Davis et al v. Abercrombie et al
Filing
544
AMENDED 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 re 529 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/13/2014. -- Defendants' Motion for Summary Judgment, filed July 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART, Plaintiffs' Motion for Partial Summary Judgment Against Defendants as to Their Claims Under the Religious Land U se and Institutionalized Persons Act, filed October 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART,and Plaintiff Robert Holbron's Counter-Motion for Summary Judgment on His Claims, filed December 23, 2013, is HEREBY DENIED WITHOUT PREJU DICE. -- The motions are DENIED WITHOUT PREJUDICE as to: 1) any claims seeking damages and any claims seeking retrospective equitable relief; 2) Plaintiff Holbron's claims seeking prospective declaratory and injunctive relief regardin g restricted custody at Saguaro; and 3) Plaintiff Galdones's request for prospective declaratory and injunctive relief as to his state law retaliation claim. --This Court set forth all of its rulings regarding Plaintiffs' Motion supra Discussion section II.F, and this Court set forth all of its rulings regarding Defendants' Motion supra Discussion section III.F. (eps)CERTIFICATE OF SERVICEParticipants re gistered 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
AMENDED 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
On July 31, 2013, 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
or Summary Judgment (“Defendants’ Motion”).1
[Dkt. no. 361.]
Plaintiffs Richard Kapela Davis, Tyrone Galdones, Michael Hughes,
Damien Kaahu, James Kane, III, Ellington Keawe, and Kalai Poaha
(collectively “the Joint Plaintiffs”) filed their memorandum in
opposition on January 7, 2014.2
[Dkt. no. 465.]
Plaintiff
Robert A. Holbron (“Plaintiff Holbron”) filed a joint memorandum
in opposition to Defendants’ Motion and a Counter-Motion for
Summary Judgment on His Claims (“Holbron’s Counter-Motion”) on
December 23, 2013.
[Dkt. no. 452.]
Defendants filed their reply
in support of Defendants’ Motion (“Defendants’ Reply”), and their
memorandum in opposition to Holbron’s Counter-Motion (“Counter-
1
Defendant Neil Abercrombie, in his official capacity as
the Governor of the State of Hawai`i (“Defendant Abercrombie”),
was also one of the moving defendants, but after the filing of
Defendants’ Motion, this Court granted his motion for judgment on
the pleadings, and dismissed all claims against him with
prejudice. [Motion for Judgment on the Pleadings, filed 6/7/13
(dkt. no. 322); Order Granting Defendant Neil Abercrombie’s
Motion for Judgment on the Pleadings, filed 9/13/13 (dkt. no.
390) (“9/13/13 Order”).] The 9/13/13 Order is also available as
Davis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2013 WL 5204982
(D. Hawai`i Sept. 13, 2013). Thus, “Defendants” in this order
refers to only Defendant Sakai and CCA.
2
On January 6, 2014, Huy filed an amicus curiae brief in
support of the Joint Plaintiffs’ opposition to Defendants’ Motion
(“Amicus Brief”). [Dkt. no. 463.] “Huy is a nationally
recognized, 501(c)(3) non-profit organization . . . which seeks
to enhance religious, cultural, and other rehabilitative
opportunities for imprisoned Indigenous People, including
American Indians and Native Hawaiians.” [Motion for Leave to
File Amicus Curiae Brief in Supp. of Pltfs.’ Opp. to Summary
Judgment, filed 12/20/13 (dkt. no. 439), at 1.] Defendants filed
their memorandum in opposition to the Amicus Brief on
January 13, 2014. [Dkt. no. 475.]
2
Motion Opposition”) on January 13, 2014.
[Dkt. nos. 483, 482.]
Plaintiff Holbron filed his reply in support of his CounterMotion (“Holbron’s Reply”) on January 17, 2014.
[Dkt. no. 489.]
On October 31, 2013, the Joint Plaintiffs and Plaintiff
Holbron (all collectively, “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”).
[Dkt. no. 417.]
Defendants filed their
memorandum in opposition on December 23, 2013, and Plaintiffs
filed their reply (“Plaintiffs’ Reply”) on January 13, 2014.
[Dkt. nos. 441, 476.]
These matters came on for hearing on January 27, 2014.
Appearing on behalf of Defendants were David Lewis, Esq., and
Jodie Roeca, Esq., and appearing on behalf of Plaintiffs were
Sharla Manley, Esq., and Leina`ala Ley, Esq.
After careful
consideration of the motions, supporting and opposing memoranda,
and the arguments of counsel, Defendants’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART, Plaintiffs’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART, and Holbron’s Counter-Motion
is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set
forth below.3
3
This Court issued the original order on March 31, 2014,
[dkt. no. 497,] and now amends the original order pursuant to the
June 2, 2014 order granting in part and denying in part
Defendants’ motion for reconsideration of the March 31, 2014
(continued...)
3
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.]
Plaintiffs are all Hawai`i residents who were convicted
and sentenced for committing criminal violations of Hawai`i law.
The Second Amended Complaint alleges that, during all periods
relevant to the instant case, they were incarcerated at either
Saguaro Correctional Center (“Saguaro”) or Red Rock Correctional
Center (“Red Rock”).4
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),
3
(...continued)
order (“Motion for Reconsideration”).
Reconsideration), 529 (order).]
4
[Dkt. nos. 500 (Motion for
As of May 30, 2013, the Hawai`i inmates who were assigned
to Red Rock were permanently transferred to Saguaro. [Defs.’
Motion, Concise Statement of Facts in Supp. of Defs.’ Motion
(“Defs.’ CSOF”), Decl. of Warden Thomas (“Thomas Decl.”) at ¶ 5;
id., Decl. of Warden Stolc (“Stolc Decl.”) at ¶ 5.]
4
17-18.]
In the instant case, Plaintiffs allege that Defendants
have prohibited them from exercising their constitutional and
statutory right to practice their faith.
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 Makahiki5 (“Count II”),
access to sacred items (“Count III”), access to sacred space
(“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”);
5
Plaintiffs allege that “[t]he 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.]
5
•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”);
•Violation 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 Supplemental Complaint states that Plaintiff
Galdones “hereby joins in and asserts COUNTS I through XXVI of
the Amended Complaint[6] on his own behalf and on behalf of all
those similarly situated.”
[Supplemental Complaint at ¶ 124.]
The Supplemental Complaint also asserted an additional claim
alleging that Defendants retaliated against him, in violation of
both federal law and state law.
[Id. at ¶¶ 125-37.]
This Court
dismissed Galdones’s retaliation claim under federal law 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) (“4/11/13
Order”), at 28-29.7]
Thus, Plaintiff Galdones’s only remaining
claims are his state law retaliation claim and the claims that
are asserted in the Second Amended Complaint.
Plaintiff
6
Plaintiffs’ Amended Complaint for Damages and for
Classwide Declaratory and Injunctive Relief, [filed 11/14/11
(dkt. no. 42),] alleged the same twenty-six claims that
Plaintiffs allege in the Second Amended Complaint.
7
The 4/11/13 Order is available at 2013 WL 1568425.
6
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.
[Second Amended Complaint at ¶¶ 23-24.]
On September 13, 2013, this Court dismissed Count XXI
with prejudice as to all Defendants.
9/13/13 Order, 2013 WL
5204982, at *22.
Plaintiffs’ Motion seeks partial summary judgment on
the limited issue of whether they have established, for purposes
of their RLUIPA claims, that the following activities at issue in
this case are “religious exercises” for purposes of RLUIPA:
“(1) daily outdoor congregational meetings; (2) the establishment
of a modest outdoor sacred altar; (3) access to sacred garments
and sacred items; (4) participation in religious services
observing the Opening and Closing of the Makahiki Season; and
(5) regular and frequent meetings with a spiritual advisor.”
[Mem. in Supp. of Pltfs.’ Motion at 1.]
Defendants’ Motion seeks summary judgment in their
favor as to all of Plaintiffs’ claims, and Holbron’s CounterMotion seeks summary judgment in his favor as to all of his
claims.
7
DISCUSSION
I.
Scope of this Order and Order to File
Motion Regarding Claims Seeking Damages
The scope of this order is limited to Plaintiffs’
claims seeking prospective declaratory and injunctive relief.
In
light of the analysis in Discussion section II of the 9/13/13
Order, this Court DIRECTS Defendants to file a motion for summary
judgment addressing: 1) whether sovereign immunity and the
42 U.S.C. § 1983 definition of a “person” precludes Plaintiffs’
claims seeking either damages or retrospective equitable relief
against Defendant Sakai; and 2) whether CCA stands in the shoes
of DPS for purposes of the sovereign immunity analysis and the
§ 1983 “person” analysis.
May 13, 2014.
Defendants shall file their motion by
This Court cautions Defendants that, insofar as
sovereign immunity may be considered an affirmative defense, see
In re Bliemeister, 296 F.3d 858, 861 (9th Cir. 2002), if they
fail to file the motion by May 13, 2014, this Court will deem the
sovereign immunity defense waived.8
To the extent that any of
the pending motions seek summary judgment as to any claims
seeking damages or any claims seeking retrospective equitable
relief, the motions are DENIED WITHOUT PREJUDICE.
8
This Court notes that Defendants filed their Motion for
Summary Judgment Re: Sovereign Immunity/Damages on May 13, 2014.
[Dkt. no. 519.] The motion is set for hearing on July 7, 2014.
8
A.
Alleged Violations of the Hawai`i State Constitution
As previously stated, Counts XI through XX allege
violations of the Hawai`i State Constitution.
Defendants’ Motion
contends that “such legal claims are not cognizable by private
parties directly under the state constitution.”
[Mem. in Supp.
of Defs.’ Motion 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 of action for damages
for deprivation of rights under the state’s constitution or
laws.”))).]
Insofar as this argument focuses on Plaintiffs’
claims for damages for violations of the state constitution, it
is irrelevant to the instant order, which is limited to
Plaintiffs’ claims for prospective equitable relief.
Defendants
have not identified any case law, nor is this Court aware of any,
that precludes Plaintiffs from bringing claims for prospective
equitable relief for violations of the state constitution.
this Court DENIES Defendants’ Motion as to that issue.
9
Thus,
B.
Whether Defendant Sakai is Entitled to Summary Judgment
Defendants’ Motion argues that Defendant Sakai is
entitled to summary judgment because he did not participate in
the decision-making process regarding the religious programming
at issue in this case.
Insofar as this order is limited to
Plaintiffs’ claims seeking prospective equitable relief,
Defendant Sakai’s involvement, or lack thereof, in those
decisions is irrelevant.
In the 9/13/13 Order, this Court
stated:
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”).
2013 WL 5204982, at *14 (alteration in 9/13/13 Order) (emphasis
added).
This Court also found that “if Plaintiffs prevail in
this case, it is Defendant Sakai (as DPS director) who has the
10
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 instant order is 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 for those claims, Defendant Sakai is not
entitled to summary judgment, even if he did not participate in
the decision-making regarding the religious programming at issue
in this case.
This Court therefore DENIES Defendants’ Motion as
to Plaintiffs’ claims for prospective equitable relief against
Defendant Sakai.
C.
Out-of-Facility Transfers
Defendants submitted evidence that “the Hawai`i inmates
who were incarcerated at Red Rock have been ‘permanently’
transferred to Saguaro.”9
[Defs.’ Reply, Decl. of Warden Thomas
(“Thomas Reply Decl.”) at ¶ 5.]
If there is no reasonable
expectation of Plaintiffs’ transfer to Red Rock, their respective
claims seeking prospective declaratory and injunctive relief
regarding Red Rock will be moot.
9
See Johnson v. Moore, 948 F.2d
In this order, this Court will only address religious
policies/customs at Red Rock either in the context of what
alternatives may be available at Saguaro or as examples of the
types of burdens that Plaintiffs allege they experience as a
result of Defendants’ restrictions on their religious activities.
11
517, 519 (9th Cir. 1991).
Plaintiffs have not identified any
evidence which indicates that there is a genuine issue of
material fact as to the existence of a reasonable expectation
that any of them may be transferred to Red Rock.
Even viewing
the current record in the light most favorable to Plaintiffs, see
Crowley v. Bannister, 734 F.3d 967, 976 (9th Cir. 2013), this
Court finds that there are no genuine issues of material fact as
to Plaintiffs’ claims for prospective equitable relief regarding
Red Rock.
This Court therefore concludes that Defendants are
entitled to judgment as a matter of law because those claims are
moot.
See Fed. R. Civ. P. 56(a).
Defendants’ Motion is GRANTED,
and Plaintiffs’ Motion is DENIED, as to all of Plaintiffs’ claims
seeking prospective equitable relief regarding Red Rock.
Defendants also presented evidence that Plaintiff Poaha
is no longer incarcerated at either Saguaro or Red Rock.
[Thomas
Reply Decl. at ¶ 9 (“All Plaintiffs are currently incarcerated at
[Saguaro], with the exception of inmate Poaha who transferred out
of [Saguaro] to Halawa Correctional Facility [(“Halawa”)] on
January 15, 2013.”).]
Plaintiffs could have presented evidence
regarding the circumstances of Plaintiff Poaha’s transfer from
Saguaro to Halawa, if the circumstances of the transfer raise a
triable issue of fact as to the existence of a reasonable
expectation that he may be transferred back to Saguaro.
Plaintiffs have not done so.
In fact, in arguing that he should
12
remain a party in this case because he has a personal stake in
class certification, Plaintiffs argue that Plaintiff Poaha “was
very concerned about the daily group worship practice.”
[Mem. in
Opp. to Motion for Reconsideration, filed on 4/28/14 (dkt. no.
511), at 25 n.18.]
Even construing the record in the light most
favorable to Plaintiffs, this Court must find that they have not
identified any evidence which raises a triable issue of fact as
to whether there is a reasonable expectation that Plaintiff Poaha
may be transferred back to Saguaro.
Defendants’ Motion is
GRANTED, and Plaintiffs’ Motion is DENIED, as to all of
Plaintiff Poaha’s claims seeking prospective equitable relief.10
D.
Plaintiff Holbron
Holbron’s Counter-Motion addresses his claims that are
unique from the other Plaintiffs’ claims because of Holbron’s
security status.
To the extent that Plaintiff Holbron’s claims
are the same as the other Plaintiffs’ claims, he joined in the
Joint Plaintiffs’ memorandum in opposition to Defendants’ Motion.
[Holbron’s Counter-Motion at 2 n.2.]
At Saguaro, Plaintiff Holbron was in administrative
segregation until he moved to the Special Housing Incentive
Program (“SHIP”), which has three levels, known as SHIP I,
SHIP II, and SHIP III.
SHIP I is the most restrictive, and
10
Plaintiff Poaha’s claims for damages and other
retrospective relief remain.
13
SHIP III is the least restrictive.
He was in SHIP from
approximately April 2009 until February 2012.
[Holbron Decl. at
¶¶ 8-17; Joint Pltfs.’ Responsive CSOF, Decl. of Sharla Manley
(“Manley Responsive Decl.”),11 Exh. 6, filed 12/23/13 (dkt. no.
485) (sealed exhibit - SHIP policies).]
Plaintiff Holbron
voluntarily chose to remain in SHIP from some time in Fall 2010
until February 1, 2012.
[Thomas Reply Decl. at ¶ 27; Counter-
Motion Opp., Decl. of David C. Lewis, Exh. 3 (agreement regarding
Plaintiff Holbron’s status as a SHIP III Permanent Porter).]
Thus, Plaintiff Holbron is apparently no longer in any form of
restricted housing at Saguaro.
Viewing the current record in the
light most favorable to Plaintiff Holbron, this Court finds that
there are genuine issues of material fact as to the existence of
a reasonable expectation that he may be placed in a form of
restricted custody at Saguaro in the future.
If this Court
ultimately finds that there is no reasonable expectation of such
placement, Plaintiff Holbron’s claims seeking prospective
declaratory and injunctive relief regarding restricted custody at
Saguaro will be moot.
This Court therefore DENIES the pending
motions WITHOUT PREJUDICE to the extent that they seek summary
judgment as to Plaintiff Holbron’s claims seeking prospective
declaratory and injunctive relief regarding restricted custody at
11
The exhibits to the Manley Responsive Declaration are
included in docket numbers 466 through 470.
14
Saguaro.
Plaintiff Holbron’s remaining claims seeking
prospective declaratory and injunctive relief are the same as the
other Plaintiffs’ claims.
E.
Plaintiff Galdones’s State Law Retaliation Claim
In addition to his claims alleged in the Second Amended
Complaint, Plaintiff Galdones has a pending state law retaliation
claim, as alleged in the Supplemental Complaint.
Plaintiff
Galdones alleges that Defendants retaliated against him for
“exercis[ing his] First Amendment rights to file prison
grievances, otherwise seek access to the courts, and practice
[his] religion.”
[Suppl. Complaint at ¶ 131.]
Plaintiff
Galdones alleges that he was charged with violations of Saguaro
inmate policies based on an incident in the Native Hawaiian
culture class on or about April 25, 2012.
As a result of the
charges, Plaintiff Galdones was placed in disciplinary
segregation from about April 2012 to June 2012.
90-91, 93.]
[Id. at ¶¶ 40,
He alleges that the charges were a form of
retaliation for his “attempt[] to ensure that appropriate
protocols were followed during the Hawaiian class” and his
“attempt to practice Native Hawaiian religious activities” in
connection with the class.
[Id. at ¶¶ 90-91.]
15
The Galdones Declaration, which Plaintiff Galdones
signed on October 28, 2013, states that he is in the general
inmate population at Saguaro.
