. no. 417].
2
The 3/31/14 Order is also available at 2014 WL 1321006.
3
The instant Motion for Reconsideration only addresses the
3/31/14 Order’s rulings as to Defendants’ Motion for Summary
Judgment.
2
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Defendants’
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
The Motion is GRANTED insofar as this
Court will amend the 3/31/14 Order to grant summary judgment in
favor of Defendants on the claims as to which this Court granted
reconsideration in the instant order.
In addition, this Court
DENIES Defendants’ alternative request that this Court grant them
leave to take an interlocutory appeal from the 3/31/14 Order.
BACKGROUND
The parties and this Court are familiar with the
factual and procedural background in this case, and this Court
will only discuss the background that is relevant to the instant
Motion for Reconsideration.
In the 3/31/14 Order, this Court, inter alia:
•denied summary judgment to Defendants as to Plaintiffs’ claim
under the Religious Land Use and Institutionalized Persons
Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”), regarding
daily, outdoor, group worship (“Count XXII”); [3/31/14
Order, 2014 WL 1321006, at *24;]
•denied summary judgment to Defendants as to Plaintiffs’ federal
free exercise claim, federal equal protection claim, state
free exercise claim, and state equal protection claim
regarding daily, outdoor, group worship (“Count I,”
“Count VI,” “Count XI,” and “Count XVI,” respectively); [id.
at *24-26;]
•denied summary judgment to Defendants as to the portions of
Plaintiffs’ RLUIPA claim (“Count XXIV”) based on: lack of
daily access to personal amulets and kala (seaweed); and
lack of communal access to ti shoots, pahu (tree stump
drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe
3
kā`eke`eke (percussion instrument), pūniu (small knee drum),
and `ohe hano ihu (bamboo nose flute); and granted summary
judgment to Defendants as to all other items at issue in
Count XXIV; [id. at *33;]
•denied summary judgment to Defendants as to the portions of
Plaintiffs’ federal free exercise claim (“Count III”) and
Plaintiffs’ state free exercise claim (“Court XIII”) based
on: daily access to a personal amulet and to kala; and
communal access to ti shoots, pahu, ipu, ipu heke,
`ohe kā`eke`eke, pūniu, and `ohe hano ihu; and granted
summary judgment to Defendants as to all other items at
issue in Count III; [id. at *33-34;]
•granted summary judgment to Defendants as to the portions of
Plaintiffs’ federal equal protection claim (“Count VIII”)
and Plaintiffs’ state equal protection claim (“Count XVIII”)
based on: ti leaf, lei, block of lama wood, pa`akai (sea
salt), kapa (cloth), `apu (coconut shell bowl), and moena
(woven floor mats made from lauhala, grass, or other natural
fibers); and denied summary judgment to Defendants as to all
other items at issue in Count VIII; [id. at *34;] and
•denied the motions for summary judgment without prejudice to the
extent that they sought summary judgment as to: Plaintiffs’
claims seeking prospective declaratory and injunctive relief
regarding Red Rock Correctional Center (“Red Rock”);
Plaintiff Poaha’s claims seeking prospective declaratory and
injunctive relief regarding Saguaro; Plaintiff Holbron’s
claims seeking prospective declaratory and injunctive relief
regarding restricted custody at Saguaro; and Plaintiff
Galdones’s request for prospective declaratory and
injunctive relief as to his state law retaliation claim [id.
at *3-5].
In the instant Motion for Reconsideration, Defendants argue that
each of the adverse rulings listed above was the result of either
an error or law or an erroneous application of the law to the
undisputed facts of this case.
In addition, Defendants argue
that this Court failed to rule on the following issues that
Defendants raised in their Motion for Summary Judgment: Defendant
Sakai is entitled to summary judgment because he did not
4
participate in the decision-making regarding the religious
programming at issue in this case; Plaintiff Galdones’s state law
retaliation claim fails as a matter of law and, even if he has a
viable claim, his request for punitive damages is meritless;
Plaintiffs’ state constitutional claims fail because Hawai`i law
does not recognize a private right of action for violations of
the Hawai`i State constitution; and Defendants are entitled to
summary judgment as to Count XXI, Plaintiffs’ claim based on
Article XII, § 7 of the Hawai`i State Constitution and Haw. Rev.
Stat. § 1-1.
STANDARD
In order to obtain reconsideration of the 3/31/14
Order, Defendants’ Motion for Reconsideration “must accomplish
two goals.
First, a motion for reconsideration must demonstrate
reasons why the court should reconsider its prior decision.
Second, a motion for reconsideration must set forth facts or law
of a strongly convincing nature to induce the court to reverse
its prior decision.”
See Donaldson v. Liberty Mut. Ins. Co., 947
F. Supp. 429, 430 (D. Hawai`i 1996).
This district court
recognizes three grounds for granting reconsideration of an
order: “(1) an intervening change in controlling law; (2) the
availability of new evidence; and (3) the need to correct clear
error or prevent manifest injustice.”
White v. Sabatino, 424 F.
Supp. 2d 1271, 1274 (D. Hawai`i 2006) (citing Mustafa v. Clark
5
County Sch. Dist., 157 F.3d 1169, 1178–79 (9th Cir. 1998)).
DISCUSSION
I.
Claims Regarding Daily, Outdoor, Group Worship
Defendants argue that this Court should have granted
summary judgment in their favor as to all of Plaintiffs’ claims
regarding daily, outdoor, group worship at sunrise.
Beginning
with Count XXII (Plaintiffs’ RLUIPA claim), the crux of
Defendants’ Motion for Reconsideration is that the undisputed
evidence in this case establishes that Defendants’ policy/custom
of prohibiting daily, outdoor, group worship at sunrise is the
least restrictive means of furthering a compelling governmental
interest.
