Davis et al v. Abercrombie et al
Filing
596
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES re: 519 . Signed by JUDGE LESLIE E. KOBAYASHI on 7/31/2014. Excerpt of Conclusion: "Defendan ts' Motion is GRANTED insofar as this Court rules that: 1) Defendant Sakai is entitled to summary judgment as to any of Plaintiffs' § 1983 claims against him seeking damages or retrospective relief; 2) Plaintiffs' remaining § 1983 claims and RLUIPA [Religious Land Use and Institutionalized Persons Act] claims for damages are limited to compensatory damages and nominal damages; 3) Defendants are entitled to summary judgment as to Plaintiffs' ; claims seeking damages or retrospective relief directly under the Hawai'i State Constitution; and 4) to the extent that any portion of Plaintiff Galdones's state law retaliation claim remains, Defendants are entitled to summary judgment a s to his request for punitive damages. Defendants' Motion is DENIED in all other respects." [Written Order follows hearing held 7/7/2014 on Defendants' M/SJ. Minutes of hearing: doc no. 568 ] (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on August 1, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
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)
)
)
)
)
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Plaintiffs,
)
)
vs.
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NEIL ABERCROMBIE, in his
)
official capacity as the
)
Governor of the State of
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Hawaii; TED SAKAI, in his
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official capacity as the
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Director of the Hawaii
Department of Public Safety; )
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CORRECTIONS CORPORATIONS OF
)
AMERICA,
)
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Defendants.
_____________________________ )
RICHARD KAPELA DAVIS, MICHAEL
HUGHES, DAMIEN KAAHU, ROBERT
A. HOLBRON, JAMES KANE, III,
ELLINGTON KEAWE, KALAI POAHA,
TYRONE KAWAELANILUA`OLE
NA`OKI GALDONES,
CIVIL NO. 11-00144 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN IMMUNITY/DAMAGES
On May 13, 2014, Defendants Ted Sakai, in his official
capacity as the Director of the Hawai`i Department of Public
Safety (“Defendant Sakai” and “DPS”), and Corrections Corporation
of America (“CCA”, collectively “Defendants”) filed their Motion
for Summary Judgment Re: Sovereign Immunity/Damages (“Motion”).
[Dkt. no. 519.]
Plaintiffs Richard Kapela Davis,
Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes,
Damien Kaahu, James Kane, III, Ellington Keawe, and
Kalani K. Poaha (collectively “Plaintiffs”) filed their
memorandum in opposition on June 16, 2014.
[Dkt. no. 545.]
Defendants filed their reply on June 23, 2014.
[Dkt. no. 553.]
This matter came on for hearing on July 7, 2014.
On July 14, 2014, Plaintiffs filed a submission of new
evidence in opposition to the Motion (“7/14/14 Submission”).
[Dkt. no. 580.]
On July 21, 2014, Defendants filed an opposition
to the 7/14/14 Submission.
[Dkt. no. 585.]
After careful
consideration of the Motion, supporting and opposing documents,
and the arguments of counsel, Defendants’ Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s June 13, 2014 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 (“6/13/14 Summary Judgment Order”).
1
[Dkt. no. 544.1]
The 6/13/14 Summary Judgment Order is also available at
2014 WL 2716856. This Court filed the original order on
March 31, 2014 (“3/31/14 Summary Judgment Order”). 2014 WL
1321006. Defendants subsequently moved for reconsideration on
April 14, 2014. [Dkt. no. 500.] On June 2, 2014, this Court
issued an order granting in part and denying in part Defendants’
(continued...)
2
This Court incorporates the background section of the 6/13/14
Summary Judgment Order in the instant order.
This Court limited the scope of the 6/13/14 Summary
Judgment Order to Plaintiffs’ claims seeking prospective
declaratory and injunctive relief.
2014 WL 2716856, at *3.
This
Court directed 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.
Id.
Defendants filed the instant Motion in response to that
order.
The 6/13/14 Summary Judgment Order granted summary
judgment in favor of Plaintiffs insofar as this Court ruled
that:2
1
(...continued)
motion for reconsideration (“6/2/14 Reconsideration Order”), 2014
WL 2468348, and this Court issued the 6/13/14 Summary Judgment
Order to incorporate the rulings in the Reconsideration Order.
Defendants filed the instant Motion before this Court issued
either the 6/2/14 Reconsideration Order or the 6/13/14 Summary
Judgment Order.
2
This Court has only listed the relevant rulings. Some of
the rulings regarding Plaintiffs’ religious exercise were
ultimately irrelevant because this Court granted summary judgment
in favor of Defendants on that claim.
3
•as to the Daily Outdoor Worship Plaintiffs,3 group worship
outdoors, on a daily basis, is a religious exercise for
purposes of the Religious Land Use and Institutionalized
Persons Act, 42 U.S.C. § 2000cc, et seq. (“RLUIPA”); id. at
*11;
•Plaintiffs’ use of each of the sacred items at issue in
Count XXIV (Plaintiffs’ RLUIPA claim regarding access to
sacred items) is a religious exercise for purposes of
RLUIPA; id. at *17;
•the Outdoor Altar Plaintiffs’4 use of a sacred outdoor space,
with a stone altar, is a religious exercise for purposes of
RLUIPA (but this Court denied summary judgment to Plaintiffs
as to the size and composition of the outdoor space and the
altar); id. at *18;
•the Spiritual Advisor Plaintiffs’5 regular access to a spiritual
advisor is a religious exercise for purposes of their RLUIPA
claim (but this Court denied summary judgment to Plaintiffs
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); id. at
*20.
The 6/13/14 Summary Judgment Order granted summary
judgment in favor of Defendants as to:
•Plaintiffs’ claims seeking prospective equitable relief
regarding Red Rock Correctional Center; id. at *4;
•Plaintiff Poaha’s claims seeking prospective equitable relief;
id. at *5;
3
In the 6/13/14 Summary Judgment Order, “the Daily Outdoor
Worship Plaintiffs” refer to Plaintiffs Davis, Galdones, Hughes,
Kaahu, and Kane. 2014 WL 2716856, at *10 n.15.
4
In the 6/13/14 Summary Judgment Order, “the Outdoor Altar
Plaintiffs” refer to Plaintiffs Davis, Galdones, Hughes, Kaahu,
and Kane. Id. at *17 n.23.
5
In the 6/13/14 Summary Judgment Order, “the Spiritual
Advisor Plaintiffs” refer to Plaintiffs Holbron, Kane, and Keawe.
Id. at *19 n.24.
4
•Count XXIII (Plaintiffs’ RLUIPA claim regarding the observance
of Makahiki), Counts II and XII (Plaintiffs’ federal and
state free exercise claims regarding the observance of
Makahiki), and Counts VII and XVII (Plaintiffs’ federal and
state equal protection claims regarding the observance of
Makahiki); id. at *29;
•all items at issue in Count XXIV, Counts III and XII
(Plaintiffs’ federal and state free exercise claims
regarding access to sacred items), except for the portions
of those claims based on lack of daily access to personal
amulets and `ohe hano ihu (bamboo nose flute); id. at *35,
*37;
•the portions of Counts VIII and XVIII (Plaintiffs’ federal and
state equal protection claims regarding access to sacred
items) as to: 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); id. at *36-37;
•Count XXV (the Outdoor Altar Plaintiffs’ RLUIPA claim regarding
access to a sacred space with a stone altar), Counts IV and
XIV (the Outdoor Altar Plaintiffs’ federal and state free
exercise claims regarding access to a sacred space with a
stone altar), and Counts IX and XIX (the Outdoor Altar
Plaintiffs’ federal and state equal protection claims
regarding access to a sacred space with a stone altar); id.
at *39-40; and
•Count XXVI (the Spiritual Advisor Plaintiffs’ RLUIPA claim),
Counts V and XV (the Spiritual Advisor Plaintiffs’ federal
and state free exercise claims), and Counts X and XX (the
Spiritual Advisor Plaintiffs’ federal and state equal
protection claims); id. at *41-42.