[Joint Pltfs.’ Amended Separate
Concise Statement of Facts in Opp. to Defs.’ Motion, filed 1/6/14
(dkt. no. 466) (“Joint Pltfs.’ Responsive CSOF”), Decl. of
Tyrone Galdones (“Galdones Decl.”) at ¶ 64.]
Thus, he is no
longer in disciplinary segregation as a result of the alleged
retaliation.
The Supplemental Complaint also alleges that:
117. The charges against GALDONES will harm
him even after he returns to general population.
As a result of those charges, GALDONES will be
barred from working for six months. Prior to the
wrongful charges, GALDONES worked as a porter and
earned wages that he used for hygiene items.
118. As a result of Defendants’ wrongful
charges against him, GALDONES will be barred from
participating in hobby shop where he crafts
objects that have cultural significance to him as
a Native Hawaiian and that he sends to his family
in Hawaii.
119. As a result of Defendants’ wrongful
charges against him, Plaintiff GALDONES will be
restricted in the amount of participation he can
engage in as a member of the Hawaiian classes
offered by Defendants at Saguaro.
[Suppl. Complaint at ¶¶ 117-19 (bold emphasis added).]
Plaintiffs filed the Supplemental Complaint on August 22, 2012,
when Plaintiff Galdones was apparently still experiencing the
effects of the alleged retaliation.
Based on the allegations in
paragraph 117, the ban from working as a result of the charges is
clearly over.
The Supplemental Complaint does not specify a
16
duration of the hobby shop ban or the restriction on Plaintiff
Galdones’s participation in the Native Hawaiian classes.
The
Galdones Declaration, however, does not state that Plaintiff
Galdones was subject to these restrictions when he signed the
declaration.
The declaration discusses the classes, but states
only that Saguaro forces him to choose between either a hula
class or a chants/rituals class and that there is often not
enough room in the classes to accommodate all inmates who want to
participate.
[Galdones Decl. at ¶¶ 30-31.]
Thus, there is no
evidence that Plaintiff Galdones is currently experiencing the
effects of the alleged retaliation.
Viewing the current record
in the light most favorable to Plaintiff Galdones, this Court
finds that there are genuine issues of material fact as to the
existence of a reasonable expectation of either being retaliated
against in the future or suffering further effects of the alleged
retaliation for the April 2012 incident.
If this Court
ultimately finds that there is no reasonable expectation either
of such retaliation or further effects of the previous
retaliation, Plaintiff Galdones’s request for prospective
declaratory and injunctive relief as to his state law retaliation
claim will be moot.
This Court therefore DENIES Defendants’
Motion and Plaintiffs’ Motion WITHOUT PREJUDICE to the extent
that they seek summary judgment as to Plaintiff Galdones’s
request for prospective declaratory and injunctive relief as to
17
his state law retaliation claim.12
Plaintiff Galdones’s
remaining claims seeking prospective declaratory and injunctive
relief are the same as the other Plaintiffs’ claims.
This Court now turns to the merits of the two motions
that are within the scope of this order.
II.
Plaintiffs’ Motion
RLUIPA “protects institutionalized persons who are
unable freely to attend to their religious needs and are
therefore dependent on the government’s permission and
accommodation for exercise of their religion.”
Wilkinson, 544 U.S. 709, 721 (2005).
Cutter v.
RLUIPA provides that:
No government shall impose a substantial burden on
the religious exercise of a person residing in or
confined to an institution, as defined in section
1997 of this title, even if the burden results
from a rule of general applicability, unless the
government demonstrates that imposition of the
burden on that person-(1) is in furtherance of a compelling
governmental interest; and
(2) is the least restrictive means of
furthering that compelling governmental
interest.
42 U.S.C. § 2000cc-1(a).
12
This Court emphasizes that, in light of the scope of the
instant order and this Court’s rulings as to Plaintiff Galdones’s
request for prospective equitable relief regarding his state law
retaliation claim, this Court does not reach the merits of that
claim.
18
If a plaintiff produces prima facie evidence to
support a claim alleging a violation of the Free
Exercise Clause or a violation of section 2000cc
of this title, the government shall bear the
burden of persuasion on any element of the claim,
except that the plaintiff shall bear the burden of
persuasion on whether the law (including a
regulation) or government practice that is
challenged by the claim substantially burdens the
plaintiff’s exercise of religion.
42 U.S.C. § 2000cc-2(b).
Plaintiffs argue that there is no genuine issue of
material fact as to the issue of whether the practices identified
in the Second Amended Complaint are religious exercises for
purposes of RLUIPA.
RLUIPA defines “religious exercise” as
follows:
(A) In general
The term “religious exercise” includes any
exercise of religion, whether or not compelled by,
or central to, a system of religious belief.
(B) Rule
The use, building, or conversion of real property
for the purpose of religious exercise shall be
considered to be religious exercise of the person
or entity that uses or intends to use the property
for that purpose.
42 U.S.C. § 2000cc–5(7).
In other words, RLUIPA “bars inquiry
into whether a particular belief or practice is ‘central’ to a
prisoner’s religion.”
Cutter v. Wilkinson, 544 U.S. 709, 725
n.13 (2005) (emphasis added).
The United States Supreme Court in
Cutter also noted that “[t]he ‘exercise of religion’ often
involves not only belief and profession but the performance
19
of . . . physical acts [such as] assembling with others for a
worship service [or] participating in sacramental use of bread
and wine . . . .”
Id. at 720 (some alterations in original)
(citation and quotation marks omitted).
Similar to the analysis of First Amendment claims, in
evaluating RLUIPA claims, courts “may not inquire into the
‘truth, validity, or reasonableness’ of [the p]laintiff’s
religious need to” engage in the practice at issue in the case,
but the court may inquire into whether the plaintiff “is
insincere about the religious nature of his desire to” engage in
the practice.
Chernetsky v. Nevada, No. 3:06-CV-00252-RCJ, 2014
WL 910355, at *1 (D. Nev. Mar. 7, 2014) (citing Callahan v.
Woods, 658 F.2d 679, 685 (9th Cir. 1981)); see also Johnson v.
Nev. ex rel. Bd. of Prison Comm’rs, No. 3:11–cv–00487–HDM–VPC,
2013 WL 5428423, at *4 (D. Nev. Sept. 26, 2013) (“Similar to
First Amendment jurisprudence, RLUIPA ‘. . . does not preclude
inquiry into the sincerity of a prisoner’s professed
religiosity.’” (quoting Cutter, 544 U.S. at 725 n. 13)).
In
Callahan, the Ninth Circuit noted that, “‘[a] religious belief
can appear to every other member of the human race preposterous,
yet merit the protections of the Bill of Rights,’” 658 F.3d at
685 (quoting Stevens v. Berger, 428 F. Supp. 896, 899 (E.D.N.Y.
1977)), and “if the free exercise right were dependent on one’s
ability to establish the truth of one’s beliefs, then the First
20
Amendment guarantees might be rendered illusory,” id. (citing
United States v. Ballard, 322 U.S. 78, 87, 64 S. Ct. 882, 886, 88
L. Ed. 1148 (1944)).
A.
Daily, Outdoor, Group Worship Gatherings
“Religious exercise” “encompasses not only ‘belief and
profession,’ but also involves physical acts, such as communal
worship and participation in sacred rituals.”
Brown v. Alden,
No. CV–09–05089–CI, 2011 WL 5520429, at *7 (E.D. Wash. Oct. 13,
2011) (citing Cutter v. Wilkenson, 544 U.S. 709, 720, 125 S. Ct.
2113, 161 L. Ed. 2d 1020 (2005)).
It is well established that,
for purposes of RLUIPA, “group worship within the prison context
is protected religious exercise.”
Id. (footnote omitted) (citing
Cutter, 544 U.S. at 720; Greene v. Solano Cnty. Jail, 513 F.3d
982, 987-88 (9th Cir. 2008); McCabe v. Arave, 827 F.2d 634, 637
(9th Cir. 1987)).
Plaintiffs rely heavily upon the July 16, 2012 report
of Plaintiffs’ expert, Ty Preston Kāwika Tengan, Ph.D. (“the
Tengan Report”),13 as support for Plaintiffs’ Motion.
The Tengan
13
The Tengan Report is attached to Plaintiffs’ Concise
Statement of Facts in Support of Their Motion (“Plaintiffs’
CSOF”) as Exhibit 1 to the Declaration of
Ty Preston Kāwika Tengan. [Filed 10/31/13 (dkt. no. 418-2).]
Dr. Tengan is “a practitioner and a scholar of Native
Hawaiian culture and religious practices” and he is fluent in the
Hawaiian language. [Id. at ¶ 3.] He received his doctorate from
the Department of Anthropology at the University of Hawai`i at
Mānoa in 2003, and he is an Associate Professor of ethnic studies
(continued...)
21
Report states, inter alia:
8.
In general, Native Hawaiian spiritual
tenets and beliefs are manifested in the
observance of certain rituals and other activities
to acknowledge aumākua and akua (deities),
ancestors, and are also expressed and perpetuated
in the very essence of a people and their
relationship to each other and to their kulāiwi
(native land).
9.
Native Hawaiians continue to recognize
that they are related to elements of nature - to
the land, to the ocean, to the wind, to the rain.
Nature is the domain of both ancestral spirits and
Hawaiian deities . . . .
10. One of the primary concepts in Native
Hawaiian religion holds that all persons, places,
plants, and animals are imbued with mana, which
loosely translated means spiritual power.
. . . .
18. Because traditional Native Hawaiian
prayer, chant, dance and protocol are passed down
from generation to generation by aural, visual,
and kinesthetic means, it is vitally important
that participants in Hawaiian religious activities
meet regularly to practice appropriate prayer,
chant, dance, and religious protocol. . . .
19. . . . [S]uch prayers, chants, hula, and
protocol cannot be learned from a book, but must
be learned from a kupuna, kahu, kumu (respected
elder or teacher) or others to whom the prayers,
chants, hula, and protocol have been personally
transmitted.
20. Thus, Native Hawaiian religious practice
includes not only individual prayer and chant, but
13
(...continued)
and anthropology. [Id. at ¶¶ 4-5.]
He has “dedicated [his]
academic career to the study of Native Hawaiian culture and
religion.” [Id. at ¶ 6.]
22
also group prayer, chant, hula, and other
activities that are essential to expressing
religious belief and faith that increase the
spiritual power - mana - of the individual and
group.
21. In general, the more participants in a
specific spiritual activity who are performing
pono (righteous) activities, the more positive
mana [sic] is created.
22. Ideally, religious activities should be
guided by a qualified kahu, kumu, or kupuna.
However, at the very least, Native Hawaiian
religious activities should be practiced and
performed by participants in a communal
setting . . . .
23. Based upon the above discussions, it is
not uncommon for Native Hawaiian religious
practitioners to meet as a group outdoors at dawn
to pray, chant and dance, meditate, and give
offerings and commune with the land and the
spirits as an essential expression of their
religious belief and faith.
[Tengan Report at ¶¶ 8-23.]
In support of their position that
“[g]reeting the sun daily is an important aspect of Native
Hawaiian religion,” [Pltfs.’ CSOF at ¶ 17,] Plaintiffs rely on
the Tengan Report and Ka`iana Haili’s14 deposition testimony
that, for many practitioners of the Native Hawaiian religion,
14
Haili, who acts as the spiritual advisor to the
practitioners of the Native Hawaiian religion at Saguaro,
testified that, from 2010 to the present, he had visited Saguaro
an average of four times a year to provide religious programming
services. Two of the visits are usually associated with the
opening and closing of the Makahiki season, and the other two
visits are usually close to other ceremonial dates. [Defs.’
Responsive CSOF, Decl. of David C. Lewis (“Lewis Decl.”), Exh. 2
(Excerpts of Trans. of 5/31/13 Depo. of Ka`iana Haili (“Defs.’
Responsive Excerpts of Haili 5/31/13 Depo.”) at 288.]
23
“when a Hawaiian woke up, the head male of the household would go
to a small building called the hale mua, or the men’s house.
There he would feed his gods.”
[Pltfs.’ CSOF, Decl. of
Sharla Manley (“Manley Decl.”), Exh. I (Excerpts of Trans. of
5/31/13 Depo. of Ka`iana Haili (“Pltfs.’ Excerpts of Haili
5/31/13 Depo.”)) at 247.]
This occurred on a daily basis.
[Id.
at 342.]
Defendants argue that Plaintiffs have not established
that the practices at issue are their religious exercises, as
opposed to the religious exercises of third-parties.
Thus,
Defendants argue that the Tengan Report and Haili’s testimony are
not enough to meet Plaintiffs’ burden on summary judgment because
they merely establish that certain religious protocols could be
religious exercises for a practitioner of the Native Hawaiian
religion.
Further, Defendants argue that there is a dispute of
material fact as to whether the practices at issue in this case
are religious, as opposed to cultural, or lifestyle, practices.
[Defs.’ Amended Concise Statement of Facts in Supp. of Their
Response to Pltfs.’ Motion, filed 1/6/14 (dkt. no. 464) (“Defs.’
Responsive CSOF”), at ¶¶ 1-4.]
Defendants rely on Haili’s
testimony that, the practices of the Native Hawaiian religion
vary among islands, among districts within an island, and even
among families.
[Id. (citing Defs.’ Responsive Excerpts of Haili
5/31/13 Depo. at 244.]
Defendants also rely on Haili’s testimony
24
that, “I don’t consider it a culture and I don’t consider it a
religion.
My easiest western word is lifestyle.”
[Id. (quoting
Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 304).]
First, Defendants are correct that Plaintiffs did not
submit any declarations with Plaintiffs’ CSOF describing their
individual religious exercises.
In ruling upon Plaintiffs’
Motion, this Court is not limited to considering the evidence
that Plaintiffs submitted with Plaintiffs’ CSOF.
See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(“Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no
genuine issue for trial.” (emphasis added) (citation and
quotation marks omitted)).
This Court will therefore consider
Plaintiffs’ declarations submitted with the Joint Plaintiffs’
Amended Separate Concise Statement of Facts in Opposition to
Defendants’ Motion (“Joint Plaintiffs’ Responsive CSOF”), [filed
1/6/14 (dkt. no. 466),] in ruling on Plaintiffs’ Motion.
Plaintiff Davis’s declaration states, in pertinent
part:
8.
I sincerely believe that I must pray,
chant and dance hula to express my sincerely held
Native Hawaiian religious beliefs.
. . . .
10. I sincerely believe these prayers,
chants, and hula must be done with other Native
Hawaiian practitioners, as a group, to foster
mana.
25
. . . .
12. I sincerely believe that nature is the
home of both ancestral spirits and Hawaiian
deities. I also believe that ho`ailona, or signs
from the gods, are communicated through nature.
13. Because our akua (gods) are naturebased, I must worship outdoors.
14. I sincerely believe that Hawaiian
spiritual practices are not limited to a certain
day of the week. Instead Hawaiian religion must
be practiced on a daily basis.
[Joint Pltfs.’ Responsive CSOF, Decl. of Richard Davis (“Davis
Decl.”) at ¶¶ 8-14.]
The other Plaintiffs who have a pending
RLUIPA claim based on the denial of daily, outdoor, group worship
(collectively, “the Daily Outdoor Worship Plaintiffs”) submitted
substantively identical declarations on this issue.15
[Galdones
Decl. at ¶¶ 10-17; Joint Pltfs.’ Responsive CSOF, Decl. of
Michael Hughes (“Hughes Decl.”) at ¶¶ 8-14; id., Decl. of
15
For purposes of this order, the Daily Outdoor Worship
Plaintiffs are: Plaintiffs Davis, Galdones, Hughes, Kaahu, and
Kane. This Court previously dismissed Plaintiff Keawe’s federal
claims based on daily religious congregation for failure to
exhaust his administrative remedies. 4/11/13 Order, 2013 WL
1568425, at *13. In light of Plaintiff Holbron’s security
status, which is different than that of the other Plaintiffs,
Plaintiff Holbron does not challenge Defendants’ failure to give
him daily access to a sacred outdoor space. [Mem. in Supp. of
Holbron’s Counter-Motion at 1 & n.1.] Plaintiff Poaha also has a
pending RLUIPA claim regarding the ability to engage in daily,
outdoor, group worship. As stated, supra Discussion section I,
Plaintiff Poaha does not have pending claims seeking prospective
declaratory and injunctive relief in light of his transfer to
Halawa.
26
Damien Kaahu (“Kaahu Decl.”) at ¶¶ 8-15; id., Decl. of
James Kane III (“Kane Decl.”) at ¶¶ 12-18.]
Second, this Court cannot find that Haili’s deposition
testimony creates a genuine issue of fact as to the question of
whether daily, outdoor, group worship is a “religious exercise”
for purposes of the Daily Outdoor Worship Plaintiffs’ RLUIPA
claim.
Defendants take Haili’s testimony about lifestyle as
opposed to religion out of context.
Haili gave that testimony
during the following exchange:
Q.
And would the hula and the chant class,
would that be considered purely a religious
programming [sic] or is there a cultural aspect to
it, can you even parse that out?
A.
No, you can’t really separate our
culture from our, what the western deems
religious. It is all the same. Our lifestyles
are interspersed with our deities, our ancestral
elevated family deities, aumakua or family
protectors, all those things are interspersed into
our daily lives as a lifestyle. I don’t consider
it a culture and I don’t consider it a religion.
My easiest western word is lifestyle.
[Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 303-04.]
Haili’s testimony does not support Defendants’ position that the
practices at issue in this case may not be religious exercises
because they are cultural or lifestyle practices.