Defendants argue that the evidence is undisputed that
Saguaro Correctional Center (“Saguaro”) “cannot accommodate daily
group worship of 179 inmates outdoors at sunrise” without
jeopardizing the safety and security of inmates and staff.
in Supp. of Motion for Reconsideration at 8.]
[Mem.
Defendants contend
that they were not obligated to consider other forms of worship,
i.e. less frequent worship gatherings, gatherings of smaller
groups of practitioners of the Native Hawaiian religion, or
gatherings at different times of the day or at different
locations, because “Plaintiffs’ grievances and their Motion for
Partial Summary Judgment cast this claim in absolute, ‘all-ornothing’ terms.”
[Id. at 4 (citations omitted).]
The only legal
authority Defendants cite in support of their narrow
6
interpretation of Plaintiffs’ claim is a case from the Eighth
Circuit, which is not binding on this Court.
[Id. at 5 (citing
Hamilton v. Schriro, 74 F.3d 1545, 1556 (8th Cir. 1996) (inmate’s
“own all-or-nothing position supports the prison officials’
contention that an out-right prohibition . . . is the least
restrictive means of achieving the compelling interests of prison
safety and security.”)).]
This Court therefore concludes that Defendants have not
identified any intervening change in the law or any error in this
Court’s legal analysis of Count XXII.
This Court reaffirms its
ruling that the evidence regarding Saguaro’s “faith-based pod,”
Saguaro’s schedule of religious services, and Red Rock’s
accommodation of a Buddhist inmate’s morning meditation raise
genuine issues of fact as to the least restrictive means
analysis.4
Even if this Court found that Defendants presented
4
Defendants argue that either Plaintiffs misled this Court
regarding this evidence or this Court misinterpreted the
evidence. [Mem. in Supp. of Motion for Reconsideration at 5-10.]
Defendants, however, merely reiterate arguments that they raised
in connection with their Motion for Summary Judgment, and they
disagree with this Court’s ruling on those arguments. This is
not sufficient grounds for reconsideration of the 3/31/14 Order.
See White, 424 F. Supp. 2d at 1274 (“Mere disagreement with a
previous order is an insufficient basis for reconsideration.”
(citing Leong v. Hilton Hotels Corp., 689 F. Supp. 1572 (D. Haw.
1988))).
For example, Defendants argue, “[w]hile Plaintiffs reference
a ‘faith-pod’ to argue that a Christian pod exists, there is no
support for this in the record.” [Mem. in Supp. of Motion for
Reconsideration at 7.] This Court, however, acknowledged
(continued...)
7
uncontroverted evidence that it is not possible to allow all of
the Saguaro inmates who practice the Native Hawaiian religion to
worship together outside, at sunrise, on a daily basis, there is
a triable issue of fact regarding whether there are other means
to accommodate, at least in part, Plaintiffs’ religious exercise
regarding group worship.
This Court therefore DENIES Defendants’
Motion for Reconsideration as to Count XXII.
In the 3/31/14 Order, this Court concluded that there
were triable issues of fact as to Count I and Count VI based, in
part, upon the factual issues that this Court identified as to
Count XXII.
2014 WL 1321006, at *24-25.
This Court therefore
also concludes that Defendants have failed to establish that they
are entitled to reconsideration of this Court’s rulings regarding
Counts I and Count VI.
Defendants’ Motion for Reconsideration is
DENIED as to Count I and Count VI.
4
(...continued)
Defendants’ evidence that the pod was non-denominational and open
to inmates of any faith, but this Court found that other evidence
about the predominately Christian influences in the pod raised
questions of fact. 3/31/14 Order, 2014 WL 1321006, at *23.
This Court also notes that Defendants’ representation that
“[t]he record shows that Warden [Todd] Thomas had considered and
rejected” a pod for Saguaro inmates who practice the Native
Hawaiian religion misstates the evidence. [Mem. in Supp. of
Motion for Reconsideration at 7.] Defendants merely point to
general statements that Warden Thomas made; none of the portions
of his declarations that Defendants cite actually discusses
whether he considered a pod for the inmate practitioners of the
Native Hawaiian religion.
8
In the 3/31/14 Order, this Court also concluded that
there were triable issues of fact as to Plaintiffs’ claims
alleging violations of the Hawai`i State Constitution (Count XI
and Count XVI) based upon the factual issues that this Court
identified as to Plaintiffs’ RLUIPA claim and federal
constitutional claims.
2014 WL 1321006, at *24-25.
In addition
to Defendants’ substantive arguments for reconsideration as to
Counts XI and XVI, which are the same as the arguments they raise
regarding the RLUIPA claim and the federal constitutional claims,
Defendants argue that this Court failed to rule on their argument
that there is no private cause of action for violations of the
Hawai`i State Constitution.
Reconsideration at 29.]
[Mem. in Supp. of Motion for
In their Motion for Summary Judgment,
Defendants argued that “such legal claims are not cognizable by
private parties directly under the state constitution.”
[Mem. in
Supp. of Defs.’ Motion for Summary Judgment at 44-45 (some
citations omitted) (citing Gonzalez v. Okagawa, 2013 WL 2423219,
at *10 (D. Haw. June 4, 2013) (“to the extent Plaintiff is
bringing this claim directly under the Hawaii Constitution,
Hawaii courts have declined to recognize a direct private cause
of action for violation of rights guaranteed under the provisions
of the Hawaii Constitution listed by Plaintiffs”) (citing Makanui
v. Dep’t of Educ., 6 Haw. App. 397, 721 P.2d 165, 170 n.2 (Haw.
App. 1986) (“We do not decide whether Hawaii recognizes a cause
9
of action for damages for deprivation of rights under the state’s
constitution or laws.”))).]
This portion of Defendants’ Motion for Summary Judgment
focused on Plaintiffs’ claims for damages for violations of the
state constitution, and this Court expressly limited the scope of
the 3/31/14 Order to Plaintiffs’ claims for prospective
declaratory and injunctive relief.