Thus, of Plaintiffs’ claims seeking prospective relief, only the
following remain: all of Counts I, VI, XI, XVI, and XXII; the
portions of Counts III, XIII, and XXIV related to lack of daily
access to a personal amulet and to `ohe hano ihu; and the
portions of Counts VIII and XVIII related to a personal amulet,
5
malo, kihei and pau (native garments), a kahili (pole with
cylindrical top covered with feathers, cloth, flora and/or
painted), pu kani (conch shell), pu ohe (bamboo shell horn).
In the instant Motion, Defendants ask this Court to
grant summary judgment in their favor as to: all of Plaintiffs’
claims against Defendant Sakai; Plaintiffs’ RLUIPA claims against
CCA; Plaintiffs’ claims against CCA for violation of the Hawai`i
State Constitution; and Plaintiff Galdones’s request for punitive
damages associated with his state law retaliation claim.
DISCUSSION
I.
Damages and Retrospective Relief Against Defendant Sakai
Defendants first argue that they are entitled to
summary judgment as to all of Plaintiffs’ § 1983 claims against
Defendant Sakai for damages and retrospective relief because
Defendant Sakai is not a “person” for purposes of such claims.
Plaintiffs respond that “Defendant Sakai is liable in his
official capacity as director of the Department of Public Safety
for injunctive and prospective declaratory relief.
Having named
Sakai in his official capacity, Plaintiffs are not pursuing
damages against the director in his individual capacity.”
[Mem.
in Opp. at 1 n.1.]
Based on Plaintiffs’ representation, and based upon the
same analysis set forth in this Court’s September 13, 2013 Order
Granting Defendant Neil Abercrombie’s Motion for Judgment on the
6
Pleadings (“9/13/13 Order”), 2013 WL 5204982, at *12-13,6 this
Court concludes that Defendants are entitled to summary judgment
as to any claims in the Plaintiffs’ Second Amended Complaint for
Damages and for Classwide Declaratory and Injunctive Relief
(“Second Amended Complaint”), [filed 8/22/12 (dkt. no. 145),]
seeking damages and retrospective relief against Defendant Sakai.
Defendant’s Motion is GRANTED as to Plaintiffs’ claims for
damages and retrospective relief against Defendant Sakai.
II.
Prospective Relief Against Defendant Sakai
Defendants next argue that they are entitled to summary
judgment as to all of Plaintiffs’ § 1983 claims against Defendant
Sakai for prospective relief because he was not involved in the
decision-making regarding the religious programming at issue, and
he does not have the authority to carry out the requested
injunctive relief.
First, in the 9/13/13 Order, this Court ruled “if
Plaintiffs prevail in this case, it is Defendant Sakai (as DPS
director) who has the statutory authority to execute the
requested injunctive relief and to remedy any violations
identified in any declaratory relief.”
5204982, at *14.
9/13/13 Order, 2013 WL
In so ruling, this Court stated:
Haw. Rev. Stat. § 353C–2 sets forth the
powers and duties of the director of DPS and
states, in pertinent part:
6
The 9/13/13 Order is also available as docket number 390.
7
[(a)] The director of public safety shall
administer the public safety programs of the
department of public safety and shall be
responsible for the formulation and
implementation of state goals and objectives
for correctional and law enforcement
programs, including ensuring that
correctional facilities and correctional
services meet the present and future needs of
persons committed to the correctional
facilities. In the administration of these
programs, the director may:
. . . .
(2) Train, equip, maintain, and
supervise the force of public safety
officers, including law enforcement and
correctional personnel, and other
employees of the department;
. . . .
(4) Perform other duties as may be
required by law;
(5) Adopt, pursuant to chapter 91, rules
that are necessary or desirable for the
administration of public safety
programs; and
(6) Enter into contracts in behalf of
the
department and take all actions deemed
necessary and appropriate for the proper
and efficient administration of the
department.
(Emphasis added.) In addition, it is the director
of DPS who has the authority to “effect the
transfer of a committed felon to any correctional
institution located in another state. . . .” Haw.
Rev. Stat. § 353–16.2(a); Haw. Rev. Stat.
§ 353–1. . . .
Id. (emphases and some alterations in 9/13/13 Order).
did not seek reconsideration of the 9/13/13 Order.
8
Defendants
In the
6/13/14 Summary Judgment Order, this Court relied on the analysis
in the 9/13/13 Order and denied summary judgment to Defendants as
to Plaintiffs’ claims for prospective equitable relief against
Defendant Sakai.
2014 WL 2716856, at *4.
Thus, this Court’s ruling that Defendant Sakai is the
proper State official to ensure the execution of any prospective
equitable relief ordered is the law of the case.
“Under the ‘law
of the case’ doctrine, a court is ordinarily precluded from
reexamining an issue previously decided by the same court, or a
higher court, in the same case.”
United States v. Jingles, 702
F.3d 494, 499 (9th Cir. 2012) (citation omitted), cert. denied,
133 S. Ct. 1650 (2013).
However, due to the importance of the
issue, this Court will address the merits of Defendants’ current
argument regarding Plaintiffs’ claims for prospective relief
against Defendant Sakai.
This Court first notes that Plaintiffs do not argue
that Defendant Sakai personally made the religious programming
decisions which allegedly violated Plaintiffs’ rights under
RLUIPA, the United States Constitution, and the Hawai`i State
Constitution.
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.
9
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).
Although both Pouncil and Hartmann involved motions to
dismiss, Pouncil, 704 F.3d at 570; Hartmann, 707 F.3d at 1120-21,
the legal principles articulated in those cases are still
applicable to the issue before this Court in the instant Motion.
If there is a genuine issue of material fact as to whether
Defendant Sakai would be responsible for ensuring that any
injunctive relief was carried out, Defendants would not be
entitled to judgment as a matter of law.
See Fed. R. Civ. P.
56(a) (stating that a movant is entitled to summary judgment “if
the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law”).
In determining whether there is a genuine issue of
material fact, this Court must view the current record in the
light most favorable to Plaintiffs.
See Crowley v. Bannister,
734 F.3d 967, 976 (9th Cir. 2013) (“We review a grant of summary
10
judgment de novo and must determine, viewing the facts in the
light most favorable to the nonmoving party, whether there are
any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” (citations
and quotation marks omitted)).
Defendants argue that Defendant Sakai does not have the
authority to ensure that Saguaro Correctional Center (“Saguaro”)
carries out any injunctive relief that this Court orders.
They
contend that CCA is the only party with the authority to make any
changes required by an award of injunctive relief.
Defendants
acknowledge that CCA and the DPS director have a contractual
relationship regarding the housing of Hawai`i inmates at Saguaro.
Defendants argue that, subject to constitutional restrictions,
DPS defers to CCA’s autonomy and discretion over Saguaro’s dayto-day operations.
In this case, Plaintiffs allege that their
constitutional rights are being violated, and this Court
previously denied summary judgment to Defendants as to
Plaintiffs’ claims for prospective relief for violations of their
federal and state constitutional claims regarding daily worship
practices and regarding access to certain sacred items.
If
Plaintiffs ultimately establish that there were violations of
their constitutional rights, Defendant Sakai would have the
authority to ensure CCA’s compliance with the prospective relief
11
this Court orders because the constitutional violations would be
outside of the scope of the discretion that DPS allows CCA.