Haili
testified that practitioners of the Native Hawaiian religion
interweave their religion and culture in their daily lives, and
therefore he would not characterize something as being only a
religious practice.
This testimony, taken in the context of
27
Haili’s testimony as a whole, supports the Daily Outdoor Worship
Plaintiffs’ position.
Nor does Haili’s testimony that there are variances in
the individual practices of practitioners of the Native Hawaiian
religion support Defendants’ position.
Haili acknowledged
differences in practice, [id. at 244,] but he stated that many of
these differences are due to the fact that the deity who the
practitioner honored varied depending on who the practitioner’s
ancestors were.
If you were a farmer, your highest deity that you
would look to would be Lono, the god of
agriculture.
If you were a fisherman, the deity you would
look to would be Kanaloa, the ocean.
If you were a navigator, the stars, and
. . . there are so many variances on that. And
that’s just the highest deity.
[Id. at 246-47.]
Although the deities may have differed,
practitioners of the Native Hawaiian religion shared some common
practices.
For example, the male head of a household would go to
the hale mua when he woke up to feed his gods.
[Id. at 247.]
Even viewing the record in the light most favorable to
Defendants, this Court finds that there is no genuine dispute of
material fact as to the issue of whether daily, outdoor, group
worship is a religious exercise for purposes of Count XXII.
Fed. R. Civ. P. 56(a).
See
This Court therefore GRANTS Plaintiffs’
Motion insofar as this Court FINDS that, as to the Daily Outdoor
28
Worship Plaintiffs, group worship outdoors, on a daily basis, is
a religious exercise for purposes of RLUIPA.
B.
Observance of Makahiki
Count XXIII alleges that Defendants violated RLUIPA
when they banned Plaintiffs16 from observing “the opening and
closing days of the Makahiki Season in 2009-2011 with specific
religious protocol.”
445.]
[Second Amended Complaint at ¶¶ 439, 442,
The Second Amended Complaint also alleges:
The ceremonies marking the beginning and end of
Makahiki Season includes the following customary
and traditional activities critical to the Native
Hawaiian faith: a) a sunrise service; b) a twohour session dressing the image of Lono, and
preparing offerings and giving offerings,
including chanting and dancing; c) a one-hour
procession; d) a 30-minute opening prayer; e) a
1.5-hour session of traditional games; f) a twohour session of chanting, prayer, and an awa
ceremony; g) a three-hour ceremonial feast, food
to be prepared by inmates serving the following
ceremonial foods, ia ulaula (red fish), taro,
sweet potato, pork, breadfruit, coconut, banana
and the awa drink. These activities should be
performed outdoors by all practitioners, as well
as attendance and presence of a kahu or other
religious leaders.
[Id. at ¶ 49.]
Plaintiffs’ Motion states that Plaintiffs
requested authorization to observe the opening and closing of the
Makahiki Season with most of these religious protocols, and they
sought to have access to “their sacred garments, purification
items, communal sacred items and an akua loa to assist them in
16
All Plaintiffs’ RLUIPA claims regarding the observance of
Makahiki are properly before this Court.
29
their worship activities.”
31.]
[Mem. in Supp. of Pltfs.’ Motion at
Plaintiffs’ Motion ultimately requests a finding that “the
observance of the opening and closing days of the Makahiki Season
with certain religious protocol and sacred items as requested by
Plaintiffs” is a religious exercise for purposes of RLUIPA.
at 31-32.]
In support of this request, Plaintiffs rely on the
following portions of the Tengan Report:
34. Makahiki is a fundamental annual
religious event for Native Hawaiians, allowing
them to honor Lono, the deity of peace,
agriculture, fertility, and medicine.
35. The Makahiki season is a three to four
month period signaled by the rising of the
Makali`i (Pleiades) in October and/or November
each year and begins a season of peace following
the harvest. The season typically ends following
the setting of Makali`i in February and/or March.
. . . .
37. Observance of the opening day and
closing day of the Makahiki season are integrally
important to Native Hawaiian religious and
spiritual beliefs.
38. Traditionally, the akua loa, a 16-foot
pole with a carved representation of Lono at the
top and a crosspiece hung with sheets of tapa,
fern and feather leis, was carried around each
island from district to district, with the people
paying tribute to the ruling chief and offering
gifts in the form of food, crafts, featherwork,
stone implements, lauhala mats and other products.
Games and competitions between villages displayed
the physical and mental prowess of the people.
39. Native Hawaiian religious practitioners
may require ceremonial foods for offerings to
30
[Id.
Lono. The use of such foods is based upon
religious beliefs and practices first established
by Native Hawaiians prior to 1778.
40. While the protocol in observing the
opening and closing days of Makahiki is based upon
religious beliefs and practices first established
by Native Hawaiians prior to 1778, the specific
practices and protocol depend on the
practitioner’s island and/or ahupua`a (traditional
land division).
41. Common practices accepted by most Native
Hawaiian religious practitioners in observing the
opening and closing days of Makahiki include but
are not limited to prayers, chanting, dancing,
offerings, cleansing ceremonies, `awa ceremonies,
games and competitions and ceremonial feasts.
[Tengan Report at ¶¶ 34-41.]
Defendants admit that “Makahiki
observance can be a practice of Native Hawaiians but specific
practices vary widely.”
[Defs.’ Responsive CSOF at ¶ 24-28
(emphasis in original).17]
Defendants also made qualified
admissions that the religious observance of the opening and
closing days of the Makahiki season originated prior to 1778 and
that there are common practices associated with the opening and
closing observances.
[Pltfs.’ CSOF at ¶¶ 32-33;18 Defs.’
Responsive CSOF at ¶¶ 32-33.]
Defendants admit that giving
special foods as a sacrament and partaking in representative
17
Defendants’ Responsive CSOF contains several instances
where a single paragraphs responds to multiple paragraphs in
Plaintiffs’ CSOF.
18
Plaintiffs’ CSOF paragraph 33 lists the examples of
common Makahiki practices identified in paragraph 41 of the
Tengan Report.
31
pieces are part of the observance of Makahiki, but they argue
that “a communal feast was not traditionally observed” and “[t]he
sacrament consisted of whatever was available to the
practitioners.”
[Defs.’ Responsive CSOF at ¶ 29-31 (citing Lewis
Decl., Exh. 1 (Excerpts of Trans. of 5/8/13 Depo. of Ka`iana
Haili (“Defs.’ Responsive Excerpts of Haili 5/8/13 Depo.”)) at
27-30, 186-88; Defs.’ Responsive Excerpts of Haili 5/31/13 Depo.
at 316).]
Defendants also argue that, where a feast is observed
for the Makahiki season, there is no required menu.
[Pltfs.’
CSOF at ¶ 37; Defs.’ Responsive CSOF at ¶ 37.]
Plaintiffs’ declarations describe their beliefs
regarding the observance of the Makahiki season.
[Davis Decl. at
¶¶ 57-65; Galdones Decl. at ¶¶ 50-58; Hughes Decl. at ¶¶ 48-56;
Kaahu Decl. at ¶¶ 53-61; Decl. of Robert A. Holbron, filed
12/20/13 (dkt. no. 436-4) (“Holbron Decl.”) at ¶¶ 25-32; Kane
Decl. at ¶¶ 66-76; Keawe Decl. at ¶¶ 46-56.]
Plaintiff Davis
states, inter alia, that he “sincerely believe[s] that [he] must
observe the opening and closing days of Makahiki with an outdoor
sunrise ceremony, prayers, chanting, dancing, offerings,
cleansing ceremonies, drinking `awa ceremonies, games and
competitions and ceremonial feasts including the partaking of
special foods to honor the God, Lono.”
[Id. at ¶ 61.]
The other
Plaintiffs’ declarations contain substantively identical
statements.
[Galdones Decl. at ¶ 54; Hughes Decl. at ¶ 52; Kaahu
32
Decl. at ¶ 57; Holbron Decl. at ¶¶ 27-29; Kane Decl. at ¶ 70;
Keawe Decl. at ¶ 50.]
Haili testified that there are nine sacramental
offerings for Lono: “[f]resh water, awa, pig, red fish, sweet
potato, banana, taro, ulu” and lama wood.
[Defs.’ Responsive
Excerpts of Haili 5/8/13 Depo. at 27-28.]
He described the
giving of the sacrament during Makahiki, as: “after we fed the
gods and have given the offerings on the lele, the altar, we’ve
also taken a certain amount of those, not all of those foods, but
the ones that we can afford.”
[Id. at 28.]
consume the sacrament to “ingest[] the God.”
They pray and then
[Id. at 29.]
testified that this is distinct from the lu`au (feast).
has the spiritual function of blessing something.
Haili
A lu`au
Haili
testified that a lu`au associated with a ceremony can be very
small or very large, “depending on what you have to share,” and
it is not meant to be “a hardship on a community or anything.”
[Id. at 30-31.]
In Hawai`i, if practitioners were not able to
have a full feast “that was okay” because the purpose is to
“fe[e]d the God.”
[Id. at 187.]
Haili testified that Makahiki was not traditionally
observed with a feast.
[Id. at 30.]
In contrast, he also
testified that, at Makahiki celebrations throughout Hawai`i,
“probably the majority of the foods would be the same,” including
traditional lu`au foods of “lau lau, kalua pig, poke, fresh
33
fish”, and there would also be the foods “that have to do with
the deity.”
at 316.]
[Defs.’ Responsive Excerpts of Haili 5/31/13 Depo.
The foods at a celebration, however, are subject to
availability.
See, e.g., id. (“We’re not going to overfish if
it’s not available.”).
When asked to describe the importance of
having a communal or celebratory meal after the Makahiki
observance, Haili responded, “[i]t’s on the lower profile of the
scale.”
[Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at
185-86.]
Even viewing all of the evidence in the light most
favorable to Defendants, this Court finds that there is no
genuine issue of material fact that the observance of the opening
and closing days of the Makahiki season, as described in the
Tengan Report,19 is a religious exercise for purposes of
19
Defendants contest Plaintiffs’ CSOF regarding the timing
of the observance of the Makahiki season. [Pltfs.’ CSOF at ¶ 26;
Defs.’ Responsive CSOF at ¶ 24-28.] In support of their argument
that the timing varies, Defendants submit various schedules for
Makahiki celebrations that defense counsel identified on the
internet. [Lewis Decl., Exh. 5 (Decl. of Jamie D. Guzman
(“Guzman Responsive Decl.”)), Exh. 1.] This Court notes that
eight of the ten Makahiki events listed in the Guzman Responsive
Declaration occurred in November, which is consistent with
Dr. Tengan’s description of the opening of the Makahiki season as
occurring in October or November. The other two events occurred
in January, which is not consistent with Dr. Tengan’s
description. This Court, however, finds that the Guzman
Responsive Declaration and its exhibit do not raise a genuine
issue of material fact as to when practitioners of the Native
Hawaiian religion observe the Makahiki season. The schedules of
the events do not indicate that the events are religious
celebrations of the Makahiki season. Further, some of the
(continued...)
34
Count XXIII (Plaintiffs’ RLUIPA claim regarding the observance of
Makahiki).
This Court also finds that there is no genuine issue
of material fact as to the following components of the observance
of the opening and closing of the Makahiki season: an outdoor
sunrise ceremony, prayers, chanting, dancing, offerings,
cleansing ceremonies, `awa drinking ceremonies, games and
competitions, ceremonial feasts, and sacramental offerings of
special foods to honor Lono.
This Court finds that, for purposes
of Plaintiffs’ RLUIPA claim regarding the observance of Makahiki,
these components, in general, constitute religious exercises.
This Court GRANTS Plaintiffs’ Motion as to these matters.
As to any other elements of the observance of Makahiki
and as to the specific content and duration of the outdoor
sunrise ceremony, prayers, chanting, dancing, offerings,
cleansing ceremonies, `awa drinking ceremonies, games and
competitions, ceremonial feasts, and sacramental offerings, this
Court finds that there are genuine issues of material fact which
preclude summary judgment on the issue of what is necessary to
19
(...continued)
descriptions expressly acknowledge the traditional Makahiki
season that began with the rising of the Pleiades and lasting
approximately four months. See id., Aloha International Makahiki
Festival 2002; id., Star Advertiser article “Makahiki festivities
a tribute to Hawaiian culture.” Thus, Defendants’ submission
does not raise a triable issue of fact as to the question of when
the Makahiki season is celebrated by practitioners of the Native
Hawaiian religion.
35
constitute religious exercises.
This Court DENIES Plaintiffs’
Motion as to these matters.
C.
Access to Sacred Items
Count XXIV alleges that Defendants violated RLUIPA when
they banned Plaintiffs20 from
accessing the following sacred items: malo, kihei
and pau (native garments), block of lama wood,
kapa, pa`a kai (sea salt), apu (coconut shell
bowl), ti shoots and leafs, kala (seaweed), `olena
(yellow ginger), a kahili (pole with cylindrical
top covered with feathers, cloth, flora and/or
painted), pu kani (conch shell), pahu (tree stump
drum), ipu (gourd drum), ipu heke (double gourd
drum), `ohe ka eke`eke (percussion instrument), pu
niu (small knee drum), `ohe hano ihu (bamboo nose
flute), pu ohe (bamboo shell horn), and moena
(floor mats made of woven lauhala, grasses,
natural fibers).
[Second Amended Complaint at ¶¶ 453, 459.]
The Second Amended
Complaint also alleges that access to these sacred items is “[a]
critical tenet of Native Hawaiian religion essential to the
expression of Plaintiffs’ faith.”
[Id. at ¶ 50.]
According to Plaintiffs’ Motion, they requested access
to malo, kihei, pā`ū, kūpe`e, and lei for use in all religious
activities and ceremonies, including personal prayer.
20
Plaintiffs
All Plaintiffs’ RLUIPA claims regarding access to sacred
items are properly before this Court. This Court notes that,
because Plaintiff Holbron was in administrative segregation
during the relevant time period, Count XXIV alleges that
Defendants violated RLUIPA by banning Plaintiff Holbron from
meeting with a kahu who would facilitate his access to the sacred
items at issue in Count XXIV. [Second Amended Complaint at
¶¶ 456, 462.]
36
also argue that both Dr. Tengan and Haili recognize that
practitioners of the Native Hawaiian religion sometimes use a
small, sacred object or amulet, which represents and/or manifests
the mana of their ancestors and deities, in their religious
rituals and protocol.21
[Mem. in Supp. of Motion at 27-28.]
Plaintiffs also requested access to the following items for
purification in protection rituals: ti leaf, sea salt, `ōlena,
[Id. at 28.]
and moena.
The remaining items identified in
Count XXIV are communal items for group worship activities.
[Id.
at 28-29.]
1.
Ceremonial Garments & Amulets
Defendants admit that practitioners of the Native
Hawaiian religion may wear certain clothing, including malo,
kihei, pā`ū, kūpe`e, and lei to express their faith and religious
beliefs.
[Pltfs.’ CSOF at ¶ 44; Defs.’ Responsive CSOF at ¶ 44-
48 (citing Defs.’ Responsive CSOF at ¶ 35 (citing Tengan Report
at ¶ 10)).]
Plaintiff Davis states that he sincerely believes he
needs daily access to, inter alia, a malo, kihei, pā`ū, kūpe`e,
21
Count XXIV does not expressly mention kūpe`e, lei or
amulets/personal sacred objects. As this Court noted in
connection with Plaintiffs’ motion for a preliminary injunction,
the relief that Plaintiffs seek as to kūpe`e, lei, and
amulets/personal sacred objects “is of the same character as some
of the relief that Plaintiffs ultimately seek in this action.”
See Davis v. Abercrombie, 903 F. Supp. 2d 975, 995 (D. Hawai`i
2012). Thus, Plaintiffs’ arguments regarding kūpe`e, lei, and
amulets/personal sacred objects is within the scope of their
RLUIPA claim in Count XXIV. See id.
37
and lei “for Native Hawaiian worship activities,” and he believes
that he must wear these items during religious rituals and
protocol.
[Davis Decl. at ¶¶ 30, 43.]
Further, being forced to
share his malo, kihei, and pā`ū with other practitioners violates
his religious beliefs because the malo and the kihei contain his
mana and should be kept in his cell at all times.
45.]
[Id. at ¶¶ 35,
The other Plaintiffs’ declarations contain substantively
identical statements.
[Galdones Decl. at ¶¶ 32, 39, 42-44;
Hughes Decl. at ¶¶ 30, 35, 37-39; Kaahu Decl. at ¶¶ 32, 38, 4043; Holbron Decl. at ¶¶ 63-64; Kane Decl. at ¶¶ 44, 54, 59-61;
Keawe Decl. at ¶¶ 27, 38-41.]
Defendants acknowledge that amulets may be used by
practitioners of the Native Hawaiian religion.
¶ 53; Defs.’ Responsive CSOF at ¶ 53.]
[Pltfs.’ CSOF at
Haili testified that a
Native Hawaiian practitioner’s personal amulet connects him to
his ancestors and his “innate religious, . . . spiritual
beliefs.”
[Pltfs.’ Excerpts of Haili 5/8/13 Depo. at 265.]
The Davis Declaration states that an amulet is a
“personal sacred object,” and he sincerely believes that it
“should be made by [him] or passed down to [him] by a kahu, kumu,
or kupuna, rather than purchased through a vendor.”
at ¶¶ 35-36.]
[Davis Decl.
He sincerely believes that an amulet is necessary
for his daily worship activities.
[Id. at ¶ 30.]