2014 WL 1321006, at *3.
Defendants’ have failed to show that it was an error of law for
this Court to conclude that Plaintiffs could pursue their claims
for prospective declaratory and injunctive relief for alleged
violations of the Hawai`i State Constitution.
This Court therefore concludes that Defendants have
failed to establish that they are entitled to reconsideration of
the rulings in the 3/31/14 Order regarding Count XI and
Count XVI.
Defendants’ Motion for Reconsideration is DENIED as
to Count XI and Count XVI.
II.
Claims Regarding Access to Sacred Items
Defendants also argue that this Court should have
granted summary judgment in their favor as to all of Plaintiffs’
claims regarding access to sacred items.
A.
RLUIPA
Beginning with Count XXIV (Plaintiffs’ RLUIPA claim
regarding access to sacred items), Defendants argue that this
Court should have found that Plaintiffs failed to establish their
10
prima facie case and this Court did not need to reach either the
compelling interest analysis or the least restrictive means
analysis.
13.]
[Mem. in Supp. of Motion for Reconsideration at 12-
According to Defendants, “Plaintiffs fail[ed] to carry
their initial burden to prove, from this record, that their
religious exercise was substantially burdened by Defendants’
conduct or policy.”
[Id. at 13 (emphasis in original) (citation
omitted).]
This Court denied Defendants summary judgment on
Count XXIV as to the following items: personal amulets, kala
(seaweed), ti shoots, pahu (tree stump drum), ipu (gourd drum),
ipu heke (double gourd drum), `ohe kā`eke`eke (percussion
instrument), pūniu (small knee drum), and `ohe hano ihu (bamboo
nose flute).
This Court assumed, for purposes of Defendants’
Motion for Summary Judgment, that Plaintiffs’ religious exercise
was substantially burdened by their lack of daily access to a
personal amulet.
3/31/14 Order, 2014 WL 1321006, at *29.
Defendants cite Warsoldier v. Woodford, 418 F.3d 989 (9th Cir.
2005), for the majority of the standards for the substantial
burden analysis.
13.]
[Mem. in Supp. of Motion for Reconsideration at
This Court applied the same standards in reviewing all of
Plaintiffs’ RLUIPA claims.
See, e.g., 3/31/14 Order, 2014 WL
1321006, at *20-21 (quoting Warsoldier, 418 F.3d at 995).
Defendants essentially argue that this Court erred in its
11
application of these standards because the items remaining at
issue in Count XXIV are merely “‘devotional accessories.’”
[Mem.
in Supp. of Motion for Reconsideration at 14 (quoting Cutter v.
Wilkinson, 544 U.S. 709, 720 n.8 (2005)).]
They also argue that
the denial of access to these items is not a substantial burden
because it “merely offends [Plaintiffs’] ‘religious sensibilities
or tastes, or fails to satisfy [their] religious desires,’
without forcing [Plaintiffs] to violate or abandon beliefs.”
[Id. at 13-14 (quoting Navajo Nation v. U.S. Forest Serv., 535
F.3d 1058, 1063 (9th Cir. 2008)).]
As to the denial of daily access to personal amulets,
Plaintiffs did more than only present testimony that their
religious sensibilities or tastes were offended and that
Defendants’ policies do not satisfy their religious desires.
First, it is undisputed that Saguaro theoretically allows an
inmate practitioner of the Native Hawaiian religion to have a
personal amulet or religious item in his cell, but they currently
do not have access to such amulets because Saguaro has
experienced difficulties identifying an approved vendor.
Order, 2014 WL 1321006, at *29.
3/31/14
Plaintiff Davis, for example,
described his sincere beliefs regarding his personal amulet, its
symbolism, and how he uses it in his religious activities.
[Joint Pltfs.’ Amended Separate Concise Statement of Facts in
12
Opp. to Defs.’ Motion for Summary Judgment,5 filed 1/6/14 (dkt.
no. 466) (“Joint Pltfs.’ Responsive CSOF”), Decl. of Richard
Davis (“Davis Decl.”) at ¶¶ 35-39.]
He also stated that the
confiscation of his personal amulet, and other items, caused him
“spiritual injury.”
[Id. at ¶ 49.]
Further, as noted in the
3/31/14 Order, Ka`iana Haili, who serves as a volunteer spiritual
advisor to Saguaro’s inmate practitioners of the Native Hawaiian
religion, testified that a practitioner’s personal amulet
connects him to his ancestors and his “innate religious,
. . . spiritual beliefs.” 2014 WL 1321006, at *14 (citation
omitted).
Plaintiffs also presented expert testimony regarding
the religious significance of a practitioner’s personal amulet.
[Concise Statement of Facts in Supp. of Pltfs.’ Motion for
Summary Judgment, filed 10/31/13 (dkt. no. 418) (“Pltfs.’ CSOF”),
Decl. of Ty Preston Kāwika Tengan, Exh. 1 (expert report) at
¶¶ 25-29.]
Defendants did not present any evidence to contest
Plaintiffs’ evidence on the issue of whether the lack of daily
access to a personal amulet is a substantial burden to
Plaintiffs’ religious exercise.
In reviewing Defendants’ Motion for Summary Judgment,
this Court was required to view the record in the light most
5
“Joint Plaintiffs” refer to Plaintiffs Davis, Galdones,
Hughes, Kaahu, Kane, Keawe, and Poaha because Plaintiff Holbron
filed a separate memorandum in opposition and counter-motion to
Defendants’ Motion for Summary Judgment.
13
favorable to Plaintiffs.
976 (9th Cir. 2013).