Second, Saguaro Warden Todd Thomas has stated that DPS
personnel “monitor correctional services agreement compliance as
to [Saguaro’s] operations[.]”
[Motion, Defs.’ Concise Statement
of Facts in Supp. of Motion (“Defs.’ CSOF”), Decl. of Warden
Thomas (“Thomas Decl.”) at ¶ 21.7]
Plaintiffs argue that CCA’s
contracts with DPS require CCA to comply with all federal and
state laws.
The Scope of Services Attachment to the “contract
for Health and Human Services, Competitive Purchase Services,
dated June 2011” (“June 2011 Contract”), [Pltfs.’ Joint Separate
Concise Statement of Facts in Opp. to Motion, filed 6/16/14 (dkt.
no. 546) (“Pltfs.’ CSOF”), Decl. of Sharla Manley (“Manley
Decl.”) at ¶ 7,] states, in pertinent part:
9.
All Inmates shall be confined and treated in
a facility which:
a.
Provides a level of program activity for
the Inmate that is suitable to allow
every Inmate in general population who
meet the relevant criteria to
participate in meaningful educational,
vocational training, drug and other
treatment and counseling programs; and
b.
Does so in a matter that meets and does
not violate any rights provided under
the laws and Constitution of the United
7
The version of the Thomas Declaration filed with
Defendants’ CSOF is unsigned, but it states that it was approved
by telephone. [Thomas Decl. at pg. 4.] Defendants filed the
signed version on May 21, 2014. [Dkt. no. 525.]
12
States or of the States of Hawaii and
Arizona.
[Id., Exh. 5 at 11.]
Similarly, the General Conditions for
Health & Human Services Contracts, which are part of the June
2011 Contract, [Manley Decl. at ¶ 8,] states:
1.2
Representations of the PROVIDER. As a
necessary condition to the formation of this
Contract, the PROVIDER makes the
representations contained in this paragraph,
and the STATE relies upon such
representations as a material inducement to
entering into this Contract.
1.2.1
Compliance with Laws. As of the
date of this Contract, the PROVIDER
complies with all federal, state,
and county laws, ordinances, codes,
rules, and regulations, as the same
may be amended from time to time,
that in any way affect the
PROVIDER’s performance of this
Contract.
. . . .
1.3
Compliance with Laws. The PROVIDER shall
comply with all federal, state, and county
laws, ordinances, codes, rules, and
regulations, as the same may be amended from
time to time, that in any way affect the
PROVIDER’s performance of this
Contract . . . .
[Id., Exh. 6 at DAVIS_HIDPS003494.]
Insofar as CCA’s contract
with DPS requires CCA to comply with, inter alia, all applicable
federal laws, if this case ultimately results in a finding that
CCA violated Plaintiffs’ rights under RLUIPA, DPS can also ensure
CCA’s compliance with any prospective equitable relief ordered as
part of DPS’s monitoring of CCA’s contract compliance.
13
Plaintiffs also assert that DPS has the authority to
ensure CCA’s compliance with any prospective equitable relief
ordered in this case, as evidenced by the fact that CCA already
relies upon DPS’s polices to make decisions regarding
accommodations for inmate practitioners of the Native Hawaiian
religion.
Plaintiffs rely on a July 17, 2008 memorandum from
Shari Kimoto, the DPS Mainland Branch Administrator, to Warden
Thomas transmitting the “PSD Makahiki Basic Guidelines and
Retention List for In-State and Out-of-State Correctional
Facilities.”
[Manley Decl., Exh. 9.8]
The transmittal memo
states, in pertinent part:
Attached is the approved Department’s basic
guidelines for the Makahiki season to be
implemented in both in-state and out-of-state
facilities.
. . . .
Also attached is a retention list of religious
items that have been verified by Kaiana Haili.
Please be advised that the retention item of Alae
Salt (Hawaiian Salt) due to its clear, crystal
form, may be brought into the facility for
ceremonial purposes only upon your approval and
must be taken out of the facility upon the
completion of the ceremony.
8
This Court will refer to pages 2 and 3 of Exhibit 9 as
“the Makahiki Guidelines,” and to pages 4 and 5 of Exhibit 9 as
“the Retention List.” Defendant Sakai described these as “akin
to like a - it’s something we would use to carry out a facility
policy or to clarify a facility policy.” [Manley Decl., Exh. 10
(Excerpts of Trans. of 5/7/13 Depo. of Theodore Sakai) (“Pltfs.’
Excerpts of Sakai Depo.”) at 66.]
14
For the purposes of weekly meetings, it should be
a minimum of 1-hour meetings; however, what you
have in place (Wednesdays) is more than
acceptable. A Native Hawaiian Religious
curriculum has been provided for the purposes of
structure within the meetings.
[Id. at 1 (some emphases added).]
Plaintiffs assert that DPS
sent the document “in response to CCA’s request for a policy that
it could follow on Native Hawaiian religion.”
[Pltfs.’ CSOF at
¶ 37 (some citations omitted) (citing Manley Decl., Exh. 15
(Excerpts of Trans. of 4/5/13 Depo. of Warden Todd Thomas)
(“Thomas Depo.”) at 104-05, 110).]
Warden Thomas described a
meeting in Hawai`i during which he discussed the Native Hawaiian
religion with several DPS officials to help develop guidelines.
[Thomas Depo. at 105, 110.]
During the meeting, he asked the DPS
officials: “‘Is there a policy?
something I can follow?’”
Is there a document?
[Id. at 105.]
Is there
He also asked, “‘can we
get a document what is [sic] expected?’”
[Id.]
“‘Write it down; we’ll follow it to a T.
And if we have
questions, we will contact you.’
we followed it to a T.”
He stated:
And every year since that time,
[Id. at 106.]
According to Warden
Thomas, the Makahiki Guidelines and the Retention List arose out
of that meeting.
[Id.]
Warden Thomas also testified:
Q.
Okay. What decisions regarding the
administration of Saguaro do you have to seek
approval from your superior before enacting?
. . . .
15
THE WITNESS:
Well, as simple as
changing a policy or as complex as anything else
out of the norm. But if I was going to change a
policy, something in writing, I’ve got to submit a
request through policy and procedure that would go
to P and P, policy and procedure, in Nashville,
and then that would be reviewed by legal,
operations, vice presidents, and ultimately, I’m
sure the chief operating officer signs off on it
from the CCA standpoint.
From Hawaii’s standpoint, I’ve got to submit
it through [redacted] Kimoto, and I’m sure she
would submit it through her chain of command. It
would take approval from both entities to make
that happen.
BY MR. KAWAHITO:
Q. For, let’s say, religious programs, in
order to change any of the policies that relate to
religious programs, you would have to get approval
from your superior at CCA as well as Shari Kimoto
in Hawaii. Is that correct?
A.
Correct.
[Id. at 125-26.]
Moreover, in denying Plaintiffs’ written requests for
religious accommodations, Saguaro officials cited DPS policies.
For example, in denying one of Plaintiff Davis’s requests
regarding items and services for the observance of the Makahiki
season, the Saguaro official stated, inter alia: “Here at Sagauro
we operate under the current policy which or and has approved by
[DPS] in the area of Native Hawaiian Spiritual leaders.”
16
[Manley
Decl., Exh. 22 at DAVIS_SCC000394-95.9]
In responding to one of
Plaintiff Davis’s requests regarding registration as a
practitioner of the Native Hawaiian religion, the Saguaro
official stated, inter alia: “We are going to operate under the
current policy that has been approved by [DPS] . . . .”
DAVIS_SCC000389-90.10]
[Id. at
While Plaintiffs’ claims for prospective
equitable relief regarding the observance of the Makahiki season
and access to a spiritual advisor are no longer before this
Court, Saguaro’s responses to Plaintiff Davis’s requests support
Plaintiffs’ position that DPS has the authority to ensure that
CCA complies with any prospective equitable relief ordered in
this case.