Davis
previously possessed such an amulet, which a kumu gave him, but
38
Saguaro staff confiscated it.
Davis used the amulet “for prayers
and guidance and to sustain mana.”
[Id. at ¶ 39.]
The other
Plaintiffs expressed similar beliefs regarding the role of
amulets in their religious activities.
[Galdones Decl. at ¶¶ 32,
39-40; Hughes Decl. at ¶¶ 30, 35-36; Kaahu Decl. at ¶¶ 32, 38-39;
Holbron Decl. at ¶ 65 (stating only that “[t]he amulet is
something that I sincerely believe should be made by me or passed
down to me by a kahu, kumu, or kupuna”); Kane Decl. at ¶¶ 44, 5455, 56-58 (describing his beliefs and discussing his amulet that
was damaged during a cell search); Keawe Decl. at ¶¶ 27, 28.]
Even viewing the record in the light most favorable to
Defendants, this Court finds that there is no genuine issue of
material fact as to whether Plaintiffs’ use of malo, kihei, pā`ū,
kūpe`e, lei, and amulets/personal sacred objects is a religious
exercise for purposes of RLUIPA.
2.
Items for Protection and Cleansing
Plaintiffs’ CSOF states:
50. Further, Native Hawaiian religious
practitioners typically perform a cleansing
ceremony prior to the commencement of their
communal rituals and protocol as an essential
expression of their religious belief and faith.
Such ceremonies are based upon religious beliefs
and practices first established by Native
Hawaiians prior to 1778.
51. The following sacred items may be used
for ritual purification: ti leaf, paakai (sea
salt), olena (turmeric) and coconut oil.
[Pltfs.’ CSOF at ¶¶ 50-51 (citing Tengan Report at ¶ 31; Pltfs.’
39
Excerpts of Haili 5/31/13 Depo. at 258, 273-74).]
Defendants
acknowledge that these can be practices of the Native Hawaiian
religion.
[Defs.’ Responsive CSOF at ¶ 50-52.]
Plaintiff Davis’s declaration states:
50. I sincerely believe that items used for
protection and cleansing must be on-hand every
day.
51. Pa`akai (sea salt) is used for
purification. Kala (seaweed) and `ōlena (yellow
ginger) are used for cleansing and religious
purification.
52.
Ti leaf is used for protection.
. . . .
56. I sincerely believe that I need a moena
(floor mats made of woven lauhala, grasses,
natural fibers) to connect to the earth during
daily prayers. It transforms the space and it is
sacred because it is made of lauhala which is a
symbol of po or the afterlife.
[Davis Decl. at ¶¶ 50-52, 56.]
The other Plaintiffs’
declarations attest to substantively identical beliefs regarding
items necessary for protection and cleansing.
[Galdones Decl. at
¶¶ 45-47, 49; Hughes Decl. at ¶¶ 42-44, 47; Kaahu Decl. at ¶¶ 4648, 52; Holbron Decl. at ¶¶ 64-65; Kane Decl. at ¶¶ 62-65; Keawe
Decl. at ¶¶ 42-45.]
Even viewing the record in the light most favorable to
Defendants, this Court finds that there is no genuine issue of
material fact as to whether Plaintiffs’ use of pa`akai, kala,
40
`ōlena, ti leaf, and moena is a religious exercise for purposes
of RLUIPA.
3.
Items for Group Worship Activities
Plaintiffs argue that the remainder of the sacred items
identified in Count XXIV, [Second Amended Complaint at ¶¶ 453,
459, quoted supra,] are “communal items required for group
worship activities.”
[Mem. in Supp. of Pltfs.’ Motion at 28.]
Plaintiffs assert that practitioners of the Native Hawaiian
religion “must be able to access certain religious materials for
daily use as an essential expression of their religious belief
and faith.”
[Pltfs.’ CSOF at ¶ 49 (citing Tengan Report at ¶ 30;
Pltf.’s Excerpts of Haili 5/31/13 Depo. at 285-86).]
Defendants
respond that the items identified in Count XXIV are merely
“‘examples’ of items that may be used by practitioners.
Certain
items are not required/may be substituted depending on
availability.”
[Defs.’ Responsive CSOF at ¶ 49 (some citations
omitted) (citing Bush, et al. v. State of Haw., CV 04-00096 DAEKSC, Decl. of Ka`iana Haili in Supp. of Response to Motion to
Enforce Settlement Agreement Entered on May 13, 2005, filed
11/10/09 (dkt. no. 87-7) (“Haili Bush Decl.”), at ¶ 14.b).]
Haili’s declaration in Bush states, in pertinent part:
[A]ll of the sacred items required of Makahiki
observers will be available to the prisoners. The
only exceptions are a kahili (pole with feathers,
cloth, flora), `ohe ha eke `eke (percussion
instrument), pu niu (small knee drum), and awa.
Likewise, the kahili may be substituted with the
41
image of Lono (two large wooden poles and kapa
cloth), which will be provided. The percussion
instrument and small knee drum are traditionally
used for a specific hula and not in observance of
Makahiki as I was taught; therefore, these items
are not needed for the November 28
ceremonies. . . .
[Haili Bush Decl. at ¶ 14.b.]
The Haili Bush Declaration only
addresses the use of these items in Makahiki celebrations; the
declaration does not address whether there are other uses for
these items in the practice of the Native Hawaiian religion.
Further, even if this Court accepts the Haili Bush Declaration as
evidence that other items can be used as substitutes for some of
the items at issue in Count XXIV, the availability of a
substitute does not prove that the use of the original item is
not a religious exercise.
If the availability of substitutes is
relevant, it is relevant to the issue of substantial burden.
Thus, the Haili Bush Declaration does not raise a genuine issue
of fact as to whether the communal worship items addressed in
Count XXIV are part of the exercise of the Native Hawaiian
religion in general.
The Davis Declaration states, in pertinent part:
I sincerely believe that I need to have daily
access to the following sacred items for Native
Hawaiian worship activities: . . . block of lama
wood, kapa (cloth), . . . `apu (coconut shell
bowl), ti shoots and leafs,[22] . . . , a kāhili
22
Plaintiffs addressed the use of ti leaves in their
discussion of items necessary for purification and cleansing.
(continued...)
42
(pole with cylindrical top covered with feathers,
cloth, flora and/or painted), pū kani (conch
shell), pahu (tree stump drum), ipu (gourd drum),
ipu heke (double gourd drum), `ohe kā`eke`eke
(percussion instrument), pūniu (small knee drum),
`ohe hano ihu (bamboo nose flute), [and] pū`ohe
(bamboo shell horn) . . . .
[Davis Decl. at ¶ 30.]
The other Plaintiffs’ declarations attest
to substantively identical beliefs regarding these items.
[Galdones Decl. at ¶ 32; Hughes Decl. at ¶ 30; Kaahu Decl. at
¶ 32; Holbron Decl. at ¶ 63; Kane Decl. at ¶ 44; Keawe Decl. at
¶ 27.]
Even viewing the record in the light most favorable to
Defendants, this Court finds that there is no genuine issue of
material fact as to whether Plaintiffs’ use of these items for
communal group worship is a religious exercise for purposes of
RLUIPA.
4.
Summary of Ruling
This Court GRANTS Plaintiffs’ Motion and FINDS that
Plaintiffs’ use of each of the sacred items addressed in
Count XXIV is a religious exercise for purposes of RLUIPA.
22
(...continued)
Although not expressly stated in Plaintiffs’ submissions, this
Court assumes that Plaintiffs have specifically mentioned ti
shoots in addition to ti leaves because ti shoots have a separate
purpose from ti leaves.
43
D.
Access to a Sacred Outdoor Space (Altar)
Count XXV alleges that Defendants violated RLUIPA when
they banned Plaintiffs23 from “establishing an outdoor sacred
space for worship.”
[Second Amended Complaint at ¶¶ 467, 470.]
The Tengan Report explains the significance of a stone altar for
practitioners of the Native Hawaiian religion:
43. In ancient times, pu`uhonua [(place of
refuge)] lands provided relief to lawbreakers and
those who unintentionally violated religious rules
known as kapu. Because pu`uhonua lands were
sacrosanct and inviolable, a wrongdoer was
protected from harm or death after entering a
pu`uhonua.
44. On a smaller scale, many families
maintained intergenerational pu`uhonua, known as
Pohaku o Kane, where the family went to seek
relief from death, illness, or other misfortunes
through prayer and offerings to the family
`aumakua.
45. In contrast to large pu`uhonua, the
Pohaku o Kane consisted of a single stone altar,
surrounded by cultivated greenery such as ti
leafs. The proper stone for use as a Pohaku o
Kane was revealed to each family through a dream
or other omen.
23
The Plaintiffs who have a pending RLUIPA claim regarding
access to a sacred outdoor space, including an altar, are
Plaintiffs Davis, Galdones, Hughes, Kaahu, and Kane
(collectively, “the Outdoor Altar Plaintiffs”). This Court
dismissed Plaintiff Keawe’s federal claims based on access to an
outdoor altar on exhaustion grounds. 4/11/13 Order, 2013 WL
1568425, at *13. In light of his administrative segregation
status, Plaintiff Holbron does not contest Defendants’ failure to
give him access to a sacred outdoor space. [Mem. in Supp. of
Holbron’s Counter-Motion at 1 & n.1.] Plaintiff Poaha does not
have any pending claims seeking prospective declaratory and
injunctive relief.
44
46. Today, pu`uhonua and Pohaku o Kane
continue to have cultural and religious
significance as both symbols of redemption, and as
important physical sites for religious ceremony
and healing.
47. Accordingly, it is not uncommon for
Native Hawaiian religious practitioners to seek
out traditional pu`uhonua lands when performing
important ceremonies, or to set up a Pohaku o Kane
as a focal point for religious activities and
healing.
[Tengan Report at ¶¶ 42-47.]
In addition, the Outdoor Altar
Plaintiffs assert that:
65. Native Hawaiian religious practitioners
also acknowledge the sunrise with ceremonies and
prayers near large boulders or pohaku which
commemorate the farthest point to the north and
the farthest point to the south as the sun rises.
66. Consistent with the Pohaku o Kane
concept, Kaina [sic] Haili has built a stone
“kuahu” (altar for prayers and offerings) in his
backyard.
67. Such an altar should be made from
natural materials, such as rock.
68. Such an altar should be of interlinking
rocks, approximately 4 feet by 4 feet in
dimension.
69. Advisor Haili recommended that Saguaro
accommodate the request for a stone altar.
[Pltfs.’ CSOF at ¶¶ 65-69 (citing Pltfs.’ Excerpts of Haili
5/8/13 Depo. at 118-19, 161-62; Pltfs.’ Excerpts of Haili 5/31/13
Depo. at 253-54, 294-95, 297-98).]
Defendants counter that these are merely Haili’s
personal opinions.
[Defs.’ CSOF at ¶ 67-69.]
45
Defendants
acknowledge that “[a]n altar may be used for weekly sacraments or
ceremonies, but daily access is ‘an exception.’”
[Id. at ¶ 66
(citing Defs.’ Responsive Excerpts of Haili 5/8/13 Depo. at 135;
Defs.’ Responsive Excerpts of Haili 5/31/13 Depo. at 299).]
In
his deposition, Haili testified that the practice of having a
stone altar in one’s yard or near one’s home was a prevalent
practice “for practitioners that managed to have a continuity in
their family, which is an exception, to have three or four
generations living in the same roof like my family in Waimea was
for many generations.”
[Defs.’ Responsive Excerpts of Haili
5/8/13 Depo. at 135.]
Thus, even the evidence that Defendants
rely upon establishes that the use of an outdoor, stone altar was
a common practice for at least some practitioners of the Native
Hawaiian religion.
Plaintiff Davis’s declaration states:
17. I sincerely believe that I must have
access to at least two spiritually significant
pohaku (rocks) to serve as a stone altar outside.
18. I sincerely belief that this sacred
space should have plants that are significant
spiritually and would not object to sharing this
space with other faiths.
19. The stone altar is important because it
is a symbolic place like a heiau (temple). This
altar is also the physical space for making
religious offerings.
20. In the same way that other religions are
practiced in a church with religious symbols like
a cross, the physical space of a stone altar or
garden serves as a sacred space for prayer.
46
[Davis Decl. at ¶¶ 17-20.]
All of the other Outdoor Altar
Plaintiffs’ declarations contains substantively identical
statements.
[Galdones Decl. at ¶¶ 19-20, 22-24; Hughes Decl. at
¶¶ 17-20; Kaahu Decl. at ¶¶ 17-21; Kane Decl. at ¶¶ 22-26.]
Even viewing the record in the light most favorable to
Defendants, this Court finds that there is no genuine issue of
material fact as to whether the Outdoor Altar Plaintiffs’ use of
a sacred outdoor space, with a stone altar, in general, is a
religious exercise for purposes of RLUIPA.
This Court, however,
finds that there are genuine issues of material fact which
preclude summary judgment as to the size and composition of the
sacred space and the altar.
This Court GRANTS Plaintiffs’ Motion
insofar as this Court FINDS that the Outdoor Altar Plaintiffs’
use of a sacred outdoor space, with a stone altar, is a religious
exercise for purposes of RLUIPA, but this Court DENIES
Plaintiffs’ Motion as to the size and composition of the outdoor
space and the altar.
E.
Regular Access to a Spiritual Advisor
Count XXVI alleges that Defendants violated RLUIPA when
they banned Plaintiffs24 from “meeting with a spiritual advisor
24
The relevant Plaintiffs for the RLUIPA claim regarding
access to a spiritual advisor are Plaintiffs Holbron, Kane, and
Keawe (collectively, “the Spiritual Advisor Plaintiffs”). This
Court dismissed Plaintiffs Davis, Galdones, Hughes, Kaahu, and
Poaha’s federal claims regarding access to a spiritual advisor on
exhaustion grounds. 4/11/13 Order, 2013 WL 1568425, at *13.
47
on a regular basis.”
[Second Amended Complaint at ¶¶ 475, 478.]
The Spiritual Advisor Plaintiffs assert:
73. From an early age, young Native
Hawaiians learn through listening, watching, and
participating in community life. Similarly,
spiritual values and teachings are passed from
generation to generation through the extended
family and community, primarily through direct
contact with those who are older and wiser and
trained in spiritual matters. Thus, the presence
and guidance of kūpuna [sic], kahu, kumu
(respected elders or teachers) is vital to the
transmission of spiritual knowledge to the Native
Hawaiian community.
74. Native Hawaiian religion was mostly
handed down through chanting, oral storytelling.
75. There is a traditional Hawaiian saying,
“He alo a he alo,” meaning “face-to-face,” which
demonstrates the importance of direct transmission
of prayer, chant, dance, and other religious
practices. Thus, such prayers, chants, dance, and
religious protocol cannot be learned from a book,
but must be learned from a kupuna, kahu, kumu
(respected elder or teacher) or others to whom the
prayers, chants, hula, and protocol have been
personally transmitted.
76. Religious activities should be guided by
a qualified kahu, kumu, or kupuna. However, at
the very least, Native Hawaiian religious
activities should be practiced and performed by
participants in a communal setting to ensure that
all participants are performing prayer, chant,
dance and religious protocols properly and gain
knowledge of their deeper meaning.
[Pltfs.’ CSOF at ¶¶ 73-76 (citing Tengan Report at ¶¶ 17, 19, 22;
Pltfs.’ Excerpts of Haili 5/31/13 Depo. at 248).]
Defendants
respond that these statements merely represent Dr. Tengan’s and
48
Haili’s personal opinions.25
76.]
[Defs.’ Responsive CSOF at ¶¶ 73-
Defendants, however, have not identified any specific facts
showing there is a genuine issue for trial as to whether regular
access to a spiritual advisor is a religious exercise for
purposes of the Spiritual Advisor Plaintiffs’ RLUIPA claim.
See
Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1189 (9th Cir. 2013)
(“to avoid summary judgment, the non-movant [must] ‘designate
specific facts showing that there is a genuine issue for trial’”
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986))).
Plaintiff Holbron stated in his declaration that he
sincerely believes that he must meet with a spiritual leader of
the Native Hawaiian religion as part of his religious worship.
[Holbron Decl. at ¶ 51.]
He also emphasized that he believes
mana is created in group prayer and chanting.
Plaintiff Keawe described the same beliefs.
[Id. at ¶ 59.]
[Keawe Decl. at
¶¶ 14, 77.]
25
Defendants also object on the ground that “[a] spiritual
advisor is not required to observe Makahiki.” [Defs.’ Responsive
CSOF at ¶ 76 (citation omitted).] Count XXVI, however, addresses
regular access to a spiritual advisor in general, not only during
specific celebrations, such as the Makahiki. Defendants also
raise arguments about what Saguaro provides to the practitioners
of the Native Hawaiian religion who are in the general
population, [id.,] but these arguments relate to the remainder of
the RLUIPA analysis and are inapplicable to the religious
exercise analysis.
49
Plaintiff Kane stated in his declaration that he
sincerely believes that religious “prayers, chants, hula, and
protocol must be learned from a kupuna, kahu, kumu (respected
elders, teachers) or one to whom the prayers, chants, hula and
protocol have been transmitted.”
[Kane Decl. at ¶ 13.]
Plaintiff Kane also emphasized his belief that mana is created in
group prayer, chanting, and hula.
[Id. at ¶¶ 14-15.]
For
example, Kane stated that, because Red Rock did not allow the
practitioners of the Native Hawaiian religion to gather and to
meet with a spiritual advisor, they “were not able to learn all
the chants and protocols [they] needed to know for Makahiki.”
