Davis et al v. Abercrombie et al
Filing
644
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' AMENDED SECOND MOTION FOR CLASS CERTIFICATION re 560 Amended MOTION to Certify Class SECOND MOTION FOR CLASS CERTIFICATION filed by Damien Kaahu, Michael Hughes, Tyrone K. N. Galdones, Ellington Keawe, James Kane, III, Robert A. Holbron, Richard Kapela Davis, Kalai K. Poaha. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014. -- 1) This Court CERTIFIES a class, seeking prospective decl aratory and injunctive relief, as to Plaintiffs' remaining claims regarding daily, outdoor, group worship and the remaining claims regarding access to sacred items ("the Prospective Relief Class"). The Prospective Relief Class is defi ned as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are and/or will be confined to Saguaro Correctional Center ("Saguaro" ); c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. The representatives of the Prospective Relief Class shall be Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones, Michael Hughes, and James Kane, III. The class counsel shall be Sharla Manley, Esq., David Keith Kopper, Esq., Moses Haia, Esq., Shawn Westrick, Esq., and James Kawahito, Esq. 2) This Court CERTIF IES a subclass, seeking prospective declaratory and injunctive relief, with regard to: 1) the same claims described supra as to the Prospective ReliefClass; and 2) the remaining state and federal claims regarding lack of access to communal sacred ite ms in protective custody ("the Prospective Relief Subclass"). The Prospective Relief Subclass is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the sta te of Hawai'i; b) who are and/or will be confined to Saguaro; c) in protective custody; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. The repres entative of the Prospective Relief Subclass shall be Plaintiff Kane 3) This Court CERTIFIES a class, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI ("the Damages Class"). The Da mages Class is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the general population; and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. The represent atives of the Damages Class shall be Plaintiffs Davis, Galdones, Hughes, Kane, Damien Kaahu, Robert A. Holbron, Ellington Keawe, and Kalai K. Poaha. 4) This Court CERTIFIES a subclass, seeking nominal damages and other retrospective relief, as t o Counts I, II, III, V, VI, VII, VIII, X, XXII, XXIII, XXIV, and XXVI ("the SHIP Damages Subclass"). The SHIP Damages Subclass is defined as: a) all persons who were convicted of violating crimes under the laws of the State of Hawai 9;i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in the Special Housing Incentive Program (SHIP); and d) who have, according to Saguaro's established procedures, declared that the Native Hawaiian religion is their faith. The representatives of the Protective Custody Damages Subclass shall be Plaintiffs Keawe and Kane. 5) This Court CERTIFIES a subclass, seeking nominal damages and other retrospective relief, as to Counts I through X, and XXII through XXVI ("the Protective Custody Damages Subclass"). The Protective Custody Damages Subclass is defined a s: a) all persons who were convicted of violating crimes under the laws of the State of Hawai'i and were residents of the state of Hawai'i; b) who are or were confined to Saguaro at any time within four years prior to February 7, 2011 until the resolution of this lawsuit; c) in protective custody; and d) who have, according to Saguaros's established procedures, declared that the Native Hawaiian religion is their faith. The representatives of the Protective Custody Damages Subclass shall be Plaintiffs Keawe and Kane. Plaintiffs' Motion is DENIED in all other respects. All other remaining claims shall be prosecuted on behalf of the named Plaintiffs only (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
NEIL ABERCROMBIE, in his
)
official capacity as the
)
Governor of the State of
)
Hawaii; TED SAKAI, in his
)
official capacity as the
)
Director of the Hawaii
Department of Public Safety; )
)
CORRECTIONS CORPORATIONS OF
)
AMERICA,
)
)
Defendants.
_____________________________ )
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
PLAINTIFFS’ AMENDED SECOND MOTION FOR CLASS CERTIFICATION
On July 1, 2014, Plaintiffs Richard Kapela Davis,
Tyrone K.N. Galdones, Robert A. Holbron, Michael Hughes,
Damien Kaahu, James Kane, III, Ellington Keawe, and
Kalai K. Poaha (collectively “Plaintiffs”) filed their Amended
Second Motion for Class Certification (“Motion”).
560.1]
1
[Dkt. no.
Defendants Ted Sakai, in his official capacity as the
This Court granted Plaintiffs leave to incorporate by
reference the supporting documents that they submitted with their
Motion for Class Certification, filed on June 4, 2013 (“2013
Certification Motion”). [Dkt. nos. 310, 311, 312, 314 through
(continued...)
Director of the Hawai`i Department of Public Safety (“Defendant
Sakai” and “DPS”), and Corrections Corporation of America (“CCA,”
collectively “Defendants”) filed their memorandum in opposition
on July 29, 2014, and Plaintiffs filed their reply on August 7,
[Dkt. nos. 589,2 614.]
2014.
The Court finds this matter
suitable for disposition without a hearing pursuant to Rule
LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
The
Court issued its preliminary ruling on the Motion on August 21,
2014.
[Dkt. no. 630.]
The instant Order is this Court’s
decision on the Motion, and this Order supersedes the August 21,
2014 preliminary ruling.
After careful consideration of the Motion, supporting
and opposing memoranda, and the relevant legal authority,
Plaintiffs’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART
for the reasons set forth below.
1
(...continued)
320.] On July 2, 2014, Plaintiffs filed a motion seeking leave
to file publicly Exhibits 44 through 55 in support of the Motion,
which this Court granted in part and denied in part on
August 7, 2014. [Dkt. nos. 563, 613.] Plaintiffs filed the
exhibits on August 14, 2014. [Dkt. no. 623, 628 (unredacted
version of Exh. 44 filed under seal).]
2
On July 29, 2014, Defendants filed a motion seeking leave
to file publicly their memorandum of law, Table 1, and Exhibits 4
through 11. This Court granted the motion on August 7, 2014.
[Dkt. nos. 588, 612.] Defendants filed the documents on
August 8, 2014. [Dkt. no. 615.]
2
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”) and in this
Court’s July 31, 2014 Order Granting in Part and Denying in Part
Defendants’ Motion for Summary Judgment Re: Sovereign
Immunity/Damages (“7/31/14 Summary Judgment Order”).
544, 596.3]
[Dkt. nos.
This Court incorporates the background sections of
the 6/13/14 Summary Judgment Order and the 7/31/14 Summary
Judgment Order in the instant Order.
In their Motion, Plaintiffs seek certification of two
classes, one addressing prospective relief and one addressing
damages.
I.
Prospective Relief
Plaintiffs seek certification pursuant to Fed. R. Civ.
P. 23(b)(2) of a class of persons pursuing prospective and
3
The 6/13/14 Summary Judgment Order is available at 2014 WL
2716856, and the 7/31/14 Summary Judgment Order is available at
2014 WL 3809499.
3
declaratory relief against Defendants (“Prospective Relief
Class”).
Plaintiffs propose the following definition of the
Prospective Relief Class:
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
and/or will be confined to Saguaro Correctional
Center; (c) in general population; and (d) who
declare that Native Hawaiian religion is their
faith.
[Motion at 4.]
The Prospective Relief Class would pursue the
following claims from Plaintiffs’ Second Amended Complaint for
Damages and for Classwide Declaratory and Injunctive Relief
(“Second Amended Complaint”) [filed 8/22/12 (dkt. no. 145)]:
•Counts I (federal free exercise), VI (federal equal protection),
XI (state free exercise), XVI (state equal protection), and
XXII (Religious Land Use and Institutionalized Persons Act,
42 U.S.C. § 2000cc, et seq. (“RLUIPA”)) regarding daily,
outdoor, group worship;
•Counts III (federal free exercise), XIII (state free exercise),
and XXIV (RLUIPA) regarding lack of daily access to personal
amulets and `ohe hano ihu (bamboo nose flute); and
•Counts VIII (federal equal protection) and XVIII (state equal
protection) regarding lack of daily access to personal
amulets, `ohe hano ihu, coconut oil, and malo, kihei, and
pau (native garments).
[Motion at 4-5.]
Plaintiffs also propose three Rule 23(b)(2) subclasses
of persons seeking prospective relief against Defendants
(collectively “Prospective Relief Subclasses”).
4
A.
Administrative Segregation
Plaintiffs propose the following definition of the
“Administrative Segregation Prospective Relief Subclass:”
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
and/or will be confined to Saguaro Correctional
Center; (c) in administrative segregation; and (d)
who declare that Native Hawaiian religion is their
faith.
[Id. at 5.]
The Administrative Segregation Prospective Relief
Subclass would pursue the following claims from the Second
Amended Complaint:
•Counts II (federal free exercise), VII (federal equal
protection), XII (state free exercise), XVII (state equal
protection), and XXIII (RLUIPA) regarding the observance of
Makahiki in administrative segregation;
•Counts III, VIII, XIII, XVIII, and XXIV regarding lack of daily
access to sacred items in administrative segregation; and
•Counts V (federal free exercise), X (federal equal protection),
XV (state free exercise), XX (state equal protection), and
XXVI (RLUIPA) regarding access to a spiritual advisor in
administrative segregation.4
[Id. at 5-6.]
B.
SHIP
Plaintiffs propose the following definition of the
“SHIP Prospective Relief Subclass:”
4
Plaintiffs also include Count XXV in the list of claims
regarding access to a spiritual advisor in restricted custody,
but that appears to be an error because Count XXV relates to
access to a sacred space.
5
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
and/or will be confined to Saguaro Correctional
Center; (c) in the Special Housing Incentive
Program (“SHIP”); and (d) who declare that Native
Hawaiian religion is their faith.