This Court therefore finds that there are genuine
issues of material fact as to whether Defendant Sakai has the
authority to ensure CCA’s compliance with any prospective
equitable relief ordered in this case.
9
Exhibit 22 is the Affidavit of Juan Valenzuela in Support
of Defendants’ Motion to Dismiss (“Valenzuela Affidavit”), with
Attachments A-R, originally filed in this case on
December 31, 2012 as docket number 220-3. Pages DAVIS_SCC000394
and DAVIS_SCC000395 are the Informal Resolution form for one of
Plaintiff Davis’s August 3, 2010 requests (DAVIS_SCC000396).
Both the Inmate Resolution form and the request are part of
Attachment F to the Valenzuela Affidavit.
10
Pages DAVIS_SCC000389 and DAVIS_SCC000390 are the
Informal Resolution form, and DAVIS_SCC000391 is Inmate Request
Form. Both are part of Attachment G to the Valenzuela Affidavit.
17
Further, in this Court’s view, accepting Defendants’
argument that DPS has no authority to ensure that CCA remedies
any constitutional and statutory violations found in this case
would lead to an absurd result and would require an illogical
interpretation of the applicable state statutes governing DPS’s
authority over Hawai`i inmates.
This would be a violation of the
well-established rules of statutory construction that the courts
follow in interpreting Hawai`i statutes.
See Haw. Gov’t Emps.
Ass’n, AFSCME Local 152, AFL-CIO v. Lingle (“HGEA”), 124 Hawai`i
197, 207-08 n.16, 239 P.3d 1, 11-12 n.16 (2010).11
This Court
therefore concludes that Defendants are not entitled to judgment
as a matter of law and DENIES Defendants’ Motion as to the claims
against Defendant Sakai for prospective equitable relief.
11
In HGEA, the Hawai`i Supreme Court stated:
“the legislature is presumed not to intend an
absurd result, and legislation will be construed
to avoid, if possible, inconsistency,
contradiction, and illogicality.” Gray v.
Administrative Dir. of the Court, 84 Hawai`i 138,
148, 931 P.2d 580, 590 (1997) (citation and
internal quotation marks omitted). “[A] rational,
sensible and practicable interpretation of [a
statute] is preferred to one which is unreasonable
or impracticable[.]” Keliipuleole v. Wilson, 85
Hawai`i 217, 221–22, 941 P.2d 300, 304–05 (1997)
(brackets added and in original) (citation and
internal quotation marks omitted).
124 Hawai`i at 207-08 n.16, 239 P.3d at 11-12 n.16 (alterations
in HGEA).
18
III. Effect of the Prison Litigation Reform Act
Defendants next argue that, pursuant to the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(e), Plaintiffs
cannot recover for any mental or emotional injury unless they can
also establish physical injury.
According to Defendants,
Plaintiffs have only alleged spiritual injury, and there is no
suggestion that they have suffered any physical injuries.
Defendants assert that spiritual injury is legally equivalent to
emotional or mental injury.
Thus, Defendants argue that
Plaintiffs can only recover nominal damages for their remaining
§ 1983 claims regarding outdoor group worship and access to
sacred items.
[Mem. in Supp. of Motion at 8-9.]
Under § 1997e(e), “[n]o Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical
injury . . . .”
First, insofar as § 1997e(e) specifically
addresses federal claims, Defendants acknowledge that it does not
apply to Plaintiffs’ state law claims.12
at 3.]
[Mem. in Supp. of Reply
This district court has stated:
In Oliver v. Keller, 289 F.3d 623, 627 (9th
Cir. 2002), the Ninth Circuit considered the
standard in interpreting the “physical injury”
12
Although § 1997e(e) does not limit a plaintiff’s state
law claims, Plaintiffs’ claims for damages under the Hawai`i
State Constitution fail for other reasons. See infra § V.
19
requirement of § 1997e(e) and whether that
“physical injury” requirement applies to claims
other than those for mental and emotional injury.
The court concluded that, “[t]o the extent [a
plaintiff] has actionable claims for compensatory,
nominal or punitive damages—premised on violations
of his Fourteenth Amendment rights, and not on any
alleged mental or emotional injuries—we conclude
the claims are not barred by 1997e(e).” 289 F.3d
at 629–30.
. . . As governed by Oliver, while
Plaintiff’s constitutional claims under the Fourth
and Fourteenth Amendments may have little
financial value, they are still cognizable. See
Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 776–77
(N.D. Cal. 2008); see also Greene v. Rourk, 2009
WL 1759638, at *9 (E.D. Cal. June 22, 2009)
(allowing compensatory, nominal, or punitive
damage claims under Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), the
First and Fourteenth Amendments, and state law to
proceed); Curtis v. Benda, 2009 WL 1065204 at *2
(W.D. Wash. Apr. 20, 2009) (concluding that
Fourteenth Amendment claim for compensatory,
nominal, and punitive damages is not barred by
§ 1997e(e)); Hill v.. [sic] Arpaio, 2007 WL
1120305, at *4 (D. Ariz. Apr. 11, 2007) (same).
While Plaintiff cannot recover damages on his
claims for humiliation and embarrassment, under
Oliver and its progeny he may recover
compensatory, punitive, and/or nominal damages for
the violation of his Fourth and Fourteenth
amendment rights, if he can establish a
violation. . . .
Hammond v. Dep’t of Pub. Safety, Civ. No. 09–00596 JMS/KSC, 2011
WL 6210869, at *3-4 (D. Hawai`i Dec. 14, 2011) (some alterations
in Hammond).
Defendants acknowledge that the PLRA physical injury
requirement does not bar either claims for compensatory damages
20
for loss of property or claims for nominal damages.13
Supp. of Reply at 3-4.]
[Mem. in
Thus, Defendants only seek a ruling that
the PLRA bars Plaintiffs’ § 1983 claims and Plaintiffs’ RLUIPA
claims for damages based on their alleged spiritual injuries.14
Plaintiffs argue that “the Ninth Circuit has consistently held
that claims for the violation of constitutional rights are not
actions ‘for mental or emotional injury,’ and thus the physical
injury requirement of § 199[7]e(e) does not apply” and therefore
§ 1997(e)e does not apply to claims alleging violations of the
First Amendment or the Fourteenth Amendment.
[Mem. in Opp. at
26-27 (citing Canell v. Lightner, 143 F.3d 1210, 1213 (9th Cir.
1998); Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002)).]
13
Defendants also acknowledge that the PLRA physical injury
requirement does not bar claims for punitive damages, but they
point out that the Second Amended Complaint does not seek
punitive damages. [Mem. in Supp. of Reply at 3-4 & n.6 (citing
Second Amended Complaint at pg. 129, ¶ 15).] Plaintiff Galdones
seeks punitive damages for his state law retaliation claim.
[Suppl. Complaint for Damages and for Classwide Declaratory &
Injunctive Relief, filed 8/22/12 (dkt. no. 146), at pg. 33,
¶ 18.] As noted supra, the PLRA physical injury requirement does
not apply to state law claims.
14
Defendants argue that “Plaintiffs fail to establish any
‘property loss’ other than Davis’ confiscated kukui nut,
legitimately confiscated and for which preliminary-injunction was
denied. Because Plaintiffs’ counsel has Davis’ kukui nut, the
possibility of compensable damages is attenuated at best.” [Mem.
in Supp. of Reply at 3 (footnotes and citations omitted).] This
Court, however, does not construe Defendants’ Motion as seeking
summary judgment on Plaintiffs’ federal claims seeking damages
for property loss.