[Id. at ¶ 39.]
He also states, “[b]ecause I am not in Hawaii, I
cannot request regular visits from a kumu because there is no one
I know in Arizona who is trained in Native Hawaiian religion.
I
do not have the financial means to bring someone from Hawaii to
Arizona.”
[Id. at ¶ 92.]
Based on the evidence that Plaintiffs presented about
the Native Hawaiian religion in general, as well as the evidence
presented specifically addressing the claims regarding access to
a spiritual advisor, the Spiritual Advisor Plaintiffs have
clearly established the significance of a spiritual advisor to a
practitioner of the Native Hawaiian religion.
Defendants have
not identified any specific evidence that raises a genuine issue
for trial as to the question of whether regular access to a
50
spiritual advisor is a religious exercise for purposes of the
Spiritual Advisor Plaintiffs’ RLUIPA claim.
This Court therefore
GRANTS Plaintiffs’ Motion IN PART as to Count XXVI and FINDS that
the Spiritual Advisor Plaintiffs’ regular access to a spiritual
advisor is a religious exercise for purposes of their RLUIPA
claim.
This Court, however, finds that there are genuine issues
for trial as to the question of what constitutes “regular” access
and the question of what type of access is necessary for the
Spiritual Advisor Plaintiffs’ religious exercise.
This Court
DENIES Plaintiffs’ Motion as to those aspects of Count XXVI.
F.
Summary of Ruling on Plaintiffs’ Motion
Plaintiffs’ Motion is GRANTED IN PART AND DENIED IN
PART.
This Court GRANTS Plaintiffs’ Motion insofar as this Court
FINDS as follows:
•Daily, outdoor, group worship is a religious exercise for
purposes of the Outdoor Worship Plaintiffs’ RLUIPA claim
(Count XXII).
•The observance of the opening and closing days of the Makahiki
season, during the time frame described in the Tengan
Report, is a religious exercise for purposes of Plaintiffs’
RLUIPA claim regarding the observance of Makahiki (Count
XXIII). Further, the following components of the observance
of the opening and closing days of the Makahiki season are
religious exercises: an outdoor sunrise ceremony, prayers,
chanting, dancing, offerings, cleansing ceremonies, `awa
drinking ceremonies, games and competitions, ceremonial
feasts, and sacramental offerings of special foods to honor
Lono.
•The use of each of the sacred items addressed in Plaintiffs’
RLUIPA claim regarding access to sacred items (Count XXIV)
is a religious exercise for purposes of RLUIPA.
51
•The Outdoor Altar Plaintiffs’ use of a sacred outdoor space,
with a stone altar, is a religious exercise for purposes of
their RLUIPA claim (Count XXV).
•The Spiritual Advisor Plaintiffs’ regular access to a spiritual
advisor is a religious exercise for purposes of their RLUIPA
claim (Count XXVI).
This Court DENIES Plaintiffs’ Motion insofar as this
Court FINDS that there are genuine issues for trial as to the
following issues:
•whether any other elements of the observance of Makahiki are
religious exercises for purposes of Count XXIV, and what is
the specific content and duration required for the outdoor
sunrise ceremony, prayers, chanting, dancing, offerings,
cleansing ceremonies, drinking `awa ceremonies, games and
competitions, ceremonial feasts, and sacramental offerings;
•what size and composition is required for the Outdoor Altar
Plaintiffs’ religious exercise; and
•what constitutes “regular” access to a spiritual advisor, and
what type of access is necessary for the Spiritual Advisor
Plaintiffs’ religious exercise.
This Court now turns to the merits of Defendants’
Motion.
III. Defendants’ Motion as to Plaintiffs
in the General Inmate Population
Defendants’ Motion seeks summary judgment in
Defendants’ favor as to all of Plaintiffs’ claims.
As noted
supra, although Plaintiff Holbron alleges claims regarding
religious access during restricted custody, those claims are
outside of the scope of this order because Plaintiff Holbron is
no longer in restricted custody and is currently in the general
inmate population, as are the other Plaintiffs.
52
A.
Claims Regarding Daily, Outdoor, Group Worship
1.
RLUIPA
In order to prevail on their RLUIPA claim, the Daily
Outdoor Worship Plaintiffs must establish a prima facie case that
Defendants’ policy/practice of denying them the ability to
participate in daily, outdoor, group worship, preferably at dawn,
constitutes a substantial burden on their religious exercise.
See Warsoldier v. Woodford, 418 F.3d 989, 994-95 (9th Cir. 2005)
(citing 42 U.S.C. § 2000cc-2(b)).
“If [the Daily Outdoor Worship
Plaintiffs] establish[] the prima facie existence of such a
substantial burden, on which [they] bear[] the burden of
persuasion, [Defendants] shall bear the burden of persuasion to
prove that any substantial burden on [the Daily Outdoor Worship
Plaintiffs’] exercise of [their] religious beliefs is both ‘in
furtherance of a compelling governmental interest’ and the ‘least
restrictive means of furthering that compelling governmental
interest.’”
See id. at 995 (quoting 42 U.S.C. § 2000cc–1(a))
(citing 42 U.S.C. § 2000cc–2(b)).
Having found that daily, outdoor, group worship is a
religious exercise for purposes of this RLUIPA claim, this Court
turns to the “substantial burden” analysis.
The Ninth Circuit
has stated:
Although
constitutes a
exercise, see
of a land use
RLUIPA does not define what
“substantial burden” on religious
42 U.S.C. § 2000cc–5, in the context
suit brought under RLUIPA, we have
53
explained that “for a land use regulation to
impose a ‘substantial burden,’ it must be
‘oppressive’ to a ‘significantly great’ extent.
That is, a ‘substantial burden’ on ‘religious
exercise’ must impose a significantly great
restriction or onus upon such exercise,” San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d
1024, 1034 (9th Cir. 2004). In addition, the
Supreme Court has found a substantial burden as
“where the state . . . denies [an important
benefit] because of conduct mandated by religious
belief, thereby putting substantial pressure on an
adherent to modify his behavior and to violate his
beliefs.” Thomas v. Review Bd. of the Ind.
Employment Sec. Div., 450 U.S. 707, 717–18, 101 S.
Ct. 1425, 67 L. Ed. 2d 624 (1981) (ruling in First
Amendment context). Although such “compulsion may
be indirect, the infringement upon free exercise
is nonetheless substantial.” Id. at 718, 101 S.
Ct. 1425.
Id. (alterations in Warsoldier).
Defendants acknowledge that inmate practitioners of the
Native Hawaiian religion are not permitted to engage in daily,
outdoor, group worship.
Defendants argue that this is not a
substantial burden on the Daily Outdoor Worship Plaintiffs’
religious exercise because Defendants provide them with
sufficient opportunities to engage in group religious activities.
According to Defendants’ evidence, Saguaro allows general
population inmates, who do not pose a safety and security risk,
to participate in weekly religious programming.
¶ 13.]
[Thomas Decl. at
At Saguaro, there are weekly hula classes, weekly
ritual/religion classes, and weekly language classes available to
inmates who practice the Native Hawaiian religion.
1.5 hours.
[Id. at ¶ 46.]
Each class is
Defendants emphasize the
54
practitioners’ ability to pray on their own during their outdoor
recreation time.
[Id. at ¶ 34.]
First, Plaintiffs dispute the availability of the
regular classes that Defendants rely upon.
For example, Warden
Thomas testified in deposition that, when Plaintiff Davis
submitted a grievance about being removed from the Hawaiian
language class, the Saguaro staff denied the grievance because,
inter alia, Plaintiff Davis was on a waiting list for a language
class and the language class “has nothing to do with [his]
religion.”
[Manley Responsive Decl., Exh. 18 (Excerpts of Warden
Todd Thomas’s 4/5/13 Depo. (“Pltfs.’ Excerpts of Thomas Depo.”))
at 244-46; id., Exh. 21 (Pltf. Davis’s Inmate/Resident Grievance
dated 9/27/11).]
Further, Plaintiff Davis states:
24. Although Saguaro offers some Native
Hawaiian classes, I have suffered spiritual injury
because these classes have not allowed me to
engage in my sincerely-held religious beliefs
about group worship.
25. This weekly session is held indoors, not
outside which is where I sincerely believe I must
worship.
26. I am permitted to attend one (1) weekly
Native Hawaiian class, either a hula class or a
chants/rituals class. Although I must practice
both hula and chant to exercise my Native Hawaiian
religious beliefs, I am forced to do one or the
other by the prison.
27. There is often not enough room in the
Native Hawaiian classes for all of us who want to
participate.
55
28. Furthermore, I suffered spiritual injury
when the prison had a special list that it used to
determine who could come to Native Hawaiian class
and who could not.
[Davis. Decl. at ¶¶ 24-28 (emphases in original).]
He states
that the inability to engage in daily, outdoor, group worship,
“preferably during sunrise,” has caused him “spiritual injury.”
[Id. at ¶¶ 22-23.]
The other Daily Outdoor Worship Plaintiffs
describe substantively identical beliefs and experiences about
daily, outdoor, group worship in general.
[Galdones Decl. at
¶¶ 26-31; Hughes Decl. at ¶¶ 22-28;26 Kaahu Decl. at ¶¶ 25-30;27
Kane Decl. at ¶¶ 32-35, 37-38, 41-43.28]
Warden Thomas acknowledges that the Native Hawaiian
hula class and the Native Hawaiian ritual class are held in the
Saguaro chapel, which only holds up to sixty people.
is the largest room available for Saguaro programs.
Reply Decl. at ¶¶ 47-48.]
The chapel
[Thomas
There are 179 inmates at Saguaro that
have registered as practitioners of the Native Hawaiian religion.
[Id. at ¶ 11.]
26
Plaintiff Hughes states that he has “never been allowed
to attend [the Hawaiian language class] regularly. [He] was told
by prison officials that [he] was on a waiting list for it over a
year ago.” [Hughes Decl. at ¶ 29.]
27
Plaintiff Kaahu states that he “suffered spiritual
injury” when he was in a mandatory program that was “held at the
same time as Native Hawaiian class.” [Kaahu Decl. at ¶ 31.]
28
Plaintiff Kane states that neither Red Rock nor Saguaro
allowed him to participate in daily, outdoor, group worship.
[Kane Decl. at ¶¶ 32-33, 43.]
56
Insofar as Defendants rely on the weekly classes as
support for their argument that the policy/custom of prohibiting
daily, outdoor, group worship for practitioners of the Native
Hawaiian religion is not a substantial burden, there is a genuine
issue of fact as to whether the Daily Outdoor Worship Plaintiffs
actually have access to those classes.
Further, to the extent
that their religious exercise requires daily, group worship
outdoors, Defendants’ policy/custom of providing weekly classes
indoors constitutes a complete prohibition of this religious
exercise.
The Ninth Circuit has stated:
We have little difficulty in concluding that an
outright ban on a particular religious exercise is
a substantial burden on that religious exercise.
See Murphy v. Mo. Dep’t of Corrs., 372 F.3d 979,
988 (8th Cir. 2004) (concluding that a ban on
“communal worship” substantially burdened inmate’s
religious exercise, thereby precluding summary
judgment); Meyer v. Teslik, 411 F. Supp. 2d 983,
989 (W.D. Wis. 2006) (holding that ban on group
worship substantially burdened inmate’s religious
exercise and noting that, “It is difficult to
imagine a burden more substantial than banning an
individual from engaging in a specific religious
practice”).
Greene v. Solano Cnty. Jail, 513 F.3d 982, 988 (9th Cir. 2008).
In light of this legal precedent and the evidence
presented in this case, this Court concludes that Defendants are
not entitled to summary judgment on the issue of whether their
policy/custom constitutes a substantial burden on the Daily
Outdoor Worship Plaintiffs’ religious exercise.
57
Defendants argue that, even assuming, arguendo, that
the Daily Outdoor Worship Plaintiffs can establish their prima
facie case, Defendants are entitled to summary judgment as to
Count XXII because Defendants’ policy/custom of prohibiting
daily, outdoor, group worship is the least restrictive means of
furthering a compelling governmental interest.
Defendants argue
that prison resources and scheduling do not permit them to allow
the practitioners of the Native Hawaiian religion from gathering
outdoors on a daily basis.
They argue that Saguaro uses six
additional staff for each of the four annual outdoor gatherings
for the practitioners of the Native Hawaiian religion.
Allowing
daily outdoor worship for them would require the permanent
addition of six staff persons.
Further, Saguaro would be
required to allow daily worship for the thirteen other religious
groups in the facility.
[Thomas Decl. at ¶¶ 38-39.]
Defendants
contend that “[t]here are not enough hours in the day to
accomplish daily worship for all religious groups on a daily
basis on top of chow time, head counts, and other types of
programming.”
[Id. at ¶ 39.]
“Prison security is a compelling governmental
interest.”
Greene, 513 F.3d at 988 (citing Cutter v. Wilkinson,
544 U.S. 709, 725 n.13 (2005)).
The Ninth Circuit, however, has
also stated:
“[N]o longer can prison officials justify
restrictions on religious exercise by simply
58
citing to the need to maintain order and security
in a prison.” Greene v. Solano County Jail, 513
F.3d 982, 989 (9th Cir. 2008). They now must
demonstrate that they “actually considered and
rejected the efficacy of less restrictive measures
before adopting the challenged practice.”
Warsoldier, 418 F.3d at 999.
Alvarez v. Hill, 518 F.3d 1152, 1156-57 (9th Cir. 2008)
(alteration in Alvarez).
The Daily Outdoor Worship Plaintiffs point to the fact
that Saguaro had a “faith-based pod” that allows Christian
inmates to participate in daily worship.
Responsive CSOF at ¶ 143.]
[Joint Pltfs.’
Defendants emphasize that the faith-
based pod was non-denominational and was open to inmates of any
faith.
[Defs.’ Reply, Defs. Response to Pltfs.’ Facts (doc. 466)
(“Defs.’ Reply CSOF”) at ¶ 143.]
It was a voluntary program that
used “Christian-based material,” i.e. curriculum, and “was
operated under Christian principles.
[Manley Responsive Decl.,
Exh. 23 (Excerpts of 4/4/13 Charles F. Miller Depo. (“Joint
Pltfs.’ Excerpts of Miller Depo.”)) at 223-24.]
Charles Miller,
who was the Saguaro Chaplain before his retirement, was an
advisor to the coordinator of the faith-based pod.
222-23.]
[Id. at 10,
The Daily Outdoor Worship Plaintiffs argue that he was
a Christian Chaplain.
See, e.g., Joint Pltfs.’ Excerpts of
Miller Depo. at 57 (Miller gave the sermon for “[q]uite a few of”
the Christian services); id. at 66-67 (Miller also provided
services at the Samoan-language Christian services).
59
This raises
the question of whether Saguaro considered a pod for
practitioners of the Native Hawaiian religion and whether that
would safely facilitate group worship for them.
The Daily Outdoor Worship Plaintiffs also submitted a
schedule of Saguaro’s religious services, dated April 18, 2009.
[Manley Responsive Decl., Exh. 24.]
The Native Hawaiian language
class is not listed on this schedule, and the Native Hawaiian
hula class and the Native Hawaiian rituals and ceremonies class
are on the same day.
There are three services for “Christian Non
Denominational,” two on Sunday and one on Saturday, as well as a
“Samoan Christian” service on Saturday.
[Id.]
Chaplain Miller
testified that the Samoan Christian service was the same as the
other Christian services, except that it was in the Samoan
language.
[Joint Pltfs.’ Excerpts of Miller Depo. at 66.]
Defendants submitted a schedule effective as of January 1, 2014.
[Thomas Reply Decl., Exh. A.]
There is now only one “Christian
Non Denominational” service on Sunday, but the other services
discussed above are the same.
Study” on Friday.
[Id.]
In addition, there is “Bible
Thus, there appears to be two, or
possibly three, days when Christian inmates can engage in group
worship, but only one day that inmate practitioners of the Native
Hawaiian religion can participate in what Saguaro deems as
religious services.
60
Plaintiffs also pointed to evidence that, at Red Rock,
there was a “Buddhist meditation” Monday through Friday from 7:00
to 8:15 a.m.
[Manley Responsive Decl., Exh. 13 (Excerpts of
4/3/13 Bruno Stolc Depo. (“Stolc Depo.”)) at 117; id., Exh. 16
(CCA Programs and Religious Services - AK-CA-HI-WA Units,
submitted as exhibit in Stolc’s Depo.).]
Defendants emphasize
that this program only involved one Buddhist inmate and was
discontinued within a few months.
The inmate performed self-
meditation while sitting still on the ground.
[Defs.’ Reply,
Decl. of Warden Stolc (“Stolc Reply Decl.”) at ¶¶ 7-9.]
Even
accepting Defendants’ explanation, the practice raises the
question of whether daily, outdoor worship for practitioners of
the Native Hawaiian religion, in small groups, is a viable means
to further the compelling governmental interest.
In light of this evidence, this Court finds that there
are genuine issues of fact as to whether Defendants’
policy/custom of prohibiting the practitioners of the Native
Hawaiian religion from participating in daily, outdoor, group
worship was the least restrictive means of furthering the
compelling governmental interest in prison security.
This Court
therefore DENIES Defendants’ Motion as to Count XXII.
2.
Federal Free Exercise Claim
The analysis of whether a prison regulation violates
inmates’ right to freely exercise their religion, as guaranteed
61
by the United States Constitution, is more deferential to the
government than the RLUIPA analysis.