[Id. at 6.]
The SHIP Prospective Relief Subclass would pursue
the same claims as the Administrative Segregation Prospective
Relief Subclass.
C.
[Id.]
Protective Custody
Plaintiffs propose the following definition of the
“Protective Custody Prospective Relief Subclass:”
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
and/or will be confined to Saguaro Correctional
Center; (c) in protective custody; and (d) who
declare that Native Hawaiian religion is their
faith.
[Id. at 7.]
The Protective Custody Prospective Relief Subclass
would pursue the following claims from the Second Amended
Complaint:
•Counts I, VI, XI, XVI, and XXII regarding daily, outdoor, group
worship;
•Counts III, XIII, and XXIV regarding lack of daily access to
personal amulets and `ohe hano ihu and lack of access to
communal sacred items; and
•Counts VIII and XVIII regarding lack of access to personal
amulets, `ohe hano ihu, coconut oil, and malo, kihei, and
pau and lack of access to communal sacred items.
[Id. at 7-8.]
6
II.
Damages
Plaintiffs seek certification pursuant to Rule 23(b)(3)
of a class of persons pursuing damages against CCA (“Damages
Class”).
Plaintiffs propose the following definition of the
Damages Class:
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
or were confined to Saguaro or Red Rock
Correctional Center at any time within four years
prior to the filing of this Complaint until the
resolution of this lawsuit; (c) in general
population; and (d) who declare that Native
Hawaiian religion is their faith.
[Motion at 8.]
Plaintiffs also propose three Rule 23(b)(3) subclasses
of persons seeking damages against CCA (collectively “Damages
Subclasses”).
A.
Administrative Segregation
Plaintiffs propose the following definition of the
“Administrative Segregation Damages Subclass:”
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
or were confined to Saguaro Correctional Center at
any time within four years prior to the filing of
this Complaint until the resolution of this
lawsuit; (c) in administrative segregation; and
(d) who declare that Native Hawaiian religion is
their faith.
[Id.]
7
B.
SHIP
Plaintiffs propose the following definition of the
“SHIP Damages Subclass:”
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
or were confined to Saguaro Correctional Center at
any time within four years prior to the filing of
this Complaint until the resolution of this
lawsuit; (c) in the SHIP; and (d) who declare that
Native Hawaiian religion is their faith.
[Id. at 9.]
C.
Protective Custody
Finally, Plaintiffs propose the following definition of
the “Protective Custody Damages Subclass:”
(a) all persons who were convicted of violating
crimes under the laws of the state of Hawaii and
were residents of the state of Hawaii; (b) who are
or were confined to Red Rock at any time within
four years prior to the filing of this Complaint
until the resolution of this lawsuit; (c) in
protective custody; and (d) who declare that
Native Hawaiian religion is their faith.
[Id.]
STANDARD
“[T]he district court facing a class certification
motion is required to conduct ‘a rigorous analysis’ to ensure
that the Rule 23 requirements are satisfied.”
Conn. Ret. Plans &
Trust Funds v. Amgen Inc., 660 F.3d 1170, 1175 (9th Cir. 2011)
(quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161, 102
S. Ct. 2364, 72 L. Ed .2d 740 (1982)).
8
“Parties seeking class
certification bear the burden of demonstrating that they have met
each of the four requirements of Federal Rule of Civil Procedure
23(a) and at least one of the requirements of Rule 23(b).”
Ellis
v. Costco Wholesale Corp., 657 F.3d 970, 979-80 (9th Cir. 2011)
(citations omitted).
In the instant case, Plaintiffs seek
certification pursuant to Rule 23(b)(2) and (b)(3).
Rule 23
states, in pertinent part:
(a) Prerequisites. One or more members of a
class may sue or be sued as representative parties
on behalf of all members only if:
(1) the class is so numerous that joinder of
all members is impracticable;
(2) there are questions of law or fact
common to the class;
(3) the claims or defenses of the
representative parties are typical of the
claims or defenses of the class; and
(4) the representative parties will fairly
and adequately protect the interests of the
class.
(b) Types of Class Actions. A class action may be
maintained if Rule 23(a) is satisfied and if:
. . . .
(2) the party opposing the class has acted
or refused to act on grounds that apply
generally to the class, so that final
injunctive relief or corresponding
declaratory relief is appropriate respecting
the class as a whole; or
(3) the court finds that the questions of
law or fact common to class members
predominate over any questions affecting only
individual members, and that a class action
9
is superior to other available methods for
fairly and efficiently adjudicating the
controversy. The matters pertinent to these
findings include:
(A) the class members’ interests in
individually controlling the prosecution
or defense of separate actions;
(B) the extent and nature of any
litigation concerning the controversy
already begun by or against class
members;
(C) the desirability or undesirability
of concentrating the litigation of the
claims in the particular forum; and
(D) the likely difficulties in managing
a class action.
The Rule 23(a) requirement are known as: “(1) numerosity;
(2) commonality; (3) typicality; and (4) adequacy of
representation.”
Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir.
2014) (footnote omitted).
Where the party also seeks certification of subclasses,
each subclass “must independently meet Rule 23’s prerequisites.”
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616
SOM–RLP, 2014 WL 1669158, at *16 (D. Hawai`i Apr. 28, 2014)
(emphasis in Baker) (citing Betts v. Reliable Collection Agency,
Ltd., 659 F.2d 1000, 1005 (9th Cir. 1981) (noting that a subclass
“must independently meet all of rule 23’s requirements for
maintenance of a class action”)).
10
This district court has recognized that:
“Rule 23 does not set forth a mere pleading
standard. A party seeking class certification
must affirmatively demonstrate his compliance with
the Rule—that is, he must be prepared to prove
that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.”
Wal–Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,
2551 (2011) (emphasis in original). Analyzing
whether Rule 23’s prerequisites have been met will
“frequently entail overlap with the merits of the
plaintiff’s underlying claim . . . [because] class
determination generally involves considerations
that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.”
Comcast Corp. v. Behrend, 133 S. Ct. 1426, 1432
(2013).
Id. at *3-4 (alterations in Baker).
DISCUSSION
I.
Prejudicial Delay
Defendants first argue that this Court must deny
Plaintiffs’ Motion because the ruling comes three and a half
years after the filing of the original Complaint and only weeks
before the September 30, 2014 scheduled trial date.
Defendants
argue that they have been prejudiced by the delay, and this Court
should deny the Motion on that basis without even reaching the
analysis of Rule 23(a) and (b).
Rule 23(c)(1) states: “At an early practicable time
after a person sues or is sued as a class representative, the
court must determine by order whether to certify the action as a
class action.”
Plaintiffs filed the original Complaint on
February 7, 2011 in state court, and Defendants removed the
11
action on March 8, 2011.
[Dkt. no. 1.]
On March 22, 2012,
Plaintiffs filed a Motion to Compel Class Certification.
Plaintiffs sought an order compelling Defendants to produce
discovery that Plaintiffs argued was indispensable in identifying
the putative class.
[Dkt. no. 66.]
On May 11, 2012, the
magistrate judge issued an order granting the motion in part and,
on May 25, 2012, Defendants moved to reconsider the order.
nos. 85, 89.]
[Dkt.
The magistrate judge orally denied the motion for
reconsideration on July 31, 2012.5
[Minutes (dkt. no. 122).]
On August 8, 2012, the magistrate judge orally ordered
Plaintiffs to file their motion for class certification by
October 31, 2012.
[Minutes (dkt. no. 133).]
On October 18,
2012, however, the magistrate judge vacated that deadline.
[Minutes (dkt. no. 195).]
By the November 15, 2012 status
conference, Defendants had just sent their production of class
discovery to Plaintiffs, and the magistrate judge ordered
Defendants to produce, inter alia, a privilege log to Plaintiffs
by December 6, 2012.
[Minutes (dkt. no. 211).]
The parties were
still addressing issues related to the privilege log in February
2013.
[Minutes, filed 2/7/13 (dkt. no. 228).]
As previously noted, Plaintiffs filed their 2013
Certification Motion on June 4, 2013.
5
This Court ruled that, in
The magistrate judge issued a written order denying the
motion for reconsideration on September 20, 2012. [Dkt. no.
171.]
12
the interests of judicial economy, the parties should not brief
the 2013 Certification Motion until this Court ruled on
Defendants’ pending motion for summary judgment.
7/31/13 (dkt. no. 364).]
[EO, filed
This Court later deemed the 2013
Certification Motion withdrawn and gave Plaintiffs leave to refile it after the hearing on Defendants’ motion for summary
judgment.
[EO, filed 8/21/13 (dkt. no. 373).]
On January 27,
2014, this Court held a hearing on, inter alia, Defendants’
motion for summary judgment, and this Court issued its written
order addressing that motion, and others, on March 31, 2014
(“3/31/14 Summary Judgment Order”).
[Dkt. no. 497.6]
On April 8, 2014, Plaintiffs filed their Second Motion
for Class Certification (“2014 Certification Motion”).
498.]
[Dkt. no.
This Court continued the hearing on the 2014 Certification
Motion from June 30, 2014 to August 11, 2014.
4/21/14 (dkt. no. 508).]
[Minutes, filed
The instant Motion is the amended
version of the 2014 Certification Motion to address the 6/13/14
Summary Judgment Order.
[Motion at 2.]
This Court later vacated
the hearing and decided to consider the Motion as a non-hearing
motion.
[EO, filed 8/4/14 (dkt. no. 603).]