21
Oliver, however, does not stand for the proposition
that § 1997e(e) is inapplicable to any claim alleging a violation
of the Fourteenth Amendment.
The Ninth Circuit held that
§ 1997e(e) applies only to claims for mental and
emotional injury. To the extent that appellant’s
claims for compensatory, nominal or punitive
damages are premised on alleged Fourteenth
Amendment violations, and not on emotional or
mental distress suffered as a result of those
violations, § 1997e(e) is inapplicable and those
claims are not barred.
Oliver, 289 F.3d at 630 (emphasis added).
In Canell, however,
the Ninth Circuit held:
Canell is not asserting a claim for “mental or
emotional injury.” He is asserting a claim for a
violation of his First Amendment rights. The
deprivation of First Amendment rights entitles a
plaintiff to judicial relief wholly aside from any
physical injury he can show, or any mental or
emotional injury he may have incurred. Therefore,
§ 1997e(e) does not apply to First Amendment
Claims regardless of the form of relief sought.
143 F.3d at 1213 (footnote omitted) (emphasis added).
The Ninth
Circuit has not addressed the apparent conflict between Oliver
and Canell.
This Court will follow Oliver because it is the more
recent authority.
See, e.g., Joseph v. Parciasepe, No.
2:14–cv–00414 AC P, 2014 WL 2807654, at *3 (E.D. Cal. June 20,
2014) (stating that § 1997e(e) “‘requires a prior showing of
physical injury that need not be significant but must be more
than de minimus’” (some citations omitted) (quoting Oliver v.
Keller, 289 F.3d 623, 627 (9th Cir. 2002), and citing Canell v.
Lightner, 143 F.3d 1210 (9th Cir. 1998), as contrary
22
authority)).15
This Court therefore concludes that the PLRA
physical injury requirement applies to Plaintiffs’ § 1983 claims.
Plaintiffs also argue that the PLRA physical injury
requirement does not apply to RLUIPA claims.
[Mem. in Opp. at 27
(citing Rupe v. Cate, 688 F. Supp. 2d 1035, 1044 (E.D. Cal. 2010)
(“Because Plaintiff alleges RLUIPA violations, and not mental or
emotional injuries, § 1997e(e) does not bar his claims”)).]
The
district court in Rupe, however, relied on Oliver for the
proposition that § 1997e(e) “applies only where a plaintiff
alleges mental or emotional injuries.
If a plaintiff claims
violations of constitutional or statutory rights, this section
does not bar claims for money damages.”
688 F. Supp. 2d at 1044
(citing Oliver v. Keller, 289 F.3d 623, 630 (9th Cir. 2002)).
To
the extent that the district court in Rupe ruled that § 1997e(e)
is inapplicable to all claims alleging RLUIPA violations, that is
an incorrect application of Oliver, and this Court does not
consider Rupe persuasive.
This Court agrees with the district
court in Greene, 2009 WL 1759638, at *9 (cited in Hammond,
supra), that § 1997e(e) applies to RLUIPA claims.
Plaintiffs do not expressly claim mental or emotional
injuries; they assert that they have suffered, and are suffering,
various spiritual injuries.
See, e.g., 6/13/14 Summary Judgment
15
The plaintiff in Joseph alleged three § 1983 claims, two
based on violations of the Eighth Amendment and a First Amendment
retaliation claim. 2014 WL 2807654, at *2-3.
23
Order, 2014 WL 2716856, at *22 & n.27 (discussing spiritual
injuries regarding the inability to engage in daily, outdoor,
group worship).
Although this Court by no means minimizes the
importance of the federal rights that Plaintiffs allege were
violated, it is well established that “damages based on the
abstract ‘value’ or ‘importance’ of constitutional rights are not
a permissible element of compensatory damages in [§ 1983] cases.”
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986).
This Court finds that the spiritual injuries that Plaintiffs
allege in this case are comparable to humiliation, embarrassment,
or disappointment and are therefore mental or emotional injuries
subject to § 1997e(e).
Plaintiffs cannot pursue claims for
damages based on their spiritual injuries without a prior showing
of physical injury.
Under Oliver, “a prior showing of physical injury . . .
need not be significant but must be more than de minimis.”
F.3d at 627 (footnote omitted).
289
Plaintiffs have conceded that
they have not suffered any physical injuries as a result of the
alleged violations of the United States Constitution and RLUIPA.
Defendants’ CSOF states: “Plaintiffs have not alleged a physical
injury as a result of any restriction on their religious
activities.
According to Plaintiffs’ declarations, the only
injury they have allegedly suffered from the denial of their
religious exercise, . . . were [sic] ‘spiritual injury.’”
24
[Defs.’ CSOF at ¶ 2 (emphasis in original) (citations omitted).]
Plaintiffs respond: “DISPUTED.
The most critical onus on
Plaintiffs’ religious exercises was the confiscation of Hawaiian
sacred items pursuant to CCA and State policy, practice, and
custom.”
[Pltfs.’ CSOF at ¶ 2.]
Plaintiffs’ failure to respond
to Defendants’ statement regarding a lack of physical injury
renders that statement admitted.
See Local Rule LR56.1(g)
(“material facts set forth in the moving party’s concise
statement will be deemed admitted unless controverted by a
separate concise statement of the opposing party”).
This Court
therefore concludes that § 1997e(e) bars Plaintiffs’ § 1983
claims and RLUIPA claims for damages arising from their alleged
spiritual injuries because Plaintiffs have not made the required
showing of physical injury.
Defendants’ Motion is GRANTED insofar as this Court
rules that, pursuant to § 1997e(e), Plaintiffs’ remaining § 1983
claims and RLUIPA claims for damages are limited to compensatory
damages and nominal damages.
IV.
Whether Plaintiffs Can Pursue RLUIPA Claims Against CCA
Defendants next argue that CCA is entitled to summary
judgment on all of Plaintiffs’ remaining RLUIPA claims against it
because: 1) CCA is not “the government” for purposes of RLUIPA;
and 2) Plaintiffs cannot pursue RLUIPA claims against CCA because
it does not receive federal funds for housing Hawai`i inmates.
25
42 U.S.C. § 2000cc-1 states:
(a)
General rule
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.
(b) Scope of application
This section applies in any case in which (1) the substantial burden is imposed in a
program or activity that receives Federal
financial assistance; or
(2) the substantial burden affects, or
removal of that substantial burden would
affect, commerce with foreign nations, among
the several States, or with Indian tribes.
In addition, RLUIPA provides that: “A person may assert a
violation . . . as a claim . . . in a judicial proceeding and
obtain appropriate relief against a government.”
§ 2000cc-2(a).
A.
The Government
Under RLUIPA:
The term “government” (A) means –
26
42 U.S.C.
(i) a State, county, municipality, or
other governmental entity created under
the authority of a State;
(ii) any branch, department, agency,
instrumentality, or official of an
entity listed in clause (i); and
(iii) any other person acting under
color of State law[.]
42 U.S.C. § 2000cc-5(4).
The Ninth Circuit applies the § 1983
“color of state law” analysis in the § 2000cc-5(4)(A)(iii)
analysis.
Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d
916, 922 (9th Cir. 2011).
In Florer, the Ninth Circuit stated:
The Supreme Court has explained that “[t]he
traditional definition of acting under color of
state law requires that the defendant in a § 1983
action have exercised power ‘possessed by virtue
of state law and made possible only because the
wrongdoer is clothed with the authority of state
law.’” West v. Atkins, 487 U.S. 42, 49, 108 S.
Ct. 2250, 101 L. Ed. 2d 40 (1988) (quoting United
States v. Classic, 313 U.S. 299, 326, 61 S. Ct.