“When a prison regulation impinges on
inmates’ constitutional rights, the regulation is
valid if it is reasonably related to legitimate
penalogical interests.” Turner v. Safley, 482
U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64
(1987); see also Ward v. Walsh, 1 F.3d 873, 876-77
(9th Cir. 1993) (holding that Turner still applies
to free exercise claims of prisoners after
Employment Division, Dep’t of Human Resources v.
Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed.
2d 876 (1990)). Turner sets forth four factors to
be balanced in determining whether a prison
regulation is reasonably related to legitimate
penalogical interests:
(1) Whether there is a “‘valid, rational
connection’ between the prison regulation and
the legitimate governmental interest put
forward to justify it”;
(2) Whether there are “alternative means of
exercising the right that remain open to
prison inmates”;
(3) Whether “accommodation of the asserted
constitutional right” will “impact . . .
guards and other inmates, and on the
allocation of prison resources generally”;
and
(4) Whether there is an “absence of ready
alternatives” versus the “existence of
obvious, easy alternatives.”
Turner, 482 U.S. at 89-90, 107 S. Ct. 2254
(quoting Block v. Rutherford, 468 U.S. 576, 586,
104 S. Ct. 3227, 82 L. Ed. 2d 438 (1984)).
Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008)
(alterations in Shakur).
62
Even viewing the record in the light most favorable to
the Daily Outdoor Worship Plaintiffs, Defendants have established
the first and third Turner factors.
In light of the dispute
regarding the accessibility of the Native Hawaiian classes, this
Court finds that there is a genuine issue of fact as to the
second Turner factor.
In light of the evidence discussed within
the RLUIPA least restrictive means analysis, this Court finds
that there is a genuine issue of fact as to the fourth Turner
factor.
This Court therefore DENIES Defendants’ Motion as to
Count I.
3.
Federal Equal Protection Claim
The Equal Protection Clause of the Fourteenth
Amendment provides that no State shall “deny to
any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV,
§ 1. This is “essentially a direction that all
similarly situated persons should be treated
alike.” City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985). An Equal Protection
claim can be stated in one of two ways. First, a
plaintiff can allege that “defendants acted with
an intent or purpose to discriminate against the
plaintiff based upon membership in a protected
class.” See Barren v. Harrington, 152 F.3d 1193,
1194–95 (9th Cir. 1998) (citing Washington v.
Davis, 426 U.S. 229, 239–40 (1976)). . . .
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).
“If the statute employs a suspect class (such as race, religion,
or national origin) or burdens the exercise of a constitutional
right, then courts must apply strict scrutiny, and ask whether
63
the statute is narrowly tailored to serve a compelling
governmental interest.”
Ball v. Massanari, 254 F.3d 817, 823
(9th Cir. 2001) (citing Adarand Constructors, Inc. v. Pena, 515
U.S. 200, 219, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995)).
Based upon the evidence discussed in connection with
the Daily Outdoor Worship Plaintiffs’ RLUIPA claim that
Defendants treated inmates of other religions more favorably,
this Court finds that there is a genuine issue of fact as to
whether Defendants acted with an intent or purpose to
discriminate against the Daily Outdoor Worship Plaintiffs because
of their religion.
Further, there is a genuine issue of fact as
to whether Defendants’ policy/custom is narrowly tailored to
serve the compelling governmental interest of prison security.
This Court therefore DENIES Defendants’ Motion as to Count VI.
4.
State Free Exercise Claim
The analysis of state free exercise claims is related
to the analysis of federal free exercise claims.
The Hawai`i
Supreme Court has stated:
In order to find an unconstitutional infringement
on Appellant’s religious practices [in violation
of the first amendment to the United States
Constitution and article I, section 4 of the
Hawai`i Constitution],
it [is] necessary to examine whether or not
the activity interfered with by the state was
motivated by and rooted in a legitimate and
sincerely held religious belief, whether or
not the parties’ free exercise of religion
had been burdened by the regulation, the
64
extent or impact of the regulation on the
parties’ religious practices, and whether or
not the state had a compelling interest in
the regulation which justified such a burden.
State ex rel. Minami v. Andrews, 65 Haw. 289, 291,
651 P.2d 473, 474 (1982). Accord Wisconsin v.
Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d
15 (1972). . . .
. . . .
As a preliminary matter, “it is necessary in a
free exercise case for one to show the coercive
effect of the [law] as it operates against him in
the practice of his religion.” School District of
Abington Township v. Schempp, 374 U.S. 203, 223
[83 S. Ct. 1560, 1572, 10 L. Ed. 2d 844] (1963).
Accord Thomas v. Review Board, Indiana Employment
Security Division, 450 U.S. 707, 717-18 [101 S.
Ct. 1425, 1431-32, 67 L. Ed. 2d 624] (1981);
Koolau Baptist Church v. Department of Labor, 68
Haw. 410, 418], 718 P.2d [267,] 272 (1986). . . .
. . . Appellants must show a “substantial burden”
on religious interests. Koolau, 68 Haw. at [418],
718 P.2d at 272; Wisconsin v. Yoder, 406 U.S. at
218 [92 S. Ct. at 1534]. . . .
Korean Buddhist Dae Won Sa Temple of Hawaii v. Sullivan, 87
Hawai`i 217, 247, 953 P.2d 1315, 1345 (1998) (alterations in
Sullivan) (quoting Dedman v. Board of Land & Natural Resources,
69 Haw. 255, 260-61, 740 P.2d 28, 32 (1987), cert. denied, 485
U.S. 1020, 108 S. Ct. 1573, 99 L. Ed. 2d 888 (1988)).
For the same reasons as those discussed in connection
with the Daily Outdoor Worship Plaintiffs’ RLUIPA claim and their
federal free exercise claim, this Court finds that there are
genuine issues of material fact as to Plaintiffs’ state free
65
xercise claim regarding daily, outdoor, group worship.29
This
Court therefore DENIES Defendants’ Motion as to Count XI.
5.
State Equal Protection Claim
The strict scrutiny standard also applies to
Plaintiffs’ state equal protection claim regarding daily,
outdoor, group worship.
See Nagle v. Bd. of Educ., 63 Haw. 389,
392, 629 P.2d 109, 111-12 (1981).
For the same reasons set forth
in connection with the Daily Outdoor Worship Plaintiffs’ federal
equal protection claim, this Court finds that there are genuine
issues of material fact as to Plaintiffs’ state equal protection
claim regarding daily, outdoor, group worship.
This Court
therefore DENIES Defendants’ Motion as to Count XVI.
B.
Claims Regarding the Observance of Makahiki
1.
RLUIPA
This Court has found that the observance of the opening
and closing days of the Makahiki season is a religious exercise
for purposes of RLUIPA.
This Court has found that the following
components of the observance of the opening and closing days of
the Makahiki season are religious exercises: an outdoor sunrise
ceremony, prayers, chanting, dancing, offerings, cleansing
ceremonies, `awa drinking ceremonies, games and competitions,
29
This Court denied Defendants’ motion to dismiss for
failure to exhaust as to Plaintiffs’ state law claims because the
Prison Litigation Reform Act of 1996 (“PLRA”) does not apply to
state law claims. 4/11/13 Order, 2013 WL 1568425, at *9 (citing
42 U.S.C. § 1997e(a)).
66
ceremonial feasts, and sacramental offerings of special foods to
honor Lono.
Although this Court has found that there are genuine
issues of material fact as to other components of the Makahiki
celebrations and as to the specific content and duration of the
components, for purposes of Defendants’ Motion, this Court will
assume that the components of the Makahiki observance, as
Plaintiffs describe them, are religious exercises for purposes of
RLUIPA.
Warden Thomas describes Saguaro’s Makahiki program and
policies as follows:
15. General population inmates who have
appropriately and formally designated their
religious preference as Native Hawaiian religious
practitioners, and who do not present safety and
security threats to facility operations, are
permitted to attend the opening and closing
Makahiki celebrations at [Saguaro] . . . .
16. The general population Native Hawaiian
religious practitioners who have attended the
Makahiki ceremony preparation classes are
permitted to play religiously significant roles in
the celebration.
17. Those who fail to attend the preparation
classes are not permitted to play religiously
significant roles in the celebration, but are
still permitted to observe the ceremonies and
participate in the chants and prayers to the level
of mastery achieved by that particular inmate.
18. The Makahiki ceremonies begin at
approximately sunrise and last until two or three
o’clock in the afternoon. . . .
19. . . . [T]he ceremonies at [Saguaro] are
performed outside on one of the facility
recreation yards. The recreation yard also
67
accommodates . . . multiple practice sessions
leading up to these celebrations. During these
activities, the recreation yard is closed to other
inmate populations.
. . . .
21. At [Saguaro], general population inmates
celebrating Makahiki are permitted to construct an
altar to Lono with materials appropriate for the
correctional setting – but not of rocks.
22. Ceremonial food offerings that are
provided by the Volunteer Spiritual Advisor are
also permitted, but only one or two pieces of this
sacramental food offering are consumed by the
inmates. Upon the advice of Advisor Haili, this
is appropriate for inmates to practice the Native
Hawaiian religion in the correctional setting.
23. While the inmates are permitted to
celebrate a communal meal after the service, no
special menu is provided as none is required of
the religion.
24. Upon the advice of Advisor Haili, this
is appropriate for inmates to practice the Native
Hawaiian religion in the correctional setting
because it is the communal aspect of the meal that
is religiously significant – not what foods are
on the menu.
25. While the regular facility menu is
served to the inmates celebrating the opening or
closing of the Makahiki, additional items are
added to the menu such as extra rice or a special
dessert such as pudding or cake. This is not
required by the Native Hawaiian religion, but is
provided by CCA prison officials as a show of
support for the celebrations.
[Thomas Reply Decl. at ¶¶ 15-25.]
In addition, as previously
noted, Haili typically travels to Saguaro for the opening and
closing celebrations of the Makahiki season.
Excerpts of Haili 5/31/13 Depo. at 288.]
68
[Defs.’ Responsive
Based on Plaintiffs’ demands for the Makahiki
celebrations, [Second Amended Complaint at ¶ 49,] this Court
agrees with Defendants that Plaintiffs merely ask this Court to
order Defendants to require Saguaro, in addition to what Saguaro
is currently providing: to comply with specific time lengths for
components of the Makahiki celebrations; to add a procession; and
to provide specific ceremonial foods during the ceremonial feast.
First, it appears that a procession was included in a 2013
Makahiki ceremony, although the genesis of the procession was
that Saguaro instructed the group to move because that recreation
yard was needed for another group of inmates.
[Defs.’ CSOF,
Decl. of Jamie D. Guzman (“Guzman Decl.”), Exh. 1 (Excerpts of
Trans. of 5/31/13 Depo. of Ka`iana Haili (“Defs.’ Excerpts of
Haili 5/31/13 Depo.”) at 318.30]
Defendants have apparently
taken the position that the procession is now a regular part of
the Makahiki celebrations.
[Mem. in Supp. of Defs.’ Motion at 5
(“Advisor Haili has testified that he is satisfied with the
schedule and timing of the ceremonies as well as the ability to
perform a procession.”).]
This Court will consider Defendants’
representation as a binding admission.
Thus, the dispute as to
Plaintiffs’ request for prospective relief as to the RLUIPA claim
30
Exhibit 1 to the Guzman Declaration also includes
Defendants’ excerpts of the transcript of the May 8, 2013
deposition of Ka`iana Haili (“Defendants’ Excerpts of Haili
5/8/13 Deposition”).
69
regarding Makahiki celebrations is limited to the duration and
content of the recognized components of the Makahiki celebration.
Plaintiffs have not identified any evidence that their
religious exercise has suffered substantial burden because the
components of the Makahiki celebrations at Saguaro are shorter
than requested in the Second Amended Complaint.
Further, they
have not identified any evidence that their religious exercise
has suffered substantial burden because the specific foods
provided for the sacrament and for the feast are determined based
on availability at the facility as opposed to the foods listed in
the Second Amended Complaint.
This Court therefore finds that
there is no genuine issue of fact as to the substantial burden
inquiry in the RLUIPA analysis.
Plaintiffs thus cannot establish
their prima face case as to their RLUIPA claim regarding the
observance of Makahiki, and Defendants are entitled to summary
judgment.
Defendants’ Motion is GRANTED as to Plaintiffs’ claims
in Count XXIII.
2.
Free Exercise Claims
As this Court previously recognized, the federal free
exercise analysis and the state free exercise analysis are more
deferential than the RLUIPA analysis.
Insofar as this Court has
concluded that Plaintiffs’ RLUIPA claim regarding the observance
of Makahiki fails, this Court also concludes that the Joint
70
Plaintiff’s federal free exercise claim and state free exercise
claim regarding the observance of Makahiki fail as a matter of
law.
This Court therefore GRANTS Defendants’ Motion as to Count
II and Count XII.
3.
Equal Protection Claims
Plaintiffs have not presented any evidence that
Defendants treated inmates of other religions more favorably in
comparable situations, i.e. there is no evidence that other
inmate religious groups have comparable annual ceremonies and
Defendants provided those ceremonies with duration and content
accommodations that Defendants denied Plaintiffs.
This Court
therefore concludes that Plaintiffs’ federal equal protection
claim and state equal protection claim based on the observance of
Makahiki fail as a matter of law.
Defendants’ Motion is GRANTED
as to Plaintiffs’ claims in Count VII and Count XVII.
C.
Claims Regarding Access to Sacred Items
Saguaro has a list of the types of religious items that
all inmates are permitted to keep in their cells (“the Retention
List”).
Pursuant to the Retention List, practitioners of the
Native Hawaiian religion may keep the following items in their
cells: “sea salt, a ti leaf lei, coconut oil, a lava lava and an
amulet.”
[Thomas Decl. at ¶ 52.]
In addition, they may keep
“written religious materials to include books, genealogy, chants
and prayers.
General population Native Hawaiian practitioners
71
may also check out a ukulele from the chapel.”
Decl. at ¶ 122.]
[Thomas Reply
Saguaro “is working to identify a vendor for
the amulets and is also working to locate a vendor for coconut
oil.”
[Thomas Decl. at ¶ 52.]
In addition,
126. For formal communal religious ceremonies
conducted at [Saguaro], the following sacred items
are available for use and stored in the prison
chapel: coconut bowls, koa bowls, woven bowls,
uli`uli, maracas, quido, wai ohe (bamboo), kala`au
(brown sticks), egg shakers, cloth mat, kukui nut
leis, koa sticks, leihulu, twine, kukui nuts and
coconut fiber, sponge brushes, raffia, bamboo
stamps, Hawaiian salt, blankets, lama wood and
traditional Native Hawaiian dress.
127. In addition to the above, Native
Hawaiian religious practitioners at [Saguaro] are
permitted access to an extensive library of Native
Hawaiian religious and cultural texts for
checkout. CDs, DVDs, cassette tapes, flash cards,
video tapes and a dictionary are also available to
the practitioners. . . .
[Thomas Reply Decl. at ¶¶ 126-27.]
Plaintiffs argue that their lack of daily access to
malo, kihei, pā`ū, kūpe`e, lei, amulets/personal sacred objects,
pa`akai, kala, `ōlena, ti leaf, and moena, and their lack of
access to specific items for group worship activities, see items
listed supra section II.C.3., violates their rights under RLUIPA
and the federal and state constitutions.
1.
RLUIPA
This Court has found that Plaintiffs’ access to the
sacred items identified in their RLUIPA claim is a religious
exercise.
This Court will first address the items that
72
Plaintiffs argue that they must have daily access to, i.e., they
argue that Defendants must allow Plaintiffs to keep these items
in their cells.
a.
Daily Access Items
Ti leaf lei and pa`akai (sea salt) are allowed pursuant
to the Retention List, and Plaintiffs cannot establish a
substantial burden as to those items.
Defendants are therefore
entitled to summary judgment as to the portion of Plaintiffs’
RLUIPA claim based on access to ti leaf lei and pa`akai.
Defendants acknowledge that an amulet and coconut oil
are permitted pursuant to the Retention List, but those items are
not available because Saguaro has not yet identified vendors that
can provide those items.
Insofar as Defendants admit Plaintiffs
can possess these items in their cells but do not have current
access these items, and in light of Plaintiffs’ declarations,
this Court will assume, for purposes of Defendants’ Motion, that
Plaintiffs’ religious exercise is substantially burdened by their
lack of daily access to a personal amulet and to coconut oil.
Defendants have a compelling interest in maintaining prison
security, and certain types of amulets may be used as weapons or
to conceal contraband, and certain types of oils may be flammable
or may be used in an alcohol-making process.
Even if coconut oil
itself is not flammable and does not produce alcohol, there is a
danger that an unapproved provider may try to mix prohibited
73
liquids with the coconut oil.
Plaintiffs have not identified any
evidence that they need individually unique sources of coconut
oil.
Thus, this Court finds that requiring an approved vendor
for coconut oil is the least restrictive means available.
Defendants are therefore entitled to summary judgment as to the
portion of Plaintiffs’ RLUIPA claim based on the lack of daily
access to coconut oil.
Plaintiffs, however, have submitted evidence that a
religiously significant amulet must come from a kahu, kumu, or
kupuna, not a vendor.
Further, there is no evidence that
Defendants have considered whether a vendor could provide amulets
with individual significance.
For example, could a vendor design
a Saguaro-approved amulet according to a design provided by a
kahu, kumu, or kupuna?
There is also no evidence as to whether
Defendants considered a case-by-case inspection system for
amulets that the Joint Plaintiffs obtain directly from a kahu,
kumu, or kupuna.