6
The 3/31/14 Summary Judgment Order, which is available at
2014 WL 1321006, is the original version of the 6/13/14 Summary
Judgment Order. This Court amended the 3/31/14 Summary Judgment
Order after granting in part and denying in part Defendants’
motion for reconsideration of the 3/31/14 Summary Judgment Order.
[Dkt. nos. 500 (motion), 529 (order).]
13
Under the circumstances of this case, the Court finds
that Plaintiffs did not unduly delay seeking class certification.
Further, a significant portion of Defendants’ prejudice argument
addresses Plaintiffs’ request to certify the Damages Class and
the Damages Subclasses.
In light of this Court’s rulings
imposing significant limitations on the damages class and
subclasses that this Court ultimately certifies, CCA will not
suffer undue prejudice as a result of certification.
Defendants
also argue that class certification at this time would be
prejudicial to them because “the parties have a firm trial set
for September 30, 2014,” and there will be insufficient time to
notify absent class members.
are mistaken.
[Mem. in Opp. at 6.]
Defendants
In fact, on August 21, 2014, this Court vacated
the September 30, 2014 trial date in light of a criminal case
scheduled to begin on September 23, 2014 and expected to conclude
at the end of the October.
[Dkt. no. 631.]
The trial in the
instant case is currently scheduled to begin on March 17, 2015.
[Second Amended Rule 16 Scheduling Order, filed 8/28/14 (dkt. no.
638), at ¶ 1.]
In light of the continuance of the September 30,
2014 trial date, which was unrelated to class certification
issues, Defendants have not identified any prejudice that
warrants denial of class certification.
This Court therefore finds that this is the earliest
practicable time that it could consider whether class
14
certification was appropriate.
II.
Class Certification as to Claims for Prospective Relief
This Court first turns to the Rule 23(a) analysis.
A.
Numerosity
This Court has recognized that:
The numerosity inquiry “requires examination
of the specific facts of each case and imposes no
absolute limitations.” Gen. Tel. Co. of the Nw.,
Inc. v. E.E.O.C., 446 U.S. 318, 330, 100 S. Ct.
1698, 64 L. Ed. 2d 319 (1980). Courts, however,
have found the numerosity requirement to be
satisfied when a class includes at least 40
members. See Consol. Rail Corp. v. Town of Hyde
Park, 47 F.3d 473, 483 (2d Cir. 1995) (noting that
“numerosity is presumed at a level of 40 members”)
(citation omitted); In re Nat’l W. Life Ins.
Deferred Annuities Litig., 268 F.R.D. 652, 660
(S.D. Cal. 2010) (noting that “[c]ourts have found
joinder impracticable in cases involving as few as
forty class members”) (citations omitted);
E.E.O.C. v. Kovacevich “5” Farms, No. CV–F–06–165
OWW/TAG, 2007 WL 1174444, at *21 (E.D. Cal.
Apr. 19, 2007) (noting that “[c]ourts have
routinely found the numerosity requirement
satisfied when the class comprises 40 or more
members”); Ikonen v. Hartz Mountain Corp., 122
F.R.D. 258, 262 (S.D. Cal. 1988) (noting that
“[a]s a general rule, classes of 20 are too small,
classes of 20–40 may or may not be big enough
depending on the circumstances of each case, and
classes of 40 or more are numerous enough”).
Davis v. Four Seasons Hotel Ltd., 277 F.R.D. 429, 435 (D. Hawai`i
2011) (alterations in Davis).
1.
Prospective Relief Class
As this Court noted in the 6/13/14 Order, there are 179
inmates at Saguaro Correctional Center (“Saguaro”) that have
15
registered as practitioners of the Native Hawaiian religion.
2014 WL 2716856, at *23.
Defendants do not challenge the
numerosity requirement as to the Prospective Relief Class’s
claims regarding daily, outdoor, group worship.
Defendants,
however, argue that the Prospective Relief Class does not meet
the numerosity requirement as to their claims regarding access to
sacred items.
[Mem. in Opp. at 8.]
In support of the instant Motion, Plaintiffs have
provided declarations by Plaintiffs Davis, Kane, Hughes, and
Keawe, [2013 Certification Motion, Decl. of Sharla Manley
(“Manley 2013 Decl.”), Exhs. 30, 32-36,7] as well as Plaintiff
Holbron and more than thirty putative members of the classes
and/or subclasses [2013 Certification Motion (dkt. nos. 320, 3201 to 320-40)].
Defendants argue that the Prospective Relief
Class does not meet the numerosity requirement as to the claims
regarding access to sacred items because: only five “challeng[e]
or complain[] against the denial of a personal amulet[;]” none of
the named Plaintiffs or the putative class members who submitted
declarations “even mentions coconut oil[;]” and “only eight
inmates stated a desire for in-cell daily access to bamboo nose
7
The Manley 2013 Declaration is docket number 310-3.
Exhibits 30 and 33 are declarations by Plaintiff Davis. [Dkt.
nos. 318-7, 318-10.] Exhibits 32 and 35 are declarations by
Plaintiff Kane. [Dkt. nos. 318-9, 319-1.] Exhibit 34 is a
declaration by Plaintiff Hughes, [dkt. no. 319,] and Exhibit 36
is a declaration by Plaintiff Keawe [dkt. no. 319-2].
16
flutes.”
[Mem. in Opp. at 9-10.]
Plaintiffs argue that their submissions do not
represent “an exhaustive list of every incident involving the
denial of access to an amulet or another sacred item.
they are illustrative[.]”
[Reply at 4.]
Rather,
Plaintiffs argue that
the Prospective Relief Class are all “subject to the same
discriminatory and unlawful set of policies and face a risk that
their rights will be violated.”
[Id. at 3.]
This Court agrees.
In the 6/13/14 Summary Judgment Order, this Court
stated that:
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 may also check out a
ukulele from the chapel.” [Thomas Reply Decl. at
¶ 122.] 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.] . . .
2014 WL 2716856, at *29.8
All of Saguaro’s inmates who are in
8
The document that the 6/13/14 Summary Judgment Order
referred to as the “Thomas Decl.” is the Declaration of Warden
Thomas, submitted with the Concise Statement of Facts in Support
of Defendants’ Motion for Summary Judgment, filed July 31, 2013.
[Dkt. no. 361-23.] The document referred to as the “Thomas Reply
Decl.” is the Declaration of Warden Thomas, submitted with the
reply in support of Defendants’ Motion for Summary Judgment,
(continued...)
17
the general population and who are practitioners of the Native
Hawaiian religion are subject to the Retention List, and the
policies, procedures, and practices associated therewith.
Plaintiffs allege that Defendants’ conduct with regard to the
sacred items remaining at issue in this case is unconstitutional
and/or violates RLUIPA.
Thus, all of Saguaro’s inmates who are
in the general population and who are practitioners of the Native
Hawaiian religion are arguably at risk of the same violation of
their rights.
This Court therefore FINDS that the Prospective Relief
Class satisfies the numerosity requirement as to both the
remaining claims regarding daily, outdoor, group worship and the
remaining claims regarding access to sacred items.
2.
Prospective Relief Subclasses
First this Court notes that, although the Motion
requests certification of the Administrative Segregation
Prospective Relief Subclass, the SHIP Prospective Relief
Subclass, and the Protective Custody Prospective Relief Subclass,
Plaintiffs’ Memorandum in Support of the Motion blurs the
distinction between these three subclasses.
See, e.g., Mem. in
Supp. of Motion at 5 (“segregation and protective custody
subclasses should be certified”), 10 (“Common questions arise
8
(...continued)
filed January 13, 2014.
[Dkt. no. 483-10.]
18
from the disparate treatment of Native Hawaiian religious
practitioners in restrictive custody.”).
Insofar as Plaintiffs
have expressly moved for certification of a subclass for each
group, this Court will begin its analysis by examining each
proposed subclass separately.
a.
SHIP Prospective Relief Subclass
In the Motion, Plaintiffs assert that “[t]he proposed
segregation subclass consists of more than 20 inmates.”
[Mem. in
Supp. of Motion at 20 (citing Decl. of Robert A. Holbron, filed
12/20/13 (dkt. no. 436-4) (“Holbron Summary Judgment Decl.”),9 at
¶ 34).]
Plaintiff Holbron was in administrative segregation from
July 17, 2007, until he was assigned to SHIP around April 10,
2009.
Holbron remained in SHIP until February 2012.
Summary Judgment Decl. at ¶ 9.]
[Holbron
He states that, “in all the time
that [he] was in segregation/SHIP at Saguaro, [he] can recall
only one limited Makahiki Service being permitted for him in
segregation.
At this Makahiki service, more than 20 other Native
Hawaiian inmates gathered in the unit’s dayroom.”
[Id. at ¶ 34.]
Although the declaration is ambiguous, Plaintiff
Holbron must have been referring to a Makahiki service for SHIP
9
The Holbron Declaration was part of his Opposition to
Defendants’ Motion for Summary Judgment and Counter-Motion for
Summary Judgment on His Federal Claims. The version of the
Holbron Declaration filed on December 20, 2013 was undated and
unsigned. Plaintiffs filed the original version on December 27,
2013. [Dkt. no. 456-1.] It is signed and dated December 23,
2013.
19
inmates because SHIP II inmates are permitted to socialize with
other SHIP II inmates in a dayroom pod for one hour a day, five
times a week.
SHIP III inmates also have dayroom pod time for
two hours a day, five day times a week (at separate times from
the SHIP II inmates).