See Crowley v. Bannister, 734 F.3d 967,
Construing the available record as a whole
in the light most favorable to Plaintiffs, this Court found, for
purposes of Defendants’ Motion for Summary Judgment, that the
denial of daily access to a personal amulet is a substantial
burden to Plaintiffs’ religious exercise.
Defendants have not
presented any ground that warrants reconsideration of that
finding.
As to the remaining items at issue in Count XXIV, this
Court did not find that Plaintiffs established a substantial
burden on their religious exercise.
This Court, inter alia,
found that there were genuine issues of fact for trial as to the
substantial burden analysis for each of these items.
Order, 2014 WL 1321006, at *31-32.6
3/31/14
Defendants merely disagree
with that finding, and their disagreement is not a sufficient
basis to grant reconsideration.
6
This Court acknowledges that it did not expressly state
that it found there were genuine issues of material fact as to
the substantial burden analysis for the musical instruments
remaining at issue in Count XXIV. This Court stated, “[e]ven if
this Court assumes that Plaintiffs’ religious exercise is
substantially burdened by their lack of daily access to the
musical instruments identified in Count XXIV, Defendants have a
compelling interest in maintaining safety and security in the
facility.” 3/31/14 Order, 2014 WL 1321006, at *32. This Court
clarifies that the statement “if this Court assumes” reflects
this Court’s finding that there are genuine issues of material
fact as to the substantial burden analysis for the musical
instruments remaining at issue in Count XXIV.
14
In addition, Defendants argue that this Court failed to
consider evidence that the Native Hawaiian drums and the
`ohe hano ihu (bamboo nose flute) are actually available to
Plaintiffs in the Saguaro chapel.
[Mem. in Supp. of Motion for
Reconsideration at 15-16 (citing Pltfs.’ CSOF, Decl. of
Sharla Manley, Exh. C at 61).]
Exhibit C is the Affidavit of
Carl Richey in Support of Defendants’ Motion to Dismiss (“Richey
Affidavit”).
Defendants originally filed the Motion to Dismiss
on December 31, 2012, [dkt. no. 220,] and the Richey Affidavit is
dated December 20, 2012.
[Richey Aff. at pg. 10.]
At that time,
Carl Richey was the Grievance Coordinator and Property Officer at
Red Rock.
[Id. at ¶ 2.]
The page of Exhibit C which Defendants
cite in the Motion for Reconsideration is the
RETENTION LIST FOR NATIVE HAWAIIAN RELIGION
Retention List for Group [Hui]
Items to be held in storage for
ceremonial purposes only
[Exh. C at 61-62 (“Red Rock Group Retention List”).]
It is part
of Attachment D to the Richey Affidavit, which is “a true and
accurate copy of Formal Grievance #09-132 and Informal Resolution
#09-132.”
[Id. at 8 (Richey Aff. at ¶ 38).]
Formal Grievance
#09-132 is a grievance that Plaintiff Kane submitted alleging
violations of his right to practice his Native Hawaiian religion
while he was incarcerated at Red Rock.
Assistant Warden Hart
responded to the grievance on September 29, 2009.
15
[Id. at 55-
56.]
Informal Resolution #09-132 was submitted by Plaintiff Kane
on September 16, 2009 and signed by a Red Rock staff person on
September 21, 2009.
[Id. at 57-58.]
Attached to the Informal
Resolution are Red Rock Inmate Request Forms by Plaintiff Kane
dated July 20, 2009 and the staff responses, some of which are
dated August 4, 2009 and some of which are dated August 25, 2009.
[Id. at 59-65.]
The Red Rock Group Retention List was part of a
response to his Inmate Request.
The Red Rock Group Retention List does state that the
native Hawaiian drums, percussion instruments, and nose flute
that remain at issue in Count XXIV are held in storage for
ceremonial use.
[Id. at 61.]
The list, however, related to Red
Rock and was provided to Plaintiff Kane in 2009.
Thus, it does
not constitute evidence that the same instruments are currently
available at the Saguaro chapel for inmate practitioners of the
Native Hawaiian religion.
Warden Thomas identified “sacred items [that] are
available for use and stored in the chapel” so that inmate
practitioners of the Native Hawaiian religion can use them “[f]or
formal communal religious ceremonies conducted at” Saguaro.
[Reply in Supp. of Defs.’ Motion for Summary Judgment, Decl. of
Warden Thomas at ¶ 126.]
Warden Thomas also provided a virtually
identical list when Defendants filed their Motion for Summary
Judgment.
[Defs.’ Motion for Summary Judgment, Concise Statement
16
of Facts in Supp. (“Defs.’ CSOF”), Decl. of Warden Thomas at
¶ 44.]
The items remaining at issue in Count XXIV, however, are
not among the items that he identified, and Warden Thomas did not
state that his lists were not exhaustive.
In the Motion for Reconsideration, Defendants argue
that the evidence proves that Warden Thomas’s lists were not
exhaustive.
[Mem. in Supp. of Motion for Reconsideration at 16
(some citations omitted) (citing Defs.’ CSOF, Decl. of Jamie D.
Guzman (“Guzman Decl.”), Exh. 12; Joint Pltfs.’ Responsive CSOF,
Decl. of Sharla Manley (“Manley Responsive Decl.”), Exh. 11 at
285-86).7]
Defendants state that the Saguaro Correctional Center
Religious Artifacts list represents “the inventory of religious
items available to Native Hawaiian practitioners in the chapel
at” Saguaro (“Saguaro Chapel Artifacts List”).
¶ 14, Exh. 12.]
[Guzman Decl. at
Although the specific instruments remaining at
issue in Count XXIV – pahu (tree stump drum), ipu (gourd drum),
ipu heke (double gourd drum), `ohe kā`eke`eke (percussion
instrument), pūniu (small knee drum), and `ohe hano ihu (bamboo
nose flute) – are not on the Saguaro Chapel Artifacts List, there
is a “PUONE/NOSE FLUTE” and a “DRUM.”