This Court therefore finds that there are
genuine issues for trial as to the least restrictive means
analysis of Plaintiffs’ lack of daily access to a personal
amulet.
Defendants are not entitled to summary judgment as to
the portion of Plaintiffs’ RLUIPA claim regarding daily access to
personal amulets.
Defendants presented evidence that Saguaro allows
practitioners of the Native Hawaiian religion to keep malo and
74
kihei in the prison chapel for use during ceremonies.
According
to Defendants, Haili advised the facility that those items are
not for daily personal worship.
The malo and kihei are “kept in
a bag marked with the inmate’s name.”
[Thomas Decl. at ¶ 51.]
Although Plaintiffs stated that they sincerely believe
that they need daily access to malo and kihei, they state that
their religious beliefs would be violated if they were forced to
share their malo and kihei.
See, e.g., Davis Decl. at ¶¶ 30, 35.
There is no evidence that Plaintiffs are being asked to share
communal malo and kihei.
Based on the evidence that Saguaro
maintains inmates’ personal malo and kihei in the chapel, this
Court finds that the burden on Plaintiffs’ religious exercise is
not substantial.
Defendants are therefore entitled to summary
judgment as to the portion of Plaintiffs’ RLUIPA claim based on
the lack of daily access to malo and kihei.
Plaintiffs state that malo, kihei, and pā`ū are
spiritually significant because mana attaches to certain items of
clothing, and kūpe`e and lei are spiritually significant because
wearing them shows respect for the gods.
at ¶ 44.
See, e.g., Davis Decl.
There is, however, no evidence of the specific role
pā`ū plays that is different from the role of malo and kihei, nor
is there evidence of the specific role that kūpe`e plays that is
different from the role of lei.
supra.
See discussion of ti leaf lei
In addition, kala (seaweed) is not included on the
75
Retention List, but Defendants produced evidence that Native
Hawaiian practitioners are allowed access to various types of
vegetation for communal use.
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”).
[Guzman Decl. at ¶ 14, Exh. 12.]
The list
states, inter alia: “VEGETATION IS BROUGHT IN AS NEEDED TO THE
FACILITY FOR THE CEREMONIES, THEN TAKEN OUT OF THE FACILITY WHEN
CEREMONIES ARE OVER.”
original).]
[Id., Exh. 12 at 3 (emphasis in
Plaintiffs have not presented any evidence
contradicting Defendants’ evidence that they may have various
forms of vegetation, including kala, brought into Saguaro for
ceremonial use.
Thus, they argue that ceremonial use is not
enough, and the lack of daily access to kala is a substantial
burden on their religious exercise.
Defendants contend that: “Altering [the Retention List]
to include all the items Plaintiffs allege in the Second Amended
Complaint would have a negative impact on prison resources, as it
would require more frequent cell searches for modified weapons
and contraband, and potentially lead to increased bartering and
violence among inmates.”
[Thomas Decl. at ¶ 52.]
Defendants
also contend that inmates’ possessions must be limited because
there is limited space in the inmate cells.
76
119. Inmate cells at [Saguaro] measure 7 foot
by 14 foot and are designed for double occupancy.
Cells are outfitted with two inmate bunks, a sink,
a toilet and a small table with two stools.
120. Inmate personal property is limited due
to available space in the cell and for safety,
fire and health considerations. [Saguaro] inmates
are restricted to personal property that fits in
two facility-issued storage boxes that are 20
inches long, 15 inches wide and 11 inches deep.
All personal property including clothes, hygiene,
commissary, books, personal items and legal
materials must be stored in these boxes. . . .
[Thomas Reply Decl. at ¶¶ 119-20.]
This Court finds that there are genuine issues of fact
as to the question of whether Plaintiffs’ lack of daily access to
pā`ū, kūpe`e, and kala constitutes a substantial burden on their
religious exercise.
Those issues, however, are not material to
the disposition of Defendants’ Motion because, even assuming
arguendo that the lack of daily access to those items is a
substantial burden on Plaintiffs’ religious exercise, Defendants
have a compelling interest in the inmates’ safety and in prison
security, and it is reasonable for Saguaro to limit inmates’
possessions to further those interests.
Even viewing the record
in the light most favorable to Plaintiffs, considering the incell possession of lava lava and lei, the storage of personal
malo and kihei in the chapel, and the permission to use available
vegetation for ceremonies, this Court finds that the
policy/custom of prohibiting in-cell possession of pā`ū, kūpe`e,
and kala is the least restrictive means available.
77
Defendants
are therefore entitled to summary judgment as to the portion of
Plaintiffs’ RLUIPA claim based on the lack of daily access to
pā`ū, kūpe`e, and kala.
As to the items the Plaintiffs have argued are
necessary for purification and cleansing, pa`akai (sea salt) and
ti leaf lei are available.
Defendants are therefore entitled to
summary judgment as to the portion of Plaintiffs’ RLUIPA claim
based on the lack of daily access to pa`akai and ti leaf.
Warden Thomas stated that ginger is prohibited because
it can be “used to ferment and manufacture alcohol.”
Reply Decl. at ¶ 117.]
[Thomas
This Court finds that there are genuine
issues of fact as to the question of whether Plaintiffs’ lack of
daily access to `ōlena (yellow ginger) constitutes a substantial
burden on Plaintiffs’ religious exercise.
These issues, however,
are not material to the disposition of Defendants’ Motion
because, even assuming arguendo that Plaintiffs can establish the
substantial burden factor, Defendants have a compelling interest
in maintaining safety and security, and the ban on ginger is the
least restrictive means available to further that interest.
Defendants are therefore entitled to summary judgment as to the
portion of Plaintiffs’ RLUIPA claim based on the lack of daily
access to `ōlena.
As to moena (woven floor mats made from lauhala, grass,
or other natural fibers), Warden Thomas stated:
78
As to the possession of grass mats in-cell by
Native Hawaiian practitioners, I have considered
but rejected such personal in-cell possession
where grass mats, made of grass, present a fire
hazard because of the flammable nature of dried
grass, which is an increased concern as compared
to Muslim prayer rugs that are rugs – not made of
grass. Grass mats, because of their lightweight
nature and material makeup, pose an increased risk
– as compared to Muslim prayer rugs – in being
used by inmates to cause slip and fall hazards to
prevent officer entry into cells in emergency
situations.
[Thomas Reply Decl. at ¶ 125.]
This Court finds that there are
genuine issues of fact as to the question of whether Plaintiffs’
lack of daily access to moena constitutes a substantial burden on
Plaintiffs’ religious exercise.
These issues, however, are not
material to the disposition of Defendants’ Motion because, even
assuming arguendo that Plaintiffs can establish the substantial
burden factor, Defendants have a compelling interest in
maintaining safety and security, and the ban on mats made of
grass, or similar materials, is the least restrictive means
available.
Defendants are therefore entitled to summary judgment
as to the portion of Plaintiffs’ RLUIPA claim based on the lack
of daily access to moena.
b.
Communal Worship Items
Plaintiffs assert that the remainder of the items at
issue in Count XXIV are necessary for group worship.
According
to Warden Thomas, two of those items, lama wood and `apu (coconut
shell bowls), are available for formal communal religious
79
ceremonies and are stored in the Saguaro chapel.
Further,
Plaintiffs also refer to kapa (cloth), but cloth mats and
blankets are also available at the chapel.
at ¶ 126.]
[Thomas Reply Decl.
Plaintiffs also refer to ti shoots, but they have not
identified evidence of what ti shoots are specifically used for
(as opposed to what ti leaf is used for).
As previously noted,
the Saguaro Chapel Artifacts List states that various forms of
vegetation may be brought into Saguaro for ceremonial use.
[Guzman Decl., Exh. 12 at 3.]
Further, Plaintiffs have not
presented any evidence to contradict Defendants’ evidence that ti
shoots may be brought into the facility for ceremonial use.
Defendants are therefore entitled to summary judgment as to the
portion of Plaintiffs’ RLUIPA claim based on the lack of access
to lama wood, kapa, `apu, and ti shoots for group worship.
Most of the other communal worship items that
Plaintiffs seek access to are, or are similar to, musical
instruments - drums, flutes, and horns.
Warden Thomas stated
that “a pole,[31] flute or horn becomes a sharpened spear or
shank” and drums can be used to store contraband.
at ¶ 53.]
[Thomas Decl.
Warden Thomas stated that the Saguaro chapel offers
other musical instruments, including, inter alia, ukulele,
maracas, and egg shakers.
[Thomas Reply Decl. at ¶¶ 122, 126.]
31
One of the communal items at issue in Count XXIV is a
kāhili, a pole with a decorated, cylindrical top.
80
These items “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.
[Id. at ¶ 126.]
Defendants presented other evidence that Native
Hawaiian drums and flutes are among the items available to
Plaintiffs in the Saguaro chapel.
The specific drums and flutes
named 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.
[Guzman Decl., Exh. 12.]
The list, however, includes a
“PUONE/NOSE FLUTE” and a “DRUM.”
original).]
[Id. at 2-3 (emphases in
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.
81
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 acknowledge that some of the sacred items
which they seek access to are available for communal use in the
Saguaro chapel.
See, e.g., Davis Decl. at ¶ 33.
Plaintiffs,
however, have not presented evidence identifying which of the
items are available and which are not.
Specifically, Plaintiffs
did not present evidence that pahu (tree stump drum), ipu (gourd
drum), ipu heke (double gourd drum), `ohe kā`eke`eke (percussion
instrument), pūniu (small knee drum), `ohe hano ihu (bamboo nose
flute), and comparable music instruments, are prohibited.
Viewing the current record in the light most favorable
to Plaintiffs, this Court finds that there are no genuine
disputes as to the following facts: Defendants allow Native
Hawaiian drums and flutes, or comparable items, to be available
for communal use in the Saguaro chapel; but, at times the items
may not be available because, for example, existing items were
broken or requested items have not been donated.
This Court
finds that there are genuine issues of fact as to the question of
whether the lack of regular communal access to these items is a
substantial burden on Plaintiffs’ religious exercise.
82
These
issues, however, are not material to the disposition of
Defendants’ Motion because, even if Plaintiffs could establish
the substantial burden factor, they have not identified any
evidence to dispute Defendants’ evidence that Saguaro limits
access to these items to only communal use in the chapel, when
functional items are available, 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 pahu, ipu, ipu heke, `ohe
kā`eke`eke, and pūniu, when functional items are available, is
the least restrictive means of furthering compelling government
interests.
This Court, however, cannot find, viewing the current
record in the light most favorable to Plaintiffs, that the
custom/policy of allowing only weekly communal access in the
chapel to items comparable to the `ohe hano ihu (bamboo nose
flute) is the least restrictive means of furthering the
compelling government interests.
Plaintiffs point out that,
although a Native Hawaiian practitioner is not allowed to keep a
`ohe hano ihu in his cell, an inmate who practices Drudism is
allowed to keep a wooden flute in his cell.
[Joint Pltfs.’
Responsive CSOF, Decl. of Richard Subia (“Subia Decl.”) at
83
¶ 74.32]
Such an item presents the same space and security
concerns as the `ohe hano ihu.
This Court agrees that the
evidence of accommodations for similar instruments for other
religious groups raises genuine issues of material fact as to the
question of whether Saguaro’s prohibition of the `ohe hano ihu is
the least restrictive means available.
Plaintiffs, however, have not presented evidence
raising a triable issue of fact as to the question of whether the
prohibition of the Native Hawaiian horns and horn-like items is
the least restrictive means available to further the compelling
interest in safety and security.
This Court therefore finds that
there is no dispute of fact that those items can be used as
weapons, and this Court finds that the complete prohibition of
the pū kani (conch shell) and pū`ohe (bamboo shell horn) in the
chapel is the least restrictive means available to further the
compelling interest in prison safety and security.
Similarly,
the kāhili (pole with cylindrical top) may also be used as a
weapon, and Plaintiffs have not presented evidence raising a
triable issue of fact as to the question of whether the
prohibition of kāhili in the chapel is the least restrictive
means available.
This Court therefore finds that there is no
32
Subia is Plaintiffs’ expert witness. [Subia Decl. at
¶ 2.] Subia has “26 years of experience with the California
Department of Corrections and Rehabilitation (CDCR) encompassing
administration, management, supervision, and line-staff duties
and responsibilities.” [Id. at ¶ 4.]
84
dispute of fact that the kāhili can be used as a weapon, and its
complete prohibition in the chapel is the least restrictive means
available to further the compelling interest in prison safety and
security.
c.
Summary of RLUIPA Sacred Items Claim
This Court DENIES Defendants’ Motion as to the portions
of Count XXIV based on Plaintiffs’ lack of daily access to
personal amulets and `ohe hano ihu (bamboo nose flute), and
GRANTS Defendants’ Motion as to all other items at issue in Count
XXIV.
2.
Federal Free Exercise Claim
As to the portion of Plaintiffs’ federal free exercise
claim based on the lack of daily access to personal amulets and
`ohe hano ihu, this Court finds that Defendants have not
established the second and fourth factors of the Turner analysis.
This Court therefore concludes that Defendants are not entitled
to summary judgment as to the portions of Count III based on lack
of daily access to a personal amulet and to `ohe hano ihu.
As to the remainder of Count III, insofar as the
federal free exercise analysis is more deferential than the
RLUIPA analysis, the grant of summary judgment to Defendants as
to the remainder of Count XXIV also requires summary judgment in
favor of Defendants as to the remainder of Count III.
85
3.
Federal Equal Protection Claim
As to Count VIII, Plaintiffs argue that the denial of
access to the Native Hawaiian practitioners’ sacred items
violates their federal equal protection rights because Defendants
authorize substantially similar items for inmates of other
faiths.
Plaintiffs have identified evidence that Saguaro
approved less restrictive in-cell retention lists for Wiccan
inmates, Muslim inmates, and Asatru inmates.
[Joint Pltfs.’
Responsive CSOF at ¶ 137 (citing Pltfs.’ Excerpts of Miller Depo.
at 138-57; Manley Responsive Decl., Exhs. 25, 41, 56; id., Exh.
81 at Nos. 1, 3, 5-6, 8).]
As discussed supra, Saguaro allows
inmates who practice Drudism to keep a wooden flute in their
cells.
Inmate practitioners of the Native Hawaiian religion have
access to drums for communal use, as do inmates who practice
other religions, and Plaintiffs have not identified any evidence
that Defendants allow inmates of other religions to have access
to items that are comparable to ‘olena and that could also be
used to make alcohol.
Defendants have presented evidence explaining the
reasons why some of the comparable items are allowed for other
religions.
For example, as discussed previously, moena are fire
and slip-and-fall hazards, but Muslim prayer rugs are not because
of the difference in the materials.
Defendants, however, have
not presented evidence addressing all of the distinctions.
86
For
example, Defendants have not established a reason why Muslim
inmates have access to prayer oils, but the Native Hawaiian
practitioners do not have access to coconut oil because of
difficulties finding an appropriate vendor.
Defendants also have
not explained the different policies/customs regarding flutes.
This Court therefore finds that there are genuine
issues of fact as to the question of whether any difference in
the restrictions on the Native Hawaiian practitioners’ in-cell
retention list and in the restrictions on their communal worship
items, as compared to the restrictions for inmates of other
religions, survives strict scrutiny.
Thus, Defendants are not
entitled to summary judgment as to Plaintiffs’ federal equal
protection claim regarding access to sacred items.
The only
exceptions to this ruling are the portions of Count VIII
regarding the following items, because Saguaro allows Plaintiffs
to have the access requested in the Second Amended Complaint: ti
leaf, lei, block of lama wood, pa`akai (sea salt), kapa (cloth),
and `apu (coconut shell bowl).
In addition, this Court CONCLUDES
that Defendants have established that the prohibition of kala
(seaweed), ti shoots, ‘olena (yellow ginger), pahu (tree stump
drum), ipu (gourd drum), ipu heke (double gourd drum), `ohe ka
eke`eke (percussion instrument), pu niu (small knee drum), and
moena (floor mats made of woven lauhala, grasses, or natural
fibers) survives strict scrutiny.
87
This Court therefore GRANTS Defendants’ Motion as to
the portions of Plaintiffs’ federal equal protection claim
regarding: ti leaf, lei, block of lama wood, pa`akai, kapa, `apu,
kala, ti shoots, ‘olena, pahu, ipu, ipu heke, `ohe ka eke`eke,
pu niu, and moena.
Defendants’ Motion is DENIED as to the
remaining portions of Count VIII.
4.
State Free Exercise Claim
As to the portions of Count XIII based on the denial of
daily access to personal amulets and `ohe hano ihu (bamboo nose
flute), for the same reasons as those discussed in connection
with Count XXIV and Count III, this Court finds that there are
genuine issues of material fact as to the portions of Plaintiffs’
state free exercise claim regarding these items.
This Court
therefore DENIES Defendants’ Motion as to those portions of
Count XIII.
As to the remainder of Count XIII, insofar as the state
free exercise analysis is more deferential than the RLUIPA
analysis, the grant of summary judgment to Defendants as to the
remainder of Count XXIV also requires summary judgment to
Defendants as to the remainder of Count XIII.
5.
State Equal Protection Claim
The strict scrutiny standard also applies to
Plaintiffs’ state equal protection claim regarding access to
sacred items.
For the same reasons as those set forth in the
88
analysis of Plaintiffs’ federal equal protection claim, this
Court finds that there are genuine issues of material fact as to
Plaintiffs’ state equal protection claim regarding access to
sacred items, except as to the items that Saguaro allows and as
to kala, ti shoots, ‘olena, pahu, ipu, ipu heke, `ohe ka eke`eke,
pu niu, and moena.