Inmates in administrative segregation,
however, are not allowed to gather with inmates from the general
population, SHIP, or protective custody, and apparently
administrative segregation inmates are not permitted dayroom time
when they can gather with one another.
Inmates in SHIP I have
the same restrictions as the inmates in administrative
segregation.
[Letter dated 8/28/14 to this Court from
Defendants’ counsel transmitting the parties’ joint descriptions
of Saguaro’s administrative segregation, SHIP, and protective
custody program, filed 9/16/14 (dkt. no. 641).10]
Further, the
Reply clarifies that the twenty inmates that Plaintiffs refer to
are inmates in SHIP.
[Reply at 5.]
Defendants do not contest
Plaintiffs’ assertion that there are “20 segregation inmates
registered as Native Hawaiians.”
[Mem. in Opp. at 8.]
This
Court therefore finds, for purposes of the instant Motion, that
there are twenty potential members of the SHIP Prospective Relief
10
This Court will refer to the descriptions, each of which
is one page, as the “Administrative Segregation Description,” the
“SHIP Description,” and the “Protective Custody Description.”
The parties filed these descriptions pursuant to this Court’s
preliminary ruling on the Motion. [Filed 8/21/14 (dkt. no.
630).]
20
Subclass.
Defendants argue that a class of twenty is too small to
satisfy the numerosity requirement, emphasizing that the United
States Supreme Court has indicated that a class of fifteen would
be too small.
[Id. (citing Gen. Tel. Co. of Nw. v. EEOC, 446
U.S. 318, 330 (1980)).]
Plaintiffs argue that twenty SHIP
inmates is sufficiently numerous to render joinder impractical,
particularly because the group of potential class members is
fluid.
See, e.g., Reply at 5 (stating that, “at any given time,
there are at least 20 Native Hawaiian practitioners” in SHIP).
Other district courts have recognized that the fluidity
of a class of inmates supports a finding that joinder is
impracticable.
See, e.g., Decoteau v. Raemisch, Civil Action No.
13–cv–3399–WJM–KMT, 2014 WL 3373670, at *2 (D. Colo. 2014)
(citing U.S. ex rel. Green v. Peters, 153 F.R.D. 615, 618 (N.D.
Ill. 1994); Andre H. v. Ambach, 104 F.R.D. 606, 611 (S.D.N.Y.
1985); Arthur v. Starrett City Assocs., 98 F.R.D. 500, 505–06
(E.D.N.Y. 1983)).
According to the SHIP Description:
SHIP is a pro-social behavioral modification
step-down program utilized to transition inmates
from administrative segregation to general
population. Privileges are introduced as inmates
progress from the first to the last step: SHIP I,
SHIP II, and SHIP III. Each step lasts six months
but an inmate can be returned to a previous step
for engaging in rules violations or non-pro-social
behavior. . . .
21
In light of the fact that the intended duration of SHIP is
eighteen months, this Court cannot find that the SHIP Prospective
Relief Subclass is so fluid as to overcome the fact that there
are only twenty potential members.
This Court therefore FINDS
that the SHIP Prospective Relief Subclass does not meet the
numerosity requirement, i.e. the subclass is not so numerous that
joinder is impracticable.11
b.
Administrative Segregation
Prospective Relief Subclass
Plaintiffs have not identified any evidence of the
number of prospective members of the Administrative Segregation
Prospective Relief Subclass.
This Court therefore FINDS that
Plaintiffs have failed to meet their burden of establishing that
the Administrative Segregation Prospective Relief Subclass
satisfies the numerosity requirement.
Plaintiffs may argue that a combined subclass of inmate
practitioners of the Native Hawaiian religion in both
administrative segregation and SHIP would meet the numerosity
requirement.
Insofar as Plaintiffs have not identified evidence
of the number of potential members in the Administrative
Segregation Prospective Relief Subclass, this Court cannot
determine whether a combined subclass would meet the numerosity
11
This Court notes that the deadline to add parties has
passed. [Second Amended Rule 16 Scheduling Order, filed 8/28/14
(dkt. no. 638), at ¶ 5.] That, however, does not render joinder
impracticable for purposes of Rule 23(a)(1).
22
requirements.
Further, for the reasons set forth infra
Discussion Sections II.B.2.a., C.2.a., and D.2.a., this Court
finds that it is not appropriate to combine the Administrative
Segregation Prospective Relief Subclass and the SHIP Prospective
Relief Subclass.
c.
Protective Custody
Prospective Relief Subclass
Plaintiffs assert that the proposed Protective Custody
Prospective Relief Subclass consists of at least thirty-seven
inmates.
The Motion, however, did not cite any evidence for this
representation.
[Mem. in Supp. of Motion at 20.]
In the Reply,
Plaintiffs state, again without citing any supporting evidence,12
that “there were 37-43 inmates who were practicing Native
Hawaiian religion at any given time” in protective custody at Red
Rock.13
[Reply at 5.]
Defendants, however, do not contest that
12
Although not cited in the Memorandum in Support of the
Motion, Ms. Manley’s declaration states that she has reviewed the
records that Defendants produced in response to a court order
compelling class discovery [filed 5/11/12 (dkt. no. 85)]. She
states that, according to these records, “there are at least 37
inmates who have participated in Native Hawaiian religious
programming at Red Rock” Correctional Center (“Red Rock”).
[Motion, Decl. of Sharla Manley (“Manley 2014 Decl.”) at ¶¶ 1011.] Plaintiffs, however, did not attach any of these records as
exhibits, and Ms. Manley only identifies the records by batesstamp numbers because they “have been designated attorneys’ eyes
only under that order.” [Id.] This Court notes that Plaintiffs
could have filed a motion for leave to file those exhibits under
seal. This Court therefore declines to consider Ms. Manley’s
representations about the content of the class discovery.
13
As this Court noted in the 6/13/14 Order, by May 30,
(continued...)
23
there are thirty-seven potential members of the Protective
Custody Prospective Relief Subclass.
Instead, they argue that
thirty-seven is not sufficient to meet the numerosity
requirement.
[Mem. in Opp. at 8.]
This Court therefore finds,
for purposes of the instant Motion, that there are thirty-seven
potential members of the Protective Custody Prospective Relief
Subclass.
According to the Protective Custody Description,
“[p]rotective custody (‘PC’) is a housing classification utilized
to segregate inmates who require protection from other inmates at
the same facility. . . .
segregation.”
PC is a non-punitive type of
Because there is no specified duration of time
that a protective custody inmate may be in that program, this
Court finds that the Protective Custody Prospective Relief
Subclass is a fluid class for purposes of the numerosity
analysis.
This Court also emphasizes that the number of
potential members of this subclass is very close to the number
that is generally considered presumptively sufficient for the
numerosity analysis.
This Court therefore FINDS that the
Protective Custody Prospective Relief Subclass satisfies the
numerosity requirement.
13
(...continued)
2013, all of the Hawai`i inmates who were assigned to Red Rock
were permanently transferred to Saguaro. 2014 WL 2716856, at *2
n.4 (citations omitted).
24
B.
Commonality
The United States Supreme Court has stated that, in
order to meet the commonality requirement, the proposed class
members’ claims
must depend upon a common contention . . . . That
common contention, moreover, must be of such a
nature that it is capable of classwide resolution
— which means that determination of its truth or
falsity will resolve an issue that is central to
the validity of each one of the claims in one
stroke.
“What matters to class certification . . . is
not the raising of common ‘questions’ — even
in droves — but, rather the capacity of a
classwide proceeding to generate common
answers apt to drive the resolution of the
litigation. Dissimilarities within the
proposed class are what have the potential to
impede the generation of common answers.”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011)
(quoting Richard A. Nagareda, Class Certification in the Age of
Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)).
Plaintiffs need not show, however, that
“every question in the case, or even a
preponderance of questions, is capable of class
wide resolution. So long as there is ‘even a
single common question,’ a would-be class can
satisfy the commonality requirement of Rule
23(a)(2).” Wang [v. Chinese Daily News, Inc.],
737 F.3d [538,] 544 [(9th Cir. 2013)] (quoting
Wal–Mart, 131 S. Ct. at 2556); see also Mazza v.
Am. Honda Motor Co., Inc., 666 F.3d 581, 589 (9th
Cir. 2012) (noting that “commonality only requires
a single significant question of law or fact”).
Thus, “[w]here the circumstances of each
particular class member vary but retain a common
core of factual or legal issues with the rest of
the class, commonality exists.” Evon v. Law
Offices of Sidney Mickell, 688 F.3d 1015, 1029
25
(9th Cir. 2012) (quotation marks and citation
omitted).
Parsons v. Ryan, 754 F.3d 657, 675 (9th Cir. 2014) (footnote
omitted).
1.
Prospective Relief Class
Defendants argue that the Prospective Relief Class does
not meet the commonality requirement because “the existence of
CCA policies or practices is not in serious dispute,” and
[t]he success or failure of Plaintiffs’ RLUIPA and
First Amendment claims necessarily turns on
individual inquiries — whether a Native-Hawaiian
practice is sincerely held by a given
practitioner, the subject security classification
implicated by the practice (whether it is an
inmate’s desire to retain an amulet despite his
history of contraband, or a combative or peaceful
inmate’s desire to attend outdoor, group worship),
and whether the CCA practices are based on
compelling security interests without a lessrestrictive alternative. . . .
[Mem. in Opp. at 15 (footnote omitted).]
The Ninth Circuit,
however, has rejected this type of argument.