7
[Id., Exh. 12 at 2-3
This Court notes that Defendants could have pointed out in
their Motion for Summary Judgment and/or their reply in support
of their Motion for Summary Judgment that Warden Thomas’s lists
were not exhaustive, and Defendants could have highlighted the
additional exhibits that they wanted this Court to consider in
conjunction with Warden Thomas’s declarations.
17
(emphases in original).]
The Saguaro Chapel Artifacts List also
states: “VEGETATION IS BROUGHT IN AS NEEDED TO THE FACILITY FOR
THE CEREMONIES, THEN TAKEN OUT OF THE FACILITY WHEN CEREMONIES
ARE OVER.”
[Id. at 3 (emphasis in original).]
In addition,
Haili testified:
The drums, the pahu and the single gourd and
the double gourd drums, we’ve brought several.
Several have deteriorated, been broken, or
destroyed, anonymously, and we’ve replaced at our
own personal expense. The `ohe ka `eke`eke has
never been in the prison.
The pu niu is not in the prison.
`Ohe hano ihu, the bamboo nose was, have been
a few, but they have been broken.
There are a couple of floor mats.
not from Hawaii.
They are
Ipu heke, some of these things that they were
supposed to have for dancing have never been
allowed that I know of.
Q.
Okay. And when you say that they have never
been allowed, do you mean that someone has,
[Saguaro] has specifically prohibited that kind of
item coming into the facility?
A.
Oh, no, nobody’s bothered to be able to
afford and provide, and there isn’t enough room in
the chapel for storage.
[Manley Responsive Decl., Exh. 11 at 285-86.]
Plaintiffs acknowledged that some of the sacred items
which they sought access to are available for communal use in the
Saguaro chapel.
See, e.g., Davis. Decl. at ¶ 33.
Plaintiffs did
not present evidence identifying which of the items are available
18
and which are not.
Even in their memorandum in opposition to the
Motion for Reconsideration, Plaintiffs do not challenge
Defendants’ evidence regarding the availability of items in the
Saguaro chapel.
Plaintiffs instead emphasize that: CCA denied
Plaintiffs’ requests for daily access to these items; they can
only access items available in the chapel during the weekly
Hawaiian classes; and Plaintiffs have, at times, been turned away
from those classes.
[Mem. in Opp. to Motion for Reconsideration
at 10-11.]
In light of the evidence in the summary judgment record
that Defendants have now highlighted, this Court finds that
Defendants are entitled to reconsideration of this Court’s ruling
as to the portions of Count XXIV based on the lack of access to
kala (seaweed), ti shoots, pahu (tree stump drum), ipu (gourd
drum), ipu heke (double gourd drum), `ohe kā`eke`eke (percussion
instrument), pūniu (small knee drum), and `ohe hano ihu (bamboo
nose flute).
Insofar as Plaintiffs did not present evidence that
these specific items are prohibited, the undisputed record
indicates that: Defendants allow these, or comparable items, to
be available for communal use in the chapel; but, at times the
items may not be available because, for example, existing items
were broken or requested items have not been donated.
To the
extent that Plaintiffs argue they should have daily access to
these items, even if this Court assumes that the lack of daily
19
access to these items is a substantial burden on their religious
exercise, the undisputed evidence is that Defendants limit access
to these items to only communal use in the chapel because of the
limited space available, scheduling concerns, and security
issues.
This Court therefore finds that the custom/policy of
allowing only weekly communal access in the chapel to kala, ti
shoots, pahu, ipu, ipu heke, `ohe kā`eke`eke, and pūniu is the
least restrictive means of furthering compelling governmental
interests.
However, this Court cannot find, based on the current
record, that the custom/policy of allowing only weekly communal
access in the chapel to `ohe hano ihu is the least restrictive
means.
Defendants have not addressed the evidence that inmates
who practice Drudism are allowed to keep a wooden flute in their
cells.
See 3/31/14 Order, 2014 WL 1321006, at *32.
Such an item
presents the same space and security concerns as the
`ohe hano ihu.
This Court therefore reaffirms its finding that
the evidence of an accommodation for a similar instrument for
another religious group raises a genuine issue of fact as to the
question of whether Saguaro’s prohibition of daily access to
Native Hawaiian flutes is the least restrictive means available.
Defendants’ Motion for Reconsideration is GRANTED IN
PART AND DENIED IN PART as to Count XXIV.
The Motion for
Reconsideration is DENIED as to the portion of Plaintiffs’ RLUIPA
20
claim (Count XXIV) based on Plaintiffs’ lack of daily access to
personal amulets and `ohe hano ihu (bamboo nose flute).
The
Motion for Reconsideration is GRANTED insofar as this Court will
amend the 3/31/14 Order and will grant summary judgment in favor
of Defendants as to the portion of Count XXIV based on
Plaintiffs’ lack of access to kala (seaweed), ti shoots, pahu
(tree stump drum), ipu (gourd drum), ipu heke (double gourd
drum), `ohe kā`eke`eke (percussion instrument), and pūniu (small
knee drum).
B.
Free Exercise Claims
For the reasons discussed supra section II.A.,
Defendants’ Motion for Reconsideration is GRANTED IN PART AND
DENIED IN PART as to Count III (Plaintiffs’ federal free exercise
claim regarding lack of access to sacred items).
The Motion for
Reconsideration is DENIED as to the portion of Count III based on
Plaintiffs’ lack of daily access to personal amulets and `ohe
hano ihu (bamboo nose flute).
The Motion for Reconsideration is
GRANTED insofar as this Court will amend the 3/31/14 Order and
will grant summary judgment in favor of Defendants as to the
portion of Count III based on Plaintiffs’ lack of access to kala,
ti shoots, pahu, ipu, ipu heke, `ohe kā`eke`eke, and pūniu.