This Court therefore GRANTS Defendants’
Motion as to the portions of Plaintiffs’ state equal protection
claim regarding: ti leaf, lei, block of lama wood, pa`akai (sea
salt), kapa (cloth), `apu (coconut shell bowl), kala (seaweed),
ti shoots, ‘olena (yellow ginger), pahu (tree stump drum), ipu
(gourd drum), ipu heke (double gourd drum), `ohe ka eke`eke
(percussion instrument), pu niu (small knee drum), and moena
(floor mats made of woven lauhala, grasses, or natural fibers).
Defendants’ Motion is DENIED as to the remaining portions of
Count XVIII.
D.
Claims Regarding Access to a
Sacred Outdoor Space with a Stone Altar
The Second Amended Complaint alleges that: “A critical
tenet of Native Hawaiian religion essential to the expression of
Plaintiffs’ faith is to establish an out-of-doors altar composed
of at least two spiritually significant stones as a focal point
for specific religious protocol activities.”
Complaint at ¶ 51.]
[Second Amended
Insofar as this Court has already addressed
Plaintiffs’ claims regarding the ability to engage in daily group
worship outdoors, this Court construes Plaintiffs’ claims
89
regarding access to a sacred outdoor space as addressing whether
Defendants must provide Plaintiffs with a designated outdoor
space with a permanent stone altar.
The altar that Plaintiffs
seek “should be of interlinking rocks, approximately 4 feet by 4
feet in dimension.”
[Pltfs.’ CSOF at ¶ 68 (citing Pltfs.’
Excerpts of Haili 5/31/13 Depo. 297-98).]
Haili testified that
permanently affixing or connecting the rocks together, such as
with cement, would be offensive to the Native Hawaiian religion.
[Defs.’ Excerpts of Haili 5/31/13 Depo. at 299-300.]
1.
RLUIPA
The Outdoor Altar Plaintiffs have established that
using a permanent space with a stone altar is a religious
exercise.
Viewing the record in the light most favorable to the
Outdoor Altar Plaintiffs, this Court finds, for purposes of
Defendants’ Motion, that the denial of access to a permanent
place with a stone altar constitutes a substantial burden on the
Outdoor Altar Plaintiffs’ religious exercise.
Warden Thomas has stated:
Providing inmates access to essentially, a rock
pile, is providing inmates access to a pile of
weapons that can be used to severely, permanently
and fatally injure inmates or facility personnel.
This risk is unreasonable and would constitute an
obvious unsound correctional practice if
permitted. One boulder placed on an existing
recreation yard, as Plaintiffs recently suggest,
would still be dangerous, there is nothing to keep
other inmates from invading the area, angering the
practioners [sic] and causing inmate conflict,
fights and assaults over religious territory.
90
111. In sum, it is sound correctional
practice and the standard of care in a
correctional setting to preclude the introduction
of a loose rock altar into a secure facility, in
order to prevent serious injury or death to
inmates and staff. Loose rocks in a prison yard
pose a danger as a weapon. I specifically
considered the danger of rocks utilized in outdoor
altars and chose not to permit them for this
reason. At other facilities I have worked,
inmates have been beaten in the head, or legs been
broken by rocks. And at [Saguaro], an inmate’s
leg was broken with a rock the size of one’s
hand. . . .
[Thomas Reply Decl. at ¶¶ 110-11.]
Thus, Defendants have
submitted evidence that Saguaro has prohibited the Outdoor Altar
Plaintiffs’ stone altar because it is necessary for its
compelling governmental interest in prison safety and security.
The Outdoor Altar Plaintiffs argue that the prohibition
of their altar is not the least restrictive means available to
further the compelling interest in safety, as evidenced by the
fact that Saguaro allows the Native American inmates to utilize
rocks in their sweat lodge ceremonies.
Warden Thomas responds:
The allowance and restriction are distinguishable.
The rocks used in the sweat lodge ceremony are
heated over fire and then water is poured over
them to create steam in the sweat lodge for
purification purposes. Because the rocks used in
the sweat lodge ceremony are heated over fire,
there is less risk that an inmate will pick up the
fire heated rocks, severely burning his hands, in
order to use the rock as a weapon.
[Id. at ¶ 109.]
Further, the sweat lodge ceremony occurs only
quarterly and has significant security restrictions.
¶¶ 101-07.]
[Id. at
A “federally approved Native American volunteer”
91
leads the ceremonies, which “increases the likelihood that the
unobservable activities in the sweat lodge are sincere and not
used to traffic contraband, plan disturbances, coordinate gang
activity or plan or carry out assaults of inmates or personnel.”
[Id. at ¶ 103.]
One or two correctional officers staff the area
outside the sweat lodge, and the attendance ranges from ten to
twenty inmates, who are searched before entering and after
leaving the ceremony to prevent trafficking of contraband and/or
weapons.
In addition, Saguaro staff utilizes video surveillance.
[Id. at ¶¶ 104-07.]
In contrast, the Outdoor Altar Plaintiffs
seek daily access to an altar of interlocking, but unaffixed,
rocks.
Even viewing the record in the light most favorable to
Plaintiffs, this Court finds that the Native American use of
rocks during their sweat lodge ceremonies is distinguishable from
the access to the rock altar that the Outdoor Altar Plaintiffs
seek.
The Outdoor Altar Plaintiffs also present evidence that
the Native American inmates had an outdoor area for smudging.
Chaplain Miller described smudging as follows: “They used to
take, like a grass and they ignite it, and then they use the
smoke from that as part of their religious exercise.”
Excerpts of Miller Depo. at 184.]
[Pltfs.’
Other inmates do not generally
go into the yard used for the smudging ceremony because the yard
is “so small that nobody else would really fit in it.”
92
[Id. at
186.]
There is no evidence that the smudging ceremony involved
the use of loose rocks that could be used as weapons.
Thus, the
allowance of the smudging ceremonies is not relevant to the issue
of whether the prohibition on the stone altar that the Outdoor
Altar Plaintiffs seek was the least restrictive means available
to further the compelling interest in safety and security.
The Outdoor Altar Plaintiffs also argue that the
prohibition of the Native Hawaiian rock altar is not the least
restrictive means available because Saguaro allows the
Asatru/Odinist inmates to have an altar.
Warden Thomas responds:
What Plaintiffs demand and what is permitted for
the Asatru/Odinist faith group is distinguishable
where the Asatru/Odinist altar is made of wood and
is not made of non-affixed objects that can be
used by inmates as easily accessible weapons.
Moreover, the altar is moveable in that it is
wheeled out of storage on a cart for use in
celebrations, and then wheeled back to the chapel
storage closet when not in use, so we are able to
keep the altar secure when not in use.
[Id. at ¶ 112 (citation omitted).]
Even viewing the record in
the light most favorable to the Outdoor Altar Plaintiffs, this
Court finds that the Asatru/Odinist use of an altar is
distinguishable from the access to the rock altar that the
Outdoor Altar Plaintiffs seek.
Thus, this Court finds that Defendants have established
that Saguaro’s prohibition of the rock altar that the Outdoor
Altar Plaintiffs seek is the least restrictive means available,
particularly in light of the fact that Saguaro does allow the
93
Native Hawaiian practitioners to use a small altar to Lono
(albeit without rocks) during the Makahiki ceremonies.
Defendants are therefore entitled to summary judgment as to
Plaintiffs’ RLUIPA claim regarding access to a sacred space with
a stone altar.
2.
Defendants’ Motion is GRANTED as to Count XXV.
Free Exercise Claims
As this Court previously recognized, the federal free
exercise analysis and the state free exercise analysis are more
deferential than the RLUIPA analysis.
Insofar as this Court has
concluded that the Outdoor Altar Plaintiffs’ RLUIPA claim
regarding access to a sacred space with a stone altar fails, this
Court also concludes that the Outdoor Altar Plaintiff’s federal
free exercise claim and Plaintiffs’ state free exercise claim
regarding access to a sacred space with a stone altar fail as a
matter of law.
This Court therefore GRANTS Defendants’ Motion as
to Count IV and Count XIV.
3.
Equal Protection Claims
Plaintiffs have presented evidence that other religious
groups are treated more favorably, i.e. the Native American
inmates are allowed to use rocks in sweat lodge ceremonies, the
Native American inmates have a yard for smudging ceremonies, and
Asatru/Odinist inmates are allowed to have an altar while Saguaro
does not allow Plaintiffs the stone altar at issue in this case.
This Court, however, has found that Defendants have proven that
94
the situations are distinguishable and that there are legitimate
safety and security reasons explaining the differences in
treatment.
This Court therefore concludes that the Outdoor Altar
Plaintiff’s federal equal protection claim and Plaintiffs’ state
equal protection claim regarding access to a sacred space with a
stone altar fail as a matter of law.
This Court therefore GRANTS
Defendants’ Motion as to Count IX and Count XIX.
E.
Claims Regarding Access to a Spiritual Advisor
The Second Amended Complaint alleges that “[a] critical
tenet of Native Hawaiian religion essential to the expression of
Plaintiffs’ faith is to regularly meet with a respected kahu
(religious) leader to assist in their worship activities.”
[Second Amended Complaint at ¶ 52.]
1.
RLUIPA
The Spiritual Advisor Plaintiffs have established that
regular access to a spiritual advisor is a religious exercise for
purposes of RLUIPA.
The Ninth Circuit, however, has held that,
where the factual allegations of the complaint showed only that
the plaintiffs sought “additional religious accommodations beyond
those already provided by the prison to facilitate the religious
exercise of their . . . faith,” the plaintiffs did not plead a
substantial burden on their religious exercise.
Hartmann v. Cal.
Dep’t of Corr. & Rehab., 707 F.3d 1114, 1125 (9th Cir. 2013).
Thus, the Ninth Circuit held that the complaint failed to state a
95
RLUIPA claim based on the lack of a paid full-time chaplain of
the plaintiffs’ religion.
In so holding, the Ninth Circuit also
noted that the plaintiffs benefitted from the services of a
volunteer chaplain of their religion as well as from the services
of the staff chaplains.
Id.
As previously noted, Haili travels to Saguaro
approximately four times a year to assist in the Makahiki
observance and other occasions.
He conducts individual
consultations with inmates during these trips.
¶ 49.]
[Thomas Decl. at
Another practitioner of the Native Hawaiian religion,
Kini Burke, comes with Haili to assist in the programming, when
Burke is able to do so.
Burke is also a volunteer, and he
usually only comes two times a year, for the opening and closing
of the Makahiki season.
at 300-01.]
[Defs.’ Excerpts of Haili 5/31/13 Depo.
Further, the Spiritual Advisor Plaintiffs also have
access to the Saguaro chaplain.
Warden Thomas states:
any [Saguaro] inmate, no matter his religious
designation, may request spiritual guidance from
the facility chaplain. Furthermore, inmates are
permitted to correspond with spiritual advisors of
their choice via written correspondence. Inmates
may also place spiritual advisors on their
approved telephone call lists. Finally, inmates
may request contact visits (subject to restriction
for segregation inmates) with spiritual advisors
via written request, subject to confirmation of
religious credentials by the facility chaplain,
successful passing of applicable security
background checks and approval of the warden.
[Thomas Dec. at ¶ 40.]
Chaplain Miller testified that he was
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responsible for “the overall care of all the spiritual needs
throughout the prison for both staff and inmates.”
[Guzman
Decl., Exh. 11 (Excerpts of 4/4/13 Depo. of Charles F. Miller
(“Defs.’ Excerpts of Miller Depo.”)) at 10.]
Chaplain Miller had
oversight over the activities of the Native Hawaiian
practitioners, including the Makahiki ceremonies.
[Id. at 23.]
He also testified:
[A] chaplain is - If you’re working with the
Mormons, you’re supporting the Mormons. If you’re
working with the Native Hawaiians, you’re
supporting the Native Hawaiians. The role of a
chaplain is you’re not showing preference to any
one group. At the time you’re meeting or
supporting that group, that’s what you do, you
support them. That’s the idea of being a
chaplain, is that you can work with multiple
faiths without putting one faith above another.
[Id. at 211-12.]
This Court understands that a kahu has an integral role
in the practice of the Native Hawaiian religion and that more
frequent access to a Native Hawaiian spiritual advisor would be
beneficial to the Spiritual Advisor Plaintiffs’ religious
exercise.
However, even viewing the record in the light most
favorable to the Spiritual Advisor Plaintiffs, the record
establishes that they benefit from the volunteer services already
provided by Haili and Burke and, at least to some extent, from
the services of the Saguaro chaplain.
Thus, Plaintiffs merely
seek additional accommodations beyond what Saguaro provides to
facilitate their religious exercise.
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Pursuant to Hartmann, such
allegations in a complaint would not be enough to survive a
motion to dismiss.
This Court also concludes that the evidence
is insufficient to raise a genuine issue of material fact as to
the substantial burden analysis.
This Court therefore concludes
that the Spiritual Advisor Plaintiffs’ RLUIPA claim fails as a
matter of law, and this Court GRANTS Defendants’ Motion as to
Count XXVI.
2.
Federal Free Exercise Claim
The Ninth Circuit in Hartmann also held that the
plaintiffs failed to state a First Amendment free exercise claim.
The Ninth Circuit emphasized that “it is well-settled that the
First Amendment does not require prison administration to provide
inmates with the chaplain of their choice.”
Id. at 1122-23 (some
citations omitted) (citing Cruz v. Beto, 405 U.S. 319, 322 n.2,
92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972) (“A special chapel or
place of worship need not be provided for every faith regardless
of size; nor must a chaplain, priest, or minister be provided
without regard to the extent of the demand.”)).
Based on the reasoning in Hartmann, this Court
concludes that “[t]he Free Exercise Clause does not require
[Saguaro] to provide [the Spiritual Advisor] Plaintiffs with more
than that which they are currently receiving — i.e., the services
of staff chaplains and a volunteer [Native Hawaiian religion]
chaplain.”
See id. at 1123.
This Court therefore concludes that
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the Spiritual Advisor Plaintiffs’ federal free exercise claim
fails as a matter of law, and this Court GRANTS Defendants’
Motion as to Count V.
3.
Federal Equal Protection Claim
The Ninth Circuit in Hartmann also rejected the
plaintiffs’ equal protection claim.
The Ninth Circuit noted that
the Equal Protection Clause does not require “that all
prisoners . . . receive identical treatment and resources.”
Id.
(some citations omitted) (citing Cruz, 405 U.S. at 322 n.2, 92 S.
Ct. 1079).
As with the plaintiffs in Hartmann, the Spiritual
Advisor Plaintiffs’ access to a volunteer spiritual advisor of
the Native Hawaiian religion and to the Saguaro chaplain, even if
the chaplain is a chaplain of other religions, “is fatal to their
claim.”
See id.
Thus, “[a]s with their Free Exercise claim, the
Equal Protection Clause does not entitle [the Spiritual Advisor]
Plaintiffs to more than what . . . they already receive.”
id. at 1124.
See
This Court therefore concludes that the Spiritual
Advisor Plaintiffs’ federal equal protection claim fails as a
matter of law, and this Court GRANTS Defendants’ Motion as to
Count X.
4.
State Constitutional Claims
Although Hartmann is not controlling as to the analysis
of Plaintiffs’ state free exercise claim and Plaintiffs’ state
equal protection claim, Hartmann is persuasive because the state
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free exercise analysis and the state equal protection analysis
are similar to the federal free exercise analysis and the federal
equal protection analysis.
This Court therefore concludes that
Plaintiffs’ state free exercise claim and state equal protection
claim fail for the same reasons as those set forth in Hartmann.
This Court therefore concludes that Plaintiffs’ state free
exercise claim and Plaintiffs’ state equal protection claim fail
as a matter of law.
This Court GRANTS Defendants’ Motion as to
Count XV and Count XX.
F.
Summary of Rulings
Defendants’ Motion is HEREBY GRANTED as to Counts II,
IV, V, VII, IX, X, XIV, XV, XVII, XX, XXII, XIX, XXIII, XXV, and
XXVI.
Defendants’ Motion is HEREBY DENIED as to Counts I, VI,
XI, XVI, and XXII.
Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED
IN PART as to Counts III, VIII, XIII, XVIII, and XXIV.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment, filed July 31, 2013, is HEREBY GRANTED IN PART
AND DENIED IN PART, Plaintiffs’ Motion for Partial Summary
Judgment Against Defendants as to Their Claims Under the
Religious Land Use and Institutionalized Persons Act, filed
October 31, 2013, is HEREBY GRANTED IN PART AND DENIED IN PART,
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and Plaintiff Robert Holbron’s Counter-Motion for Summary
Judgment on His Claims, filed December 23, 2013, is HEREBY DENIED
WITHOUT PREJUDICE.
The motions are DENIED WITHOUT PREJUDICE as to: 1) any
claims seeking damages and any claims seeking retrospective
equitable relief; 2) Plaintiff Holbron’s claims seeking
prospective declaratory and injunctive relief regarding
restricted custody at Saguaro; and 3) Plaintiff Galdones’s
request for prospective declaratory and injunctive relief as to
his state law retaliation claim.
This Court set forth all of its rulings regarding
Plaintiffs’ Motion supra Discussion section II.F, and this Court
set forth all of its rulings regarding Defendants’ Motion supra
Discussion section III.F.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, June 13, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD KAPELA DAVIS, ET AL. V. NEIL ABERCROMBIE, ET AL.; CIVIL
NO. 11-00144 LEK-BMK; AMENDED ORDER
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