In Parsons v. Ryan, the defendants - Arizona Department
of Corrections (“ADC”) officials - appealed the certification of
a class and subclass of Arizona prison inmates who alleged that
they were subjected to systemic Eighth Amendment violations.
F.3d 657, 662 (9th Cir. 2014).
754
The defendants argued that the
plaintiffs did not satisfy the commonality requirement because “a
systemic constitutional violation [of the sort alleged here] is a
collection of individual constitutional violations, each of which
26
hinges on the particular facts and circumstances of each case.”
Id. at 675 (alteration in Parsons) (footnote, citation, and
internal quotation marks omitted).
The Ninth Circuit rejected
this argument, noting that “[t]he Complaint does not allege that
the care provided on any particular occasion to any particular
inmate (or group of inmates) was insufficient, but rather that
ADC policies and practices of statewide and systemic application
expose all inmates in ADC custody to a substantial risk of
serious harm.”
Id. at 676 (citation omitted).
Similarly, in the instant case, the claims of the
proposed Prospective Relief Class - as opposed to the proposed
Damages Class - do not allege that a particular inmate’s RLUIPA
or constitutional rights were violated on a particular occasion.
The Prospective Relief Class would litigate claims that
Defendants’ policies and practices at Saguaro expose all class
members to ongoing and/or potential violations of their rights
under RLUIPA and the state and federal constitutions.
It is undisputed that, pursuant to Defendants’ policies
and procedures, inmates in Saguaro’s general population who
practice the Native Hawaiian religion cannot have daily, outdoor,
group worship.
It is also undisputed that Saguaro has a
Retention List identifying the religious items that inmates can
possess.
Further, although Saguaro theoretically allows inmates
in the general population who practice the Native Hawaiian
27
religion to have a personal amulet in their cells, Saguaro also
requires that the amulet be provided by an approved vendor.
Saguaro has been unable to identify a vendor for such items.
There are questions of law and fact common to the proposed
Prospective Relief Class, such as whether the policies are the
least restrictive means available and whether Saguaro enforces
comparable policies on inmate practitioners of other religions.
There may be some factual differences among the potential class
members, such as whether Saguaro can impose additional
limitations on inmates who are in the general population but who
have a history of violent infractions.
These differences,
however, do not defeat commonality because commonality does not
require “complete congruence.”
See Rodriguez v. Hayes, 591 F.3d
1105, 1122 (9th Cir. 2010) (citation and quotation marks
omitted).
This Court therefore FINDS that the claims of the
proposed Prospective Relief Class have enough common questions of
law and fact to meet the commonality requirement.
2.
Subclasses
a.
Administrative Segregation and
SHIP Prospective Relief Subclasses
Insofar as Plaintiffs have failed to establish the
numerosity requirement for the proposed Administrative
Segregation Prospective Relief Subclass or the proposed SHIP
Prospective Relief Subclass, this Court does not need to address
28
the issue of whether those individual subclasses satisfy the
other Rule 23(a) requirements.
As to the possible subclass of
both administrative segregation practitioners and SHIP
practitioners, the two programs share the common element that the
inmates in each group are not allowed to have communal gatherings
with inmates of any other group.
SHIP I inmates have the same
restrictions as inmates in administrative segregation.
However,
SHIP II inmates are allowed to “recreate as a group on the
SHIP II . . . group recreation yard” in the “dayroom pod,”
although.
SHIP III inmates also have group recreation time,
although at different times from the SHIP II inmates.
SHIP II
inmates and SHIP III inmates are also allowed to participate in
educational classes in their housing unit.
Thus, a combined
subclass of administrative segregation inmates and SHIP inmates
would not have common questions of law or fact regarding the
claims involving group gatherings.
In addition, although administrative segregation
inmates and SHIP inmates who are registered as practitioners of
the Native Hawaiian religion may possess the same religious items
in their cells, SHIP II and SHIP III inmates have less security
risks, and therefore more privileges, regarding the retention of
personal items in their cells.
Further, because of the SHIP II
and SHIP III inmates’ ability to engage in group activity,
including attending education classes, they may argue in favor of
29
access to communal sacred items.
Because of those distinctions,
a combined subclass of administrative segregation inmates and
SHIP inmates would not have common questions of law or fact as to
claims regarding access to additional sacred items.14
According to the Administrative Segregation Description
and the SHIP Description, Defendants represent that the policies
and procedures for an individual inmate’s access to the chaplain
or other religious advisors are the same for both groups.
As to
both groups, however, Plaintiffs dispute what Saguaro actually
allows.
Thus, it appears that the same policies and practices
regarding individual access to a chaplain or other spiritual
advisor apply to the administrative segregation inmates and the
SHIP inmates.
Although there may be some factual issues
regarding individual access to a spiritual advisor that differ
from one inmate to another, a combined subclass of administrative
segregation inmates and SHIP inmates would have common questions
of law and fact.
This Court therefore FINDS that a combined subclass of
administrative segregation inmates and SHIP inmates would meet
the commonality requirement, but only as to the claims regarding
14
This Court also notes that, because of the sharp
distinction in the restrictions on SHIP I inmates in comparison
to SHIP II inmates and SHIP III inmates, this Court would also
find that the proposed SHIP Prospective Relief Subclass, by
itself, would not meet the commonality requirement as to the
claims involving group gatherings or as to the claims regarding
access to sacred items.
30
individual access to a spiritual advisor.
b.
Protective Custody
Prospective Relief Subclass
Based on the Protective Custody Description, the
members of the proposed Protective Custody Prospective Relief
Subclass are all subject to the same policies and procedures
affecting their practice of the Native Hawaiian religion.
Although there may be some factual issues that differ from one
inmate to another, the proposed Protective Custody Prospective
Relief Subclass has common questions of law and fact.
The common
questions are similar to the common questions for the Prospective
Relief Class, but a subclass is required because the prospective
custody inmates are kept separated at all times from the general
population inmates.
This Court therefore FINDS that the proposed
Protective Custody Prospective Relief Subclass meets the
commonality requirement.
C.
Typicality
This Court has stated that:
The typicality requirement is satisfied “when
each class member’s claim arises from the same
course of events, and each class member makes
similar legal arguments to prove the defendant’s
liability.” Rodriguez v. Hayes, 591 F.3d 1105,
1124 (9th Cir. 2010) (citation and quotation marks
omitted). Under this standard, the class
representatives’ claims need only be “reasonably
coextensive with those of absent class members;”
they need not be “identical or substantially
identical to those of the absent class members.”
Staton v. Boeing Co., 327 F.3d 938, 957 (9th Cir.
2003) (citations and quotation marks omitted).
31
Davis, 277 F.R.D. at 436-37.
Further, the United States Supreme
Court has noted that:
[t]he commonality and typicality requirements of
Rule 23(a) tend to merge. Both serve as
guideposts for determining whether under the
particular circumstances maintenance of a class
action is economical and whether the named
plaintiff’s claim and the class claims are so
interrelated that the interests of the class
members will be fairly and adequately protected in
their absence. Those requirements therefore also
tend to merge with the adequacy-of-representation
requirement, although the latter requirement also
raises concerns about the competency of class
counsel and conflicts of interest. General
Telephone Co. of Southwest v. Falcon, 457 U.S.
147, 157–158, n.13, 102 S. Ct. 2364, 72 L. Ed. 2d
740 (1982). . . .
Wal-Mart, 131 S. Ct. at 2551 n.5 (some alterations in Wal-Mart).
1.
Prospective Relief Class
In the commonality analysis, this Court noted that the
members of the proposed Prospective Relief Class are subject to,
inter alia, the same prohibition on daily, outdoor, group worship
and the same requirement that personal amulets must be purchased
from an approved vendor, and Saguaro has been unable to identify
one.
The members of the proposed class make the same legal
arguments about Defendants’ liability based on these, and other
related, policies and procedures.
There are undoubtedly some
differences, based on things like prior history of violence or
other rule infractions, affecting the individual class members’
abilities to participate in the requested worship sessions or to
have the requested access to sacred items.
32
Further, some of the
class members may believe certain religious items to be more
significant than others.
Those factual differences, however, are
minor in comparison to the similarities in the class members’
legal arguments.
The crux of the legal arguments relevant to
each member of the proposed Prospective Relief Class is that
Defendants’ policies and procedures regarding group worship and
access to sacred items for practitioners of the Native Hawaiian
religion violate their rights under RLUIPA and the federal and
state constitutions.
This Court therefore FINDS that Plaintiffs’ claims are
“reasonably coextensive with those of absent class members,” see
Staton, 327 F.3d at 957, and that the proposed Prospective Relief
Class satisfies the typicality requirement.
2.
Subclasses
a.
Administrative Segregation and
SHIP Prospective Relief Subclasses
As previously noted, there are fewer security risks
associated with, and therefore more privileges accorded to, SHIP
II inmates and SHIP III inmates, as compared to SHIP I inmates
and inmates in administrative segregation.
Thus, the policies
and procedures regarding group activity and access to additional
sacred items that are applicable to SHIP II inmates and SHIP III
inmates have significant differences from the policies and
procedures on those subjects that are applicable to SHIP I
inmates and inmates in administrative segregation.
33
See supra
Discussion Section II.B.2.a.
Because of those distinctions, each
member of a combined subclass of administrative segregation
inmates and SHIP inmates would not make similar legal arguments
as to Defendants’ liability regarding claims involving either
group activity or access to additional sacred items.15
As to individual inmate access to spiritual advisors,
for the same reasons as set forth in the commonality analysis,
see id., this Court finds that the members of a combined subclass
of administrative segregation inmates and SHIP inmates would make
similar legal arguments as to Defendants’ liability.