1031, 85 L. Ed. 1368 (1941)). To determine
whether actions that allegedly caused the
deprivation of a right are fairly attributable to
the state even though they were committed by
private actors, we follow a two-part approach:
“First, the deprivation must be caused by the
exercise of some right or privilege created by the
State or by a rule of conduct imposed by the state
or by a person for whom the State is responsible.”
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102
S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “Second,
the party charged with the deprivation must be a
person who may fairly be said to be a state
actor.” Id. We start with the presumption that
conduct by private actors is not state action.
Sutton [v. Providence St. Joseph Med. Ctr.], 192
F.3d [826,] 835 [(9th Cir. 1999)]. Florer bears
the burden of establishing that Defendants were
state actors. See Flagg Bros., Inc. v. Brooks,
27
436 U.S. 149, 156, 98 S. Ct. 1729, 56 L. Ed. 2d
185 (1978).
Id. (some alterations in original).
Florer also describes the first step of the Lugar
analysis as “whether the deprivation is the result of a
governmental policy.”
Id. (some citations omitted) (citing
Lugar, 457 U.S. at 937, 102 S. Ct. 2744).
For the same reasons
set forth in the discussion of whether Defendant Sakai is a
proper party in Plaintiffs’ claims for prospective equitable
relief, see supra § II., this Court finds that there are genuine
issues of material fact as to the issue of whether the alleged
RLUIPA violations are the result of a governmental policy.
As to the second Lugar factor - whether the defendant
can fairly be considered a state actor - the Ninth Circuit has
stated:
“In order for private conduct to constitute
governmental action, ‘something more’ must be
present.” Sutton, 192 F.3d at 835. The Supreme
Court has instructed that “state action may be
found if, though only if, there is such a ‘close
nexus between the State and the challenged action’
that seemingly private behavior ‘may be fairly
treated as that of the State itself.’” Brentwood
Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 295, 121 S. Ct. 924, 148 L. Ed. 2d 807
(2001) (quoting Jackson v. Metro. Edison Co., 419
U.S. 345, 351, 95 S. Ct. 449, 42 L. Ed. 2d 477
(1974)). Courts have employed various approaches
to determine whether a person may fairly be
considered a state actor. Lee v. Katz, 276 F.3d
550, 554 (9th Cir. 2002). . . .
“Because of the fact-intensive nature of the
inquiry, courts have developed a variety of
28
approaches” to assess whether a private party has
acted under color of state law. Lee, 276 F.3d at
554. The Supreme Court has identified at least
seven such approaches. Brentwood Acad., 531 U.S.
at 296, 121 S. Ct. 924. “Satisfaction of any one
test is sufficient to find state action, so long
as no countervailing factor exists.” Kirtley v.
Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
Florer, 639 F.3d at 924 (some alterations in Florer) (footnote
omitted).
One such test is the “public function” test.
“Under the public function test, when private
individuals or groups are endowed by the State
with powers or functions governmental in nature,
they become agencies or instrumentalities of the
State and subject to its constitutional
limitations.” Lee, 276 F.3d at 554–55 (internal
quotation marks omitted). “The public function
test is satisfied only on a showing that the
function at issue is ‘both traditionally and
exclusively governmental.’” Kirtley, 326 F.3d at
1093 (quoting Lee, 276 F.3d at 555).
Id. at 924-25.
As to the issue of whether CCA can fairly be
considered a state actor under the public function test, this
Court is persuaded by the analysis in Knows His Gun v. Montana,
866 F. Supp. 2d 1235 (D. Mont. 2012).
In that case, the district
court ruled that CCA, the correctional center, and the warden
were “the government” for purposes of RLUIPA, stating:
The CCA Defendants’ actions are fairly
attributable to the state. They were caused by
the exercise of the state’s exclusive power to
incarcerate prisoners. Rendell–Baker v. Kohn, 457
U.S. 830, 842, 102 S. Ct. 2764, 73 L. Ed. 2d 418
(1982) (imprisonment is “traditionally the
exclusive prerogative” of government); West v.
Atkins, 487 U.S. 42, 49–51, 57, 108 S. Ct. 2250,
101 L. Ed. 2d 40 (1988) (a private prison’s power
to engage in this public function is “possessed by
virtue of state law and made possible only because
29
[it] is clothed with the authority of state law”).
Prisoners must be provided reasonable
opportunities to exercise religious freedom.
Florer, 639 F.3d at 925. Here, the Montana
Department of Corrections delegated this
responsibility to the CCA Defendants. Thus, the
CCA Defendants may fairly be said to be state or
“government” actors under RLUIPA. West, 487 U.S.
at 55–57, 108 S. Ct. 2250 (a private person “fully
vested with state authority to fulfill essential
aspects of the [State’s] duty” is a state actor);
Florer, 639 F.3d at 925; Giron v. Corrections
Corp. of Am., 14 F. Supp. 2d 1245, 1249–1251
(D.N.M. 1998) (a private prison serves a public
function delegated to it by the state and is thus
a state actor with respect to performance of that
function). . . .
Id. at 1244-45 (some alterations in Knows His Gun).
This Court
adopts that analysis in the instant case and finds that, for
purposes of Plaintiffs’ RLUIPA claims, CCA can fairly be
considered a state actor under the public function test.
Insofar as Defendants’ Motion seeks a ruling that CCA
is not “the government” for purposes of Plaintiffs’ RLUIPA
claims, Defendants’ Motion is DENIED.
B.
Spending Clause Authority
This Court now turns to Defendants’ argument that
Plaintiffs’ RLUIPA claims against CCA fail because CCA does not
receive federal funds for housing Hawai`i inmates.
In accordance with other circuits, the Ninth
Circuit has held RLUIPA is a valid extension of
Congress’s Spending Clause authority under
Article I of the Constitution, which allows
Congress to condition acceptance of federal funds
by states under certain circumstances. See, e.g.,
Mayweathers v. Newland, 314 F.3d 1062, 1066 (9th
Cir. 2002); Madison v. Virginia, 474 F.3d 118, 124
30
(4th Cir. 2006); Cutter v. Wilkinson, 423 F.3d
579, 584-90 (6th Cir. 2005); Benning v. Georgia,
391 F.3d 1299, 1305-08 (11th Cir. 2004); Charles
v. Verhagen, 348 F.3d 601, 606-11 (7th Cir. 2003);
Sossamon v. Texas, 560 F.3d 316, 328-29 (5th Cir.
2009); Smith v. Allen, 502 F.3d 1255, 1270, 1274
n.9 (11th Cir. 2007); Van Wyhe v. Reisch, 581 F.3d
639, 649 (8th Cir. 2009). Pursuant to Congress’s
Spending Clause authority, Congress has
conditioned a state’s acceptance of federal
financial assistance for “program[s] or
activit[ies]” involving institutionalized persons
on acceptance of the religious protections
afforded under RLUIPA. 42 U.S.C. § 2000cc-1.
Alvarez v. Hill, No. CV 04-884-BR, 2010 WL 582217, at *10 (D. Or.
Feb. 12, 2010) (alterations in Alvarez).
Under RLUIPA, “[t]he term ‘program or activity’ means
all of the operations of any entity as described in paragraph
(1) or (2) of” 42 U.S.C. § 2000d-4a.
Section 2000d-4a states, in
pertinent part:
the term “program or activity” and the term
“program” mean all of the operations of-(1)(A) a department, agency, special purpose
district, or other instrumentality of a State
or of a local government; or
. . . .
any part of which is extended Federal financial
assistance.
(Emphases added.)
For the same reasons set forth in the discussion of
whether Defendant Sakai is a proper party in Plaintiffs’ claims
for prospective equitable relief and in the discussion of whether
the alleged RLUIPA violations are the result of a governmental
31
policy, see supra §§ II., IV.A., this Court finds that there are
genuine issues of material fact as to the issue of whether CCA is
an instrumentality of DPS for purposes of § 2000d-4a(1)(A).