Similarly, for the reasons discussed supra section
II.A. and based on the analysis of state constitutional claims
for prospective declaratory and injunctive relief supra section
21
I., Defendants’ Motion for Reconsideration is GRANTED IN PART AND
DENIED IN PART as to Count XIII (Plaintiffs’ state free exercise
claim regarding lack of access to sacred items).
The Motion for
Reconsideration is DENIED as to the portion of Count XIII based
on Plaintiffs’ lack of daily access to personal amulets and
`ohe hano ihu.
The Motion for Reconsideration is GRANTED insofar
as this Court will amend the 3/31/14 Order and will grant summary
judgment in favor of Defendants as to the portion of Count XIII
based on Plaintiffs’ lack of access to kala, ti shoots, pahu,
ipu, ipu heke, `ohe kā`eke`eke, and pūniu.
C.
Equal Protection Claims
For the reasons discussed supra section II.A.,
Defendants’ Motion for Reconsideration is GRANTED IN PART AND
DENIED IN PART as to Count VIII (Plaintiffs’ federal equal
protection claim regarding lack of access to sacred items).
The
Motion for Reconsideration is DENIED as to the portion of
Count VIII based on Plaintiffs’ lack of daily access to personal
amulets and `ohe hano ihu.
The Motion for Reconsideration is
GRANTED insofar as this Court will amend the 3/31/14 Order and
will grant summary judgment in favor of Defendants as to the
portion of Count VIII based on Plaintiffs’ lack of access to
kala, ti shoots, pahu, ipu, ipu heke, `ohe kā`eke`eke, and pūniu.
Further, Defendants are correct that, in ruling on
Count VIII, this Court overlooked the portion of the claim
22
regarding `olena (yellow ginger).
The 3/31/14 Order acknowledged
that Defendants presented specific reasons why that item is
prohibited.
2014 WL 1321006, at *31 (“Warden Thomas stated that
ginger is prohibited because it can be used to ferment and
manufacture alcohol.” (citation and internal quotation marks
omitted)).
Further, Plaintiffs did not identify any evidence
that Defendants allow inmates of other religions to have access
to comparable items that could also be used to make alcohol.
This Court therefore concludes that Defendants are entitled to
reconsideration as the portion of Count VIII regarding `olena.
The Motion for Reconsideration is GRANTED insofar as this Court
will amend the 3/31/14 Order and will grant summary judgment in
favor of Defendants as to the portion of Count VIII based on
Plaintiffs’ lack of access to `olena.
In addition, Defendants argue that this Court erred in
denying summary judgment as to the portion of Count VIII based on
Plaintiffs’ lack of access to coconut oil.
Defendants
acknowledge that inmate practitioners of the Native Hawaiian
religion do not have access to coconut oil because of
difficulties identifying an approved vendor, but Muslims have
access to prayer oils.
Defendants, however, argue that this is
not enough for Plaintiffs’ claim to survive summary judgment
because Defendants are not required to give all prisoners
“‘identical treatment and resources,’” and there is no evidence
23
that Defendants intentionally discriminated against Plaintiffs.
[Mem. in Supp. of Motion for Reconsideration at 26 (quoting
Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123-24
(9th Cir. 2013), and citing Kaeo-Tomaselli v. Pi`ikoi Recovery
House for Women, No. CIV. 11-00670 LEK, 2011 WL 5572603, at *2
(D. Hawai`i Nov. 16, 2011)).]
This Court’s ruling did not offend the legal principles
that Defendants cite in the Motion for Reconsideration.
Viewing
the current record in the light most favorable to Plaintiffs, the
Muslim inmates’ prayer oils and the coconut oil for the inmate
practitioners of the Native Hawaiian religion pose the same
security issues, but Defendants readily provide prayer oils for
Muslim inmates while they have not been able to identify a vendor
of coconut oil for inmate practitioners of the Native Hawaiian
religion.
This Court reaffirms its finding in the 3/31/14 Order
that the current record raises a triable issue of fact as to
whether Defendants “acted with an intent or purpose to
discriminate against [Plaintiffs] based upon membership in a
protected class.”
See Kaeo-Tomaselli, 2011 WL 5572603, at *2
(citing Barren v. Harrington, 152 F.3d 1193, 1194–95 (9th Cir.
1998) (citing Washington v. Davis, 426 U.S. 229, 239–40 (1976))).
Defendants’ mere disagreement with this finding is not a
sufficient basis for reconsideration.
The Motion for
Reconsideration is therefore DENIED as to the portion of
24
Count VIII based on Plaintiffs’ lack of access to coconut oil.
Similarly, for the reasons this Court has stated
regarding Count VIII, and based on the analysis of state
constitutional claims for prospective declaratory and injunctive
relief set forth supra section I., Defendants’ Motion for
Reconsideration is GRANTED IN PART AND DENIED IN PART as to
Count XVIII (Plaintiffs’ state equal protection claim regarding
lack of access to sacred items).
The Motion for Reconsideration
is DENIED as to the portion of Count XVIII based on Plaintiffs’
lack of daily access to personal amulets, `ohe hano ihu, and
coconut oil.
The Motion for Reconsideration is GRANTED insofar
as this Court will amend the 3/31/14 Order and will grant summary
judgment in favor of Defendants as to the portion of Count XIII
based on Plaintiffs’ lack of access to kala, ti shoots, pahu,
ipu, ipu heke, `ohe kā`eke`eke, pūniu, and `olena.
III. Moot Claims
In the Motion for Reconsideration, Defendants argue
that this Court should have found that the following claims are
moot and granted them summary judgment: any claims for
prospective equitable relief regarding Red Rock; all claims for
prospective equitable relief by Plaintiff Poaha regarding
Saguaro; any claims for prospective equitable relief by
Plaintiffs Keawe, Kane, and Holbron regarding restricted housing
at Saguaro; and Plaintiff Galdones’s claims for prospective
25
equitable relief as to his ability to work in a prison job.