This Court therefore FINDS that a combined subclass of
administrative segregation inmates and SHIP inmates would meet
the typicality requirement, but only as to the claims regarding
individual access to a spiritual advisor.
b.
Protective Custody
Prospective Relief Subclass
Similarly, for the same reasons as set forth in the
commonality analysis, see supra Discussion Section II.B.2.b.,
this Court finds that the members of the proposed Protective
Custody Prospective Relief Subclass would make similar legal
15
This Court also notes that the legal arguments that SHIP
I inmates would raise would not be similar to the legal arguments
that SHIP II inmates and SHIP III inmates would raise. Thus,
this Court would find that the proposed SHIP Prospective Relief
Subclass, by itself, would not meet the typicality requirement as
to the claims involving group activity or the claims regarding
access to sacred items.
34
arguments as to Defendants’ liability.
This Court therefore
FINDS that the proposed Protective Custody Prospective Relief
Subclass meets the typicality requirement.
D.
Adequacy
This Court has stated that:
In determining whether the named plaintiffs
will fairly and adequately protect the interests
of the class, courts in the Ninth Circuit ask two
questions: “(1) Do the representative plaintiffs
and their counsel have any conflicts of interest
with other class members, and (2) will the
representative plaintiffs and their counsel
prosecute the action vigorously on behalf of the
class?” Staton, 327 F.3d at 957 (citing Hanlon v.
Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.
1998)). This requirement is satisfied as long as
one of the class representatives is an adequate
class representative. Local Joint Exec. Bd. of
Culinary/Bartender Trust Fund v. Las Vegas Sands,
Inc., 244 F.3d 1152, 1162 n.2 (9th Cir. 2001).
Davis, 277 F.R.D. at 437.
“Adequate representation depends on,
among other factors, an absence of antagonism between
representatives and absentees, and a sharing of interest between
representatives and absentees.”
Ellis v. Costco Wholesale Corp.,
657 F.3d 970, 985 (9th Cir. 2011) (citations omitted).
This Court will first address the adequacy of the
representation that Plaintiffs’ counsel would provide, because
that analysis is the same for all proposed classes and
subclasses.
35
Plaintiffs’ counsel, Sharla Manley, Esq., is a staff
attorney with the Native Hawaiian Legal Corporation (“NHLC”).16
She states that NHLC is the only law firm in the country that
specializes in cases involving Native Hawaiian rights.
2014 Decl. at ¶¶ 2, 6.]
[Manley
Ms. Manley also states that co-counsel
for Plaintiffs, the law firm of Kawahito, Shraga and Westrick,
“has developed an established class action practice.”
[Id. at
Specifically, James Kawahito, Esq.,17 and Shawn Westrick,
¶ 7.]
Esq., “have litigated numerous class action lawsuits, in various
stages on both the plaintiff and defense side.”
[Id.]
Over the
past five years, Plaintiffs’ counsel have conducted extensive
interviews at Saguaro and Red Rock, in addition to interviewing
Plaintiffs, consulted with experts, and researched a myriad of
factual and legal issues.
Further, Plaintiffs’ counsel has
engaged in extensive discovery and dispositve motions practice
for this case.
Thus, Plaintiffs’ counsel have, and will continue
to, devote significant resources to this case.
[Id. at ¶¶ 3-5,
9.]
16
Plaintiffs’ counsel, David Keith Kopper, Esq., and
Moses Haia, III, Esq., are also with NHLC.
17
This Court notes that, although Mr. Kawahito is a member
of the bar in Hawai`i, and Plaintiffs have listed his name on
some of their filings, he has never filed a notice of appearance
in this case. He therefore is not listed on the district court’s
docket as counsel of record.
36
Defendants do not challenge the competence of
Plaintiffs’ counsel, or their zeal for the case.
Defendants,
however, argue that the “motives and strategies” of Plaintiffs’
counsel “present the specter of divergent interests with absent
class members,” and that counsel have placed their interests and
the interests of Plaintiffs ahead of the interests of the other
members of the proposed classes and subclasses.
22-23.]
[Mem. in Opp. at
Defendants argue that Plaintiffs’ counsel unduly delayed
bringing the instant Motion and in asserting that Plaintiffs were
pursuing claims for damages, instead of only declaratory and
injunctive relief.
This Court, however, has already found that
Plaintiffs did not unduly delay seeking class certification.
supra Discussion Section I.
See
Further, the Second Amended
Complaint clearly prays for an award of compensatory damages for
“Plaintiffs and all other class members.”
[Second Amended
Complaint at pg. 129, ¶ 15.]
Defendants also argue that the fact that Plaintiffs’
counsel presented some claims and arguments that were
unsuccessful proves that counsel’s interests have diverged from
the class members’ interests.
Defendants point to: the inclusion
of the Governor as a defendant; the inclusion of a claim based on
Native Hawaiian gathering rights; and the argument in favor of
per-diem damages rates.
Although this Court ultimately found
37
that these claims and arguments were without merit,18 this Court
does not find that the mere fact that Plaintiffs’ counsel raised
these claims and arguments indicates that there are conflicts of
interest between counsel and the class members.
Finally, Defendants argue that Plaintiffs’ counsel will
not adequately represent the proposed classes and subclasses
because Plaintiffs’ counsel have pursued political agendas in
this case.
This Court emphasizes that political or legislative
questions are beyond the scope of this case.
Further, this Court
cannot find that Plaintiffs’ counsel have engaged in anything
improper regarding political or legislative issues that may be
related to this case.
There is no evidence that Plaintiffs’ counsel have a
conflict of interest with the members of any of the proposed
classes or subclasses.
This Court therefore FINDS that
Plaintiffs’ counsel would provide adequate representation to any
class or subclass certified in this case.
This Court now turns
to the question of whether Plaintiffs are adequate
18
In this Court’s Order Granting Defendant Neil
Abercrombie’s Motion for Judgment on the Pleadings, this Court
dismissed all of the claims against Governor Abercrombie in the
Second Amended Complaint and the Supplemental Complaint with
prejudice. This Court also dismissed with prejudice Plaintiffs’
claim based on gathering rights. Davis v. Abercrombie, Civil No.
11–00144 LEK–BMK, 2013 WL 5204982, at *23 (D. Hawai`i Sept. 13,
2013) (“9/13/13 Order”). In the 7/31/14 Summary Judgment Order,
this Court ruled that the potentially available damages for
Plaintiffs’ remaining § 1983 claims and RLUIPA claims are limited
to compensatory and nominal damages. 2014 WL 3809499, at *18.
38
representatives for the proposed Prospective Relief Class and
Subclasses.
1.
Prospective Relief Class
The proposed representatives of the Prospective Relief
Class are Plaintiffs Davis, Galdones, Hughes, Kane, and Keawe.
[Motion at 2.]
In the 6/13/14 Summary Judgment Order, however,
this Court noted that it previously dismissed Plaintiff Keawe’s
federal claims based on daily religious congregation for failure
to exhaust his administrative remedies.
2014 WL 2716856, at *10
n.15 (citing Davis v. Abercrombie, Civil No. 11–00144 LEK–BMK,
2013 WL 1568425, at *13 (D. Hawai`i Apr. 11, 2013)).19
Because
Plaintiff Keawe cannot pursue the RLUIPA and § 1983 claims
regarding daily group worship, this Court finds that his
interests are distinct from the interests of Plaintiffs Davis,
Galdones, Hughes, and Kane, and from the interests of the other
members of the proposed Prospective Relief Class.
This Court
therefore finds that Plaintiff Keawe would not be an adequate
representative of the Prospective Relief Class.
Defendants first argue that Plaintiffs Davis, Galdones,
Hughes, and Kane would not be adequate representatives of the
Prospective Relief Class because they “have divergent interests
from one another and the class, as evidenced by the 40-page
19
This Court will refer to the April 11, 2013 order as the
“4/11/13 Exhaustion Order.”
39
‘Tentative Settlement Agreement’ 16 inmates (including 4
Plaintiffs) proposed.”
[Mem. in Opp. at 20 (footnote omitted).]
Sixteen Saguaro inmates, who declared themselves to be
practitioners of the Native Hawaiian religion, signed a notice
stating that the Tentative Settlement Agreement
presents a comprehensive compilation of the Native
Hawaiian Religious programs [they] seek to have
established at all CCA and PSD facilities to
protect [their] State and Federal Constitutional
Rights to freely express [their] religious beliefs
and present [them] with the opportunity to
practice the Native Hawaiian religion within
correctional facilities while balancing the
legitimate penalogical interests of
Administrations with these rights.
[Mem. in Opp., Decl. of Rachel Love (“Love Decl.”), Exh. 1 at
PLAINTIFFS_0000320.20]
The Tentative Settlement Agreement was
transmitted with a memorandum dated March 19, 2009 to “Interested
Native Hawaiian Religious Authority, Kapuna and Na Kahu” from
“Native Hawaiian Religious, Spiritual and Cultural Group, Saguaro
Correctional Center.”
[Id. at PLAINTIFFS_0000318.]
It is signed
by Myles S. Breiner, and it asks the recipients to “evaluate and
critique the attached proposal.”
[Id.]
Defendants have not identified any specific part of the
Tentative Settlement Agreement that indicates that Plaintiffs
Galdones and Hughes’s interests diverge from the interests of
20
Plaintiffs Galdones and Hughes, proposed representatives
of the Prospective Relief Class, signed the notice, as did
Plaintiffs Kaahu and Poaha. [Love Decl., Exh. 1 at
PLAINTIFFS_0000320.]