Further, Plaintiffs have provided excerpts of DPS’s
2012 Annual Report.
It includes an Annual Expenditure Report for
Fiscal Year 2012, which reflects that DPS Corrections Programs
received a total of $828,521 in federal funds.
Exh. 18 at 88.]
[Manley Decl.,
Plaintiffs have also presented evidence that CCA
receives federal funds for the incarceration of inmates on behalf
of the United States Marshal Service at Saguaro.
Exh. 28 at ¶ 5.16]
[Manley Decl,
It is irrelevant that the federal funds DPS
receives are not allocated for out-of-state corrections
facilities, and it is irrelevant that the federal funds CCA
receives are not allocated for Hawai`i inmates, because § 2000d4a expressly provides that a state department or an
instrumentality of a state is a program or activity if any part
of the department receives federal funds.
This Court finds, for purposes of the instant Motion,
that DPS is a program or activity under RLUIPA.
Further, insofar
as this Court has found that there are genuine issues of material
fact as to whether CCA is an instrumentality of DPS as to the
16
Exhibit 28, [dkt. no. 548-2,] consists of Plaintiffs’
excerpts of the Declaration of Warden Thomas dated July 30, 2013.
Defendants originally filed the declaration as part of their
July 31, 2013 motion for summary judgment (“2013 Motion”). [Dkt.
no. 361.]
32
religious accommodations at issue in this case, this Court finds
that there are genuine issues of material fact as to whether CCA
is a program or activity for purposes of RLUIPA.
This Court agrees with the reasoning in Dean v.
Corrections Corp. of America, 540 F. Supp. 2d 691 (N.D. Miss.
2008), which addressed whether RLUIPA applied in a case involving
a Hawai`i DPS inmate housed at a CCA facility.
The district
court in Dean stated:
as shown by the documents provided by the
defendants during briefing, the federal government
provides aid to the state of Hawaii’s Department
of Public Safety, which is responsible for
administering corrections in Hawaii. As such, the
Hawaii Department of Public Safety is a
subdivision of Hawaii’s state government that
receives and distributes federal assistance for
corrections—and thus falls under the definition of
“program” or “activity.” In addition, the state
of Hawaii, through its Department of Public
Safety, entered into a contract with Corrections
Corporation of America to take custody of various
Hawaii inmates for the state. As such, for the
purposes of RLUIPA, Corrections Corporation of
America and the Tallahatchie County Correctional
Facility are simply an instrumentality of the
Hawaii Department of Public Safety. Hence, under
RLUIPA, the program or activity placing a burden
on the plaintiff’s exercise of his religion is the
Hawaii Department of Public Safety, which receives
federal financial assistance. The court therefore
has jurisdiction to hear the plaintiff’s claims
against the defendants under Religious Land Use
and Institutionalized Persons Act.
This holding is consistent with the intent of
the drafters of RLUIPA, who included a provision
requiring broad interpretation of the statute to
provide the most protection for religious
exercise: “This chapter shall be construed in
favor of a broad protection of religious exercise,
33
to the maximum extent permitted by the terms of
this chapter and the Constitution.” 42 U.S.C.
§ 2000cc–3 (g) (emphasis added). Under that broad
interpretation, the court finds that a state
government accepting federal funds for prisons may
not dispense with requirements of RLUIPA simply by
contracting with third parties to carry out the
state function of operating prisons.
540 F. Supp. 2d 691 at 693-94 (emphasis in Dean).
Pursuant to the analysis in Dean, which this Court
adopts, if CCA was acting as an instrumentality of DPS in the
decisions at issue in this case, both CCA and DPS placed burdens
upon Plaintiffs’ religious exercise.
As previously stated,
Plaintiffs have at least raised a genuine issue of material fact
for trial as to whether any part of CCA receives federal funds.
Thus, this Court finds that there are genuine issues of material
fact as to the issue of whether CCA is a program or activity
under § 2000d-4a, and therefore whether RLUIPA applies to CCA.
Insofar as Defendants’ Motion seeks a ruling that Plaintiffs’
RLUIPA claims against CCA fail as a matter of law because RLUIPA
does not apply to CCA, Defendants’ Motion is DENIED.17
17
Because this Court has found that there are triable
issues of fact as to the question of whether RLUIPA is
enforceable against CCA pursuant to Congress’s Spending Clause
authority, this Court does not reach Plaintiffs’ alternate
arguments that RLUIPA is enforceable against CCA pursuant to
Congress’s Commerce Clause authority or Congress’s Enforcement
Clause authority.
34
V.
Claims for Damages for Violations of the State Constitution
Defendants next argue that they are entitled to summary
judgment on all of Plaintiffs’ claims seeking damages for
violations of the Hawai`i State Constitution because Hawai`i law
does not recognize a direct cause of action under the Hawai`i
State Constitution.
Plaintiffs respond that there is no Hawai`i
case law prohibiting such claims.
In Gonzalez v. Okagawa, the district court ruled, “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.”
Civil No. 12–00368 RLP, 2013 WL 2423219, at *10 (D.
Hawai`i June 4, 2013) (some citations omitted) (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.”); Maizner v. Hawaii Dep’t of Educ., 405 F.
Supp. 2d 1225, 1240 (D. Haw. 2005); Galario v. Adewundmi, Civ.
No. 07–00159 DAE–KSC, 2009 WL 1227874, at *11 (D. Haw. May 1,
2009) (granting summary judgment against a plaintiff because such
a cause of action has not been recognized)).
Similarly, the district court in Ilae v. Tenn stated:
Hawai`i does not have a statute or other case-law
equivalent to 42 U.S.C. § 1983. Alston v. Read,
35
678 F. Supp. 2d 1061, 1074 (D. Haw. 2010) (citing
Mow by Mow v. Cheeseborough, 696 F. Supp. 1360,
1365 (D. Haw. 1988)). The Hawai`i courts thus far
have declined to recognize a private cause of
action for damages for violations of rights
guaranteed under the state constitution. Galario
v. Adewundmi, Civ. No. 07–00159 DAE–KSC, 2009 WL
1227874 at *11 (D. Haw. 2009) (reversed on other
grounds by Galario v. Adewundmi, 2013 WL 3157511
(9th Cir. 2013)) (citing Makanui v. Dep’t. of
Educ., 6 Haw. App. 397, 403 (1986)). Plaintiff
does not cite to any legal authority in support of
such a claim, and this Court declines to infer
that such a cause of action exists under the
Hawai`i Constitution.
Civ. No. 12–00316 ACK–KSC, 2013 WL 4499386, at *17 (D. Hawai`i
Aug. 20, 2013) (some citations omitted).
This Court has supplemental jurisdiction over
Plaintiffs’ claims alleging violations of the Hawai`i State
Constitution.
See 28 U.S.C. § 1367(a).
“When a district court
sits in diversity, or hears state law claims based on
supplemental jurisdiction, the court applies state substantive
law to the state law claims.”
Mason & Dixon Intermodal, Inc. v.
Lapmaster Int’l LLC, 632 F.3d 1056, 1060 (9th Cir. 2011).
This
Court has recognized that:
When interpreting state law, a federal court is
bound by the decisions of a state’s highest court.
Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422,
427 (9th Cir. 2011). In the absence of a
governing state decision, a federal court attempts
to predict how the highest state court would
decide the issue, using intermediate appellate
court decisions, decisions from other
jurisdictions, statutes, treatises, and
restatements as guidance. Id.; see also
Burlington Ins. Co. v. Oceanic Design & Constr.,
Inc., 383 F.3d 940, 944 (9th Cir. 2004) (“To the
36
extent this case raises issues of first
impression, our court, sitting in diversity, must
use its best judgment to predict how the Hawai`i
Supreme Court would decide the issue.” (quotation
and brackets omitted)).