[Mem. in Supp. of Motion for Reconsideration at 27-28.]
First, the 3/31/14 Order did not address claims by
Plaintiffs Keawe and Kane regarding restricted housing.
Thus,
this Court DENIES Defendants’ Motion for Reconsideration as to
this issue.
As to each of the other claims that Defendants argue
are moot, this Court denied all pending motions for summary
judgment without prejudice because “[t]here is not enough
evidence in the current record for this Court to determine
whether or not there is a reasonable expectation that” the
conditions would recur.
See, e.g., 3/31/14 Order, 2014 WL
1321006, at *3 (regarding the possibility of Plaintiffs’ transfer
to Red Rock and the possibility of Plaintiff Poaha’s transfer
back to Saguaro).
Defendants argue that this Court should have
granted summary judgment in Defendants’ favor “because Plaintiffs
carry the burden of proof in establishing that a live controversy
exists at all stages of the proceeding, and the absence of
evidence requires dismissal of such claims.”
[Mem. in Supp. of
Motion for Reconsideration (emphasis omitted) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561 (1992)).]
The 3/31/14 Order acknowledged that Defendants
submitted evidence that “the Hawai`i inmates who were
incarcerated at Red Rock have been ‘permanently’ transferred to
26
Saguaro.”
2014 WL 1321006, at *3 (footnote and citation
omitted).
Plaintiffs have not identified any contrary evidence
which indicates a possibility that they may be transferred back
to Red Rock.
This Court therefore agrees with Defendants that
there are no genuine issues of material fact as to Plaintiffs’
claims for prospective equitable relief regarding Red Rock.
Defendants are entitled to judgment as a matter of law that those
claims are moot.
Similarly, Plaintiffs could have presented evidence
regarding the circumstances of Plaintiff Poaha’s transfer from
Saguaro to Halawa Correctional Facility, if the circumstances of
the transfer indicate that there is a reasonable expectation that
he may be transferred back to Saguaro.
so.
Plaintiffs have not done
In fact, in arguing that he should remain a party because he
has a personal stake in class certification, Plaintiffs argue
that Plaintiff Poaha “was very concerned about the daily group
worship practice.”
at 25 n.18.]
[Mem. in Opp. to Motion for Reconsideration
Plaintiffs have not identified any evidence which
indicates a possibility that Plaintiff Poaha may be transferred
back to Saguaro.
This Court therefore agrees with Defendants
that there are no genuine issues of material fact as to Plaintiff
Poaha’s claims for prospective equitable relief regarding
Saguaro.
Defendants are entitled to judgment as a matter of law
that those claims are moot.
27
This Court GRANTS Defendants’ Motion for
Reconsideration as to Plaintiffs’ claims for prospective
equitable relief regarding Red Rock and as to Plaintiff Poaha’s
claims for prospective equitable relief regarding Saguaro.
This
Court will amend the 3/31/14 Order to grant summary judgment in
favor of Defendants as to those claims.8
In the 3/31/14 Order, this Court implicitly found that,
viewing the current record in the light most favorable to
Plaintiffs, there are genuine issues of material fact as to the
issue of whether Plaintiff Holbron has a reasonable expectation
of being placed in restricted housing in the future and as to the
issue of whether Plaintiff Galdones may face retaliation in the
future.
Defendants’ Motion for Reconsideration does not point to
any evidence in the record that requires this Court to reconsider
that finding.
This Court therefore DENIES Defendants’ Motion for
Reconsideration as to their argument that Plaintiff Holbron’s
claims for prospective equitable relief regarding restricted
housing and Plaintiff Galdones’s claims for prospective equitable
relief regarding his state law retaliation claim are moot.
8
This Court emphasizes that this ruling does not mean that
Plaintiff Poaha is dismissed from this case. This Court has not
yet ruled on whether Plaintiffs, including Plaintiff Poaha, can
pursue their claims for damages and other retrospective relief.
28
IV.
Arguments that this Court Allegedly Overlooked
Finally, Defendants argue that the 3/31/14 Order failed
to address the following arguments that they raised in their
Motion for Summary Judgment: Defendant Sakai is entitled to
summary judgment because he did not participate in the decisionmaking regarding the religious programming at issue in this case;
Plaintiff Galdones’s state law retaliation claim fails as a
matter of law and, even if he has a viable claim, his request for
punitive damages is meritless; Plaintiffs’ state constitutional
claims fail because Hawai`i law does not recognize a private
right of action for violations of the Hawai`i State constitution;
and Defendants are entitled to summary judgment as to Count XXI,
Plaintiffs’ claim based on Article XII, § 7 of the Hawai`i State
Constitution and Haw. Rev. Stat. § 1-1.
for Reconsideration at 28-29.]
[Mem. in Supp. of Motion
This Court has already addressed
Defendants’ argument regarding the claims for violation of the
Hawai`i State Constitution.
See supra section I.
As to Defendants’ argument that this Court should have
granted summary judgment in favor of Defendant Sakai, this Court
reiterates that the scope of the 3/31/14 Order was “limited to
Plaintiffs’ claims seeking prospective declaratory and injunctive
relief.”
2014 WL 1321006, at *3.
In ruling on Defendant Neil
Abercrombie’s Motion for Judgment on the Pleadings, [filed 6/7/13
(dkt. no. 322),] this Court stated:
29
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”).
Davis v. Abercrombie, Civil No. 11–00144 LEK–BMK, 2013 WL 5204982
(“9/13/13 Order”), at *14 (D. Hawai`i Sept. 13, 2013)
(alterations in Davis) (emphasis added).
In the 9/13/13 Order,
this Court found that “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.”
Id.