40
Plaintiffs Davis and Kane or the members of the proposed
Prospective Relief Class.
Nor have Defendants presented any
evidence that the Tentative Settlement Agreement was ever
memorialized into an agreement that is legally binding upon
Plaintiffs Galdones and Hughes.
In addition, this Court
emphasizes that the Tentative Settlement Agreement was not
prepared in connection with the instant case, and it was
apparently drafted approximately two years before Plaintiffs
filed this action.
This Court therefore cannot find that
anything that in the Tentative Settlement indicates that
Plaintiffs Galdones and Hughes’s interests in the instant case
diverge from the interests of Plaintiffs Davis and Kane or the
proposed Prospective Relief Class.
In a related argument, Defendants assert that
Plaintiffs Davis and Galdones are not adequate representatives of
the Prospective Relief Class because: they previously filed other
legal actions challenging Saguaro’s programming for the
practitioners of the Native Hawaiian religion;21 and Plaintiff
Galdones is pursuing a retaliation claim in this action.
21
Defendants raise this argument regarding Plaintiffs Davis
and Holbron. [Mem. in Opp. at 20 n.14 (some citations omitted)
(citing Davis v. Hawaii, CV09-1081-PHX-PGR (LOA) (D. Ariz. Sept.
24, 2009); Bush v. Hawaii, No. 04-00096 DAE-KSC, 2011 WL 563564
(D. Haw. Jan. 20, 2011)).] The adequacy argument regarding
Plaintiff Holbron relates to the combined subclass. Plaintiff
Galdones was also one of the plaintiffs in Bush, and this Court
assumes that Defendants also wish to apply this argument to him.
41
Defendants claim that the prior actions show that Plaintiffs
Davis and Galdones each “have his own agenda,” and Plaintiff
Galdones’s retaliation claim shows that “he might be motivated to
abandon class members to pursue his own interests.”
Opp. at 20 n.14.]
[Mem. in
Again, Defendants do not identify any specific
aspect of those prior cases or Plaintiff Galdones’s retaliation
claim that conflicts with the interests of the other proposed
representatives or the members of the proposed Prospective Relief
Class.
The Ninth Circuit has stated that:
a district court retains the flexibility to
address problems with a certified class as they
arise, including the ability to decertify. “Even
after a certification order is entered, the judge
remains free to modify it in the light of
subsequent developments in the litigation.” Gen.
Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160,
102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982); see also
Rodriguez v. West Publ’g Corp., 563 F.3d 948, 966
(9th Cir. 2009) (“A district court may decertify a
class at any time.”); Cummings [v. Connell], 316
F.3d [886,] 896 [(9th Cir. 2003)] (finding “the
district court’s approach [to be] entirely
appropriate” where the court determined that a
potential class “conflict was too speculative at
the time [of the certification motion] to prevent
finding the named plaintiffs to be adequate
representatives,” but “remained willing to
reconsider and decertify the class if . . . there
was evidence of an actual conflict”); Armstrong v.
Davis, 275 F.3d 849, 871 n.28 (9th Cir. 2001)
(“Federal Rule of Civil Procedure 23 provides
district courts with broad discretion to determine
whether a class should be certified, and to
revisit that certification throughout the legal
proceedings before the court.”). What a district
court may not do is to assume, arguendo, that
problems will arise, and decline to certify the
42
class on the basis of a mere potentiality that may
or may not be realized. . . .
United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied
Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v.
ConocoPhillips Co., 593 F.3d 802, 809-10 (9th Cir. 2010) (some
alterations in United Steel).
This Court finds that Defendants’ arguments about the
conflict among Plaintiffs Davis, Galdones, Hughes, and Kane and
between one or more of them and the members of the proposed
Prospective Relief Class are too speculative to warrant denial of
certification based on a failure to identify an adequate class
representative.
If, after certification of any class or subclass
in this case, an actual conflict arises between the appointed
representatives or between one or more of the appointed
representatives and the class or subclass, Defendants may bring a
motion for decertification.
Defendants also argue that Plaintiffs Davis, Galdones,
Hughes, and Kane are not adequate representatives of the proposed
Prospective Relief Class because
Plaintiffs appear to have relinquished complete
control of this litigation to Plaintiffs’
counsel[,] . . . lack[] even a basic understanding
of their duties as representative parties, [and]
hav[e] little to no understanding of significant
rulings made by the Court during the litigation or
the claims that remain in this case after summary
judgment rulings.
[Mem. in Opp. at 21.]
This district court, however, has
43
recognized that:
It is true that “class representative status
may properly be denied where the class
representatives have so little knowledge of and
involvement in the class action that they would be
unable or unwilling to protect the interests of
the class against the possibly competing interests
of the attorneys.” Baffa v. Donaldson, Lufkin &
Jenrette Sec. Corp., 222 F.3d 52, 61 (2d Cir.
2000) (internal quotation omitted). However,
“[i]t is hornbook law . . . [that] in a complex
lawsuit, [when] the defendant’s liability can be
established only after a great deal of
investigation and discovery by counsel against a
background of legal knowledge, the representative
need not have extensive knowledge of the facts of
the case in order to be an adequate
representative.” Gunnells v. Healthplan Servs.,
Inc., 348 F.3d 417, 430 (4th Cir. 2003). While
the named Plaintiffs do not appear to know either
the technical aspects of plumbing construction or
the legal elements of some of their claims, the
record does not suggest that they “have abdicated
any role in the case beyond that of furnishing
their names as plaintiffs.” Pryor v. Aerotek, 278
F.R.D. 516, 529–530 (C.D. Cal. 2011). . . .
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616
SOM–RLP, 2014 WL 1669158, at *10-11 (D. Hawai`i Apr. 28, 2014)
(some alterations in Baker).
The district court emphasized that
the proposed representatives were “sincere in their desire to
explore any misconduct by [Defendant Castle & Cooke Homes Hawaii,
Inc.].”
Id. at *11 (citations omitted).
In arguing that Plaintiffs’ counsel will not provide
adequate representation because they are focused on obtaining
monetary relief, Defendants state that “Plaintiffs’ primary goal
is to achieve greater religious practices” at Saguaro.
44
[Mem. in
Opp. at 24.]
Thus, even Defendants concede that Plaintiffs
Davis, Galdones, Hughes, and Kane have a sincere desire to obtain
the relief sought by the proposed Prospective Relief Class.
This
Court therefore finds that their lack of understanding of the
legal and procedural aspects of this case is not a barrier to
their service as class representatives.
This Court FINDS that Plaintiffs Davis, Galdones,
Hughes, and Kane are adequate representatives of the proposed
Prospective Relief Class.
2.
Subclasses
a.
Administrative Segregation and
SHIP Prospective Relief Subclasses
Plaintiff Holbron is the proposed representative of
both the Administrative Segregation Prospective Relief Subclass
and the SHIP Prospective Relief Subclass.
[Motion at 3.]
According to the Administrative Segregation Description and the
SHIP Description, no Plaintiff is currently assigned either to
administrative segregation or SHIP.
Plaintiff Holbron was in
administrative segregation from the date he was admitted to
Saguaro, on or around July 17, 2007, until he moved to SHIP.
He
was in SHIP from approximately April 10, 2009 to February 2012.
[Holbron Summary Judgment Decl. at ¶¶ 8-9.]
Thus, Plaintiff
Holbron has not been in administrative segregation in over five
years, and he has not been in SHIP for over two years.
This
Court therefore cannot find that he has shared interests with
45
inmates in either administrative segregation or inmates in SHIP.
Moreover, in the 6/13/14 Order, this Court stated:
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.
2014 WL 2716856, at *5.
Plaintiff Holbron may not be able to
pursue any claims for prospective relief regarding the practice
of the Native Hawaiian religion in administrative segregation or
SHIP.
This Court therefore FINDS that Plaintiff Holbron would
not be an adequate representative of: the proposed Administrative
Segregating Prospective Relief Subclass; the proposed SHIP
Prospective Relief Subclass; or a combined Prospective Relief
Subclass of administrative segregation inmates and SHIP
inmates.22
22
This Court will not allow Plaintiffs additional time to
identify other potential representatives from administrative
segregation and SHIP. Plaintiff Holbron has not been in either
administrative segregation or SHIP since February 2012, and
Plaintiffs have known that he may not be able to prosecute any
claims for prospective declaratory and injunctive relief since
this Court filed the 3/31/14 Summary Judgment Order, 2014 WL
1321006. Thus, Plaintiffs have had ample time to identify an
(continued...)
46
b.
Protective Custody
Prospective Relief Subclass
Plaintiffs Kane and Keawe are the proposed
representatives of the Protective Custody Prospective Relief
Subclass.
[Motion at 3.]
The parties’ Protective Custody
Description confirms that both are currently assigned to
Saguaro’s protective custody pod.
For the reasons set forth
supra Discussion Section II.D.1., this Court: finds that
Plaintiff Keawe would not be an adequate representative of the
Protective Custody Prospective Relief Subclass; and rejects
Defendants’ arguments challenging Plaintiff Kane’s ability to
serve as the representative of the subclass.
This Court
therefore FINDS that Plaintiff Kane would be an adequate
representative of the proposed Protective Custody Prospective
Relief Subclass.
E.
Summary of the Court’s Rule 23(a) Findings
This Court FINDS that the proposed Prospective Relief
Class, with Plaintiffs Davis, Galdones, Hughes, and Kane as the
class representatives and Sharla Manley, David Keith Kopper,
Moses Haia, Shawn Westrick, and James Kawahito23 as class
counsel, meets the requirements of Fed. R. Civ. P. 23(a).