Evanston Ins. Co. v. Nagano, 891 F. Supp. 2d 1179, 1189 (D.
Hawai`i 2012) (some citations omitted).
This Court agrees with the analysis in Gonzalez and
Ilae, and predicts that the Hawai`i Supreme Court would not
recognize a claim for damages arising directly under the Hawai`i
State Constitution.
This Court therefore concludes that
Defendants are entitled to judgment as a matter of law and GRANTS
Defendants’ Motion as to all of Plaintiffs’ claims for damages
arising directly under the Hawai`i State Constitution.
VI.
Plaintiff Galdones’s Claim Seeking Punitive Damages
In their Reply, Defendants ask this Court to grant
summary judgment on Plaintiff Galdones’s request for punitive
damages associated with his state law retaliation claim.
Defendants contend that they are entitled to summary judgment
because Plaintiff Galdones has not presented sufficient evidence
of an evil mind or reckless indifference to create a triable
issue of fact.
[Reply at 17-19.]
Plaintiffs filed a motion to
strike this argument from the Reply, arguing that it was improper
for Defendants to raise a new argument that Defendants did not
address in the Motion.
[Motion to Strike New Arguments and New
Affidavit in Defendants’ Reply on Motion for Summary Judgment Re:
37
Sovereign Immunity/Damages, filed 7/3/14 (dkt. no. 567).]
This
Court denied the motion to strike, ruling that, in light of the
timing of the Motion in relation to the filing of the 6/2/14
Reconsideration Order and the 6/13/14 Summary Judgment Order, and
in light of the fact that Plaintiffs previously had a full
opportunity to brief the issue, it was proper for Defendants to
renew their request for summary judgment on the punitive damages
issue in the Reply.
[EO, filed 7/10/14 (dkt. no. 575).]
First, insofar as Plaintiff Galdones’s state law
retaliation claim seeks damages directly under the Hawai`i State
Constitution, the claim fails for the reasons set forth supra
§ V.
Further, even if there is an independent legal basis for
Plaintiff Galdones’s state law retaliation claim other than the
Hawai`i State Constitution, he has not identified sufficient
evidence to create a genuine issue of material fact for trial as
to his entitlement to punitive damages.
[T]o prove he or she is entitled to punitive
damages, a plaintiff “must prove by clear and
convincing evidence that the defendant has acted
wantonly or oppressively or with such malice as
implies a spirit of mischief or criminal
indifference to civil obligations, or where there
has been some wilful misconduct or that entire
want of care which would raise the presumption of
a conscious indifference to consequences.”
Fisher v. Grove Farm Co., Inc., 123 Hawai`i 82, 123, 230 P.3d
382, 423 (Ct. App. 2009) (quoting Masaki v. General Motors Corp.,
71 Haw. 1, 16–17, 780 P.2d 566, 575 (1989)).
38
Defendants’ 2013 Motion argued both that Plaintiff
Galdones’s state law retaliation claim was meritless and, even if
the claim itself survived summary judgment, his request for
punitive damages was meritless.
53-58.]
[Mem. in Supp. of 2013 Motion at
In their memorandum in opposition to the 2013 Motion,
Plaintiffs argued that this Court should deny the 2013 Motion as
to Plaintiff Galdones’s state law retaliation claim because “a
trier of fact could conclude that protected activity was a
‘substantial’ factor in the write-up of Galdones.”
[Mem. in Opp.
to 2013 Motion, filed 1/6/14 (dkt. no. 465), at 40.]
Plaintiffs’s memorandum in opposition to the 2013 Motion did not
address Defendants’ punitive damages argument.
As to Plaintiff
Galdones’s state law retaliation claim, Plaintiffs’ concise
statement of facts in opposition to the 2013 Motion (“Plaintiffs’
CSOF in Opposition to 2013 Motion”) states only that he “was
falsely disciplined for using the Hawaiian classes as a ‘legal
medium.’”
[Filed 1/6/14 (dkt. no. 466), at ¶ 155 (citing Pltfs.’
CSOF in Opp. to 2013 Motion, Decl. of Sharla Manley, Exh. 79).18]
Exhibit 79 includes Plaintiff Galdones’s CCA Inmate/Resident
Disciplinary Report, which ultimately led to the disciplinary
segregation at issue in his state law retaliation claim.
In
their memorandum in opposition to Defendants’ motion for
reconsideration of the 3/31/14 Summary Judgment Order, Plaintiffs
18
Exhibit 79 is docket number 470-1.
39
argued that, on its face, Exhibit 79: “raises a reasonable
inference that Galdones was charged with a disciplinary violation
because Defendants thought that Galdones had spoken in favor of
this lawsuit to other inmates in the Native Hawaiian religious
classes[;]” and “raises a reasonable inference that Galdones was
charged with a disciplinary violation because Defendants believed
that he was deviating from the religious protocol suggested by
the spiritual advisor from Hawaii.”
[Mem. in Opp. to Motion for
Reconsideration, filed 4/28/14 (dkt. no. 511), at 13 & n.8.]
Plaintiffs also argued that Defendants’ position that Plaintiff
Galdones was placed in disciplinary segregation because he
disrupted an inmate head count is inconsistent with Exhibit 79,
which does not mention the head count incident.
Plaintiffs
argued that the inconsistencies suggest that the stated reasons
for Plaintiff Galdones’s placement in disciplinary segregation
were pretextual.
[Id. at 4 & nn.9-10.]
Even if this Court accepts Plaintiffs’ interpretation
of Exhibit 79, the exhibit does not provide evidence that the
disciplinary segregation was imposed so “wantonly or oppressively
or with such malice as implies a spirit of mischief or criminal
indifference to civil obligations, or where there has been some
wilful misconduct or that entire want of care which would raise
the presumption of a conscious indifference to consequences.”
See Fisher, 123 Hawai`i at 123, 230 P.3d at 423 (internal
40
quotation marks omitted).
Plaintiff Galdones has not identified
any other evidence that supports his request for punitive
damages.
This Court therefore finds that, even viewing the
record in the light most favorable to Plaintiff Galdones, he has
failed to identify sufficient evidence to raise a genuine issue
of fact for trial as to his entitlement to punitive damages for
his state law retaliation claim.
This Court finds that there are no genuine issues of
material fact as to Plaintiff Galdones’s request for punitive
damages and concludes that Defendants are entitled to judgment as
a matter of law.
To the extent that any portion of Plaintiff
Galdones’s state law retaliation claim remains, Defendants’
Motion is GRANTED as to Plaintiff Galdones’s request for punitive
damages.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment Re: Sovereign Immunity/Damages, filed May 13,
2014, is HEREBY GRANTED IN PART AND DENIED IN PART.
Defendants’
Motion is GRANTED insofar as this Court rules that: 1) Defendant
Sakai is entitled to summary judgment as to any of Plaintiffs’
§ 1983 claims against him seeking damages or retrospective
relief; 2) Plaintiffs’ remaining § 1983 claims and RLUIPA claims
for damages are limited to compensatory damages and nominal
damages; 3) Defendants are entitled to summary judgment as to
41
Plaintiffs’ claims seeking damages or retrospective relief
directly under the Hawai`i State Constitution; and 4) to the
extent that any portion of Plaintiff Galdones’s state law
retaliation claim remains, Defendants are entitled to summary
judgment as to his request for punitive damages.
Defendants’
Motion is DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 31, 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; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RE: SOVEREIGN
IMMUNITY/DAMAGES
42
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