Defendants did not seek reconsideration of the 9/13/13 Order.
Insofar as the 3/31/14 Order was limited to Plaintiffs’
claims seeking prospective declaratory and injunctive relief, and
this Court found in the 9/13/13 Order that Defendant Sakai is the
proper defendant in Plaintiffs’ claims for prospective equitable
30
relief, Defendant Sakai was not entitled to summary judgment,
even if he did not participate in the decision-making regarding
the religious programming at issue in this case.
Defendants’
Motion for Reconsideration is DENIED as to Defendant Sakai.
Defendants argue that this Court should have granted
summary judgment in their favor as to Plaintiff Galdones’s state
law retaliation claim or, at a minimum, on his claim of
entitlement to punitive damages.
Insofar as the 3/31/14 Order
was limited to Plaintiffs’ claims for prospective equitable
relief, and this Court ruled that there were genuine issues of
material fact as to whether Plaintiff Galdones’s request for
prospective equitable relief was moot, this Court did not reach
the merits of his state law retaliation claim.
This Court
therefore DENIES Defendants’ Motion for Reconsideration as to
Plaintiff Galdones’s state law retaliation claim.
Defendants may
raise their arguments regarding that claim in a future motion.
Finally, this Court did not overlook Count XXI in the
3/31/14 Order.
prejudice.
This Court has already dismissed that claim with
9/13/13 Order, 2013 WL 5204982, at *23.
This Court
therefore DENIES Defendants’ Motion for Reconsideration as to
Count XXI.
V.
Request for Certification of Interlocutory Appeal
Defendants argue that, unless this Court grants
reconsideration and grants summary judgment in favor of
31
Defendants on all of the claims addressed in the Motion for
Reconsideration, this Court should certify the 3/31/14 Order for
interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
Section
1292(b) states:
When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves a controlling question of law as to which
there is substantial ground for difference of
opinion and that an immediate appeal from the
order may materially advance the ultimate
termination of the litigation, he shall so state
in writing in such order. The Court of Appeals
which would have jurisdiction of an appeal of such
action may thereupon, in its discretion, permit an
appeal to be taken from such order, if application
is made to it within ten days after the entry of
the order: Provided, however, That application for
an appeal hereunder shall not stay proceedings in
the district court unless the district judge or
the Court of Appeals or a judge thereof shall so
order.
(Emphasis in original.)
This Court has described the standard applicable to a
motion for leave to file an interlocutory appeal as follows:
A movant seeking an interlocutory appeal has a
heavy burden to show that “exceptional
circumstances justify a departure from the basic
policy of postponing appellate review until after
the entry of a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 475, 98 S. Ct. 2454, 57
L. Ed. 2d 351 (1978); see also James v. Price
Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th
Cir. 2002) (“Section 1292(b) is a departure from
the normal rule that only final judgments are
appealable, and therefore must be construed
narrowly.”); Pac. Union Conference of Seventh–Day
Adventists v. Marshall, 434 U.S. 1305, 1309, 98 S.
Ct. 2, 54 L. Ed. 2d 17 (1977) (“The policy against
piecemeal interlocutory review other than as
32
provided for by statutorily authorized appeals is
a strong one.” (citations omitted)). Indeed,
§ 1292(b) is used “only in exceptional situations
in which allowing an interlocutory appeal would
avoid protracted and expensive litigation.” In re
Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th
Cir. 1982) (citing U.S. Rubber Co. v. Wright, 359
F.2d 784, 785 (9th Cir. 1966) (per curiam)).
Hawaii ex rel. Louie v. JP Morgan Chase & Co., Civil Nos.
12–00263 LEK–KSC etc., 2013 WL 391024, at *3–4 (D. Hawai`i
Jan. 29, 2013) (quoting Leite v. Crane Co., Civil No. 11–00636
JMS/RLP, 2012 WL 1982535, at *2 (D. Hawai`i May 31, 2012)).
The instant case is not an exceptional case which
warrants an interlocutory appeal.
Even assuming, arguendo, that
this Court’s rulings that are adverse to Defendants involve
“controlling question[s] of law as to which there is substantial
ground for difference of opinion[,]” an interlocutory appeal of
the 3/31/14 Order (after this Court amends it pursuant to this
order) would not materially advance the ultimate termination of
the litigation.
Defendants seek to appeal rulings denying
summary judgment in their favor, but this Court denied summary
judgment as to those claims because this Court has found that
there are genuine issues of fact that are material to the
ultimate determination of those claims.
An interlocutory appeal
would not resolve the issues of fact and would substantially
delay this case, which has already been pending for more than
three years.
This court therefore DENIES Defendants’ request for
certification of the 3/31/14 Order (after amendment) for
33
interlocutory appeal.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Partial Reconsideration of Order on Defendants’ Motions for
Summary Judgment (Doc. 497), filed April 14, 2014, is HEREBY
GRANTED IN PART AND DENIED IN PART.
This Court will amend its
Order Granting in Part and Denying in Part Defendants’ Motion for
Summary Judgment; Granting in Part and Denying in Part Plaintiff
Robert Holbron’s Counter-Motion for Summary Judgment on His
Claims; and Granting in Part and Denying in Part Plaintiffs’
Motion for Partial Summary Judgment Against Defendants as to
Their Claims under the Religious Land Use and Institutionalized
Persons Act, [filed 3/31/14 (dkt. no. 497),] to grant summary
judgment in favor of Defendants on the claims as to which this
Court granted reconsideration in the instant order.
In addition, this Court DENIES Defendants’ alternate
request for leave to take an interlocutory appeal from the
amended version of the 3/31/14 Order.
IT IS SO ORDERED.
34
DATED AT HONOLULU, HAWAII, June 2, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL; CIVIL
11-00144 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR PARTIAL RECONSIDERATION OF ORDER ON
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (DOC. 497)
35
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