22
(...continued)
alternative representative for each of those proposed subclasses.
23
Mr. Kawahito’s appointment as class counsel would be
conditioned upon his filing of a formal notice of appearance in
this case.
47
Further, this Court FINDS that the proposed Protective Custody
Prospective Relief Subclass, with Plaintiff Kane as the
representative of the subclass and Ms. Manley, Mr. Kopper,
Mr. Haia, Mr. Westrick, and Mr. Kawahito as counsel for the
subclass, meets the requirements of Rule 23(a).
This Court also FINDS that the proposed Administrative
Segregation Prospective Relief Subclass and the SHIP Prospective
Relief Subclass do not meet the requirements of Rule 23(a).
This
Court therefore DENIES Plaintiffs’ Motion insofar as this Court
declines to certify either the proposed Administrative
Segregation Prospective Relief Subclass or the SHIP Prospective
Relief Subclass.
Further, this Court FINDS that a combined
Prospective Relief Subclass of administrative segregation inmates
and SHIP inmates would not satisfy the requirements of Rule
23(a).
This Court therefore turns to the Rule 23(b) analysis
for the proposed Prospective Relief Class and the proposed
Protective Custody Prospective Relief Subclass.
F.
Rule 23(b) Analysis
Plaintiffs’ proposed class and subclass may satisfy
Rule 23(b) by meeting the criteria in either Rule 23(b)(1),
(b)(2), or (b)(3).
Plaintiffs argue that both the proposed
Prospective Relief Class and the proposed Protective Custody
Prospective Relief Subclass satisfy Rule 23(b)(2).
48
[Motion at 2-
3.]
This district court has stated:
“Class certification under Rule 23(b)(2) requires
that the primary relief sought is declaratory or
injunctive.” Rodriguez v. Hayes, 578 F.3d 1032,
1051 (9th Cir. 2009) (internal quotations omitted)
superseded on other grounds by Rodriguez v. Hayes,
591 F.3d 1105 (9th Cir. 2010). “The rule does not
require [a court] to examine the viability or
bases of class members’ claims for declaratory and
injunctive relief, but only to look at whether
class members seek uniform relief from a practice
applicable to all of them.” Rodriguez, 591 F.3d
at 1125. “[I]t is sufficient to meet the
requirements of Rule 23(b)(2) that ‘class members
complain of a pattern or practice that is
generally applicable to the class as a whole.’”
Id. (quoting Walters v. Reno, 145 F.3d 1032, 1047
(9th Cir. 1998)). . . .
R.P.-K. ex rel. C.K. v. Dep’t of Educ., Hawaii, 272 F.R.D. 541,
551 (D. Hawai`i 2011) (alterations in R.P.-K.).
1.
Prospective Relief Class
The parties opposing class certification - CCA and
Defendant Sakai on behalf of DPS - have acted on grounds that
uniformly apply to all inmates in the general population at
Saguaro who have registered as practitioners of the Native
Hawaiian religion.
Plaintiffs seek prospective declaratory and
injunctive relief addressing Defendants’ policies and procedures.
Thus, the relief that Plaintiffs seek would be appropriate for
the proposed class as a whole.
This Court therefore FINDS that
the proposed Prospective Relief Class meets the criteria set
forth in Rule 23(b)(2).
49
Insofar as this Court has found that the proposed
Prospective Relief Class satisfies both Rule 23(a) and Rule
23(b), this Court GRANTS Plaintiffs’ Motion as to the proposed
Prospective Relief Class.
2.
Protective Custody Prospective Relief Subclass
Similarly, CCA and DPS have acted on grounds that
uniformly apply to all inmates in protective custody at Saguaro
who have registered as practitioners of the Native Hawaiian
religion.
Plaintiffs seek prospective declaratory and injunctive
relief addressing Defendants’ policies and procedures.
Thus, the
relief that Plaintiffs seek would be appropriate for the proposed
subclass as a whole.
This Court therefore FINDS that the
proposed Protective Prospective Relief Subclass meets the
criteria set forth in Rule 23(b)(2).
Insofar as this Court has found that the proposed
Protective Custody Prospective Relief Subclass satisfies both
Rule 23(a) and Rule 23(b), this Court GRANTS Plaintiffs’ Motion
as to the proposed Protective Custody Prospective Relief
Subclass.
This Court now turns to Plaintiffs’ request to certify
a class and subclasses addressing damages.
III. Class Certification as to Claims for Damages
At the outset, this Court emphasizes that, in the
7/31/14 Summary Judgment Order, it ruled that: Plaintiffs’
50
remaining § 1983 claims and RLUIPA claims for damages are limited
to compensatory damages and nominal damages; and Plaintiffs
cannot seek damages for their remaining claims based on the state
constitution.
2014 WL 3809499, at *18.
The 7/31/14 Summary
Judgment Order also stated:
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 [42
U.S.C.] § 1997e(e). Plaintiffs cannot pursue
claims for damages based on their spiritual
injuries without a prior showing of physical
injury.
Id. at *10 (some alterations in 7/31/14 Summary Judgment Order).
This Court also ruled that Plaintiffs could not seek damages for
their alleged spiritual injuries because they have not made the
required showing of physical injury.
Id.
Thus, this Court could
not certify class or subclass seeking damages for spiritual
injury, or any other form of mental or emotional injury, because
no Plaintiff would be an adequate representative.
This Court
will only address whether it is appropriate to certify the
proposed Damages Class and/or the proposed Damages Subclasses to
seek compensatory and nominal damages.
51
A.
Compensatory Damages
Even assuming, arguendo, that Plaintiffs could satisfy
the numerosity and adequacy requirements for the proposed Damages
Class and/or the proposed Damages Subclasses, Plaintiffs could
not satisfy the commonality and typicality requirements.
The
determination of entitlement to, and the amount of, compensatory
damages would require examination of an individual inmate’s
alleged deprivation of rights on specific occasions.
For
example, examining whether an inmate was entitled to compensatory
damages for the denial of access to a personal amulet would
require the consideration of: the character of the individual
amulet at issue; and whether there were case-specific reasons for
its confiscation, such as history of violent use of the amulet or
hiding contraband in the amulet.
See, e.g., Mem. in Opp. at 9
(noting that Plaintiff Davis’s personal amulet was a kukui nut,
and potential class members’ personal amulets included hooks,
niho mano, shells, kukui nut lei, and a necklace made of the
inmate’s hair (citing Doc. 466-1, ¶¶ 30-42; Doc. 320-9, ¶ 15;
Doc. 320-2, ¶ 17; Doc. 320-4, ¶ 8; Doc. 320-39, ¶ 15)).24
Such
inquiries are not capable of class-wide resolution, and the
24
Docket number 466-1 is the Declaration of Richard Davis
attached to the Amended Separate Concise Statement of Facts in
Opposition to Defendants’ Motion for Summary Judgment, filed
January 6, 2014 (“Plaintiffs’ Responsive CSOF”). Docket numbers
320-9, 320-2, 320-4, and 320-39 are declarations in support of
the 2103 Certification Motion by, respectively: John DeCambra;
Kekona Anthony; William Jackson Barnes; and Richard Taylor.
52
inmate’s arguments, as a general rule, will not be reasonably
coextensive with each other.
This Court therefore FINDS that Plaintiffs could not
satisfy the commonality and typicality requirements as to any
class or subclass seeking compensatory damages.
In light of this
finding, this Court need not conduct a detailed analysis of
whether the proposed Damages Class and each of the proposed
Damages Subclasses satisfies each of the Rule 23(a) requirements
as to the claims for compensatory damages.
This Court emphasizes
that, although class certification is unwarranted as to
compensatory damages, the named Plaintiffs may pursue their
claims for compensatory damages on an individual basis, unless
precluded by a prior order of this Court.
B.
Nominal Damages
This Court begins its analysis of whether Plaintiffs
are entitled to certification of a damages class (and/or
subclasses) by reviewing the nature and purpose of nominal
damages.
The Ninth Circuit has stated that:
As distinguished from punitive and compensatory
damages, nominal damages are awarded to vindicate
rights, the infringement of which has not caused
actual, provable injury.
Common-law courts traditionally have
vindicated deprivations of certain “absolute”
rights that are not shown to have caused
actual injury through the award of a nominal
sum of money. By making the deprivation of
such rights actionable for nominal damages
without proof of actual injury, the law
53
recognizes the importance to organized
society that those rights be scrupulously
observed; but at the same time, it remains
true to the principle that substantial
damages should be awarded only to compensate
actual injury or, in the case of exemplary or
punitive damages, to deter or punish
malicious deprivations of right.
Carey[ v. Piphus], 435 U.S. [247,] 266, 98 S. Ct.
1042[, 55 L. Ed. 2d 252 (1978)]. Nominal damages,
as the term implies, are in name only and
customarily are defined as a mere token or
“trifling.” See, e.g., id. at 267, 98 S. Ct.
1042; Magnett v. Pelletier, 488 F.2d 33, 35 (1st
Cir. 1973) (per curiam). Although the amount of
damages awarded is not limited to one dollar, the
nature of the award compels that the amount be
minimal. See Romano v. U–Haul Intern., 233 F.3d
655, 671 (1st Cir. 2000). Nominal damages serve
one other function, to clarify the identity of the
prevailing party for the purposes of awarding
attorney’s fees and costs in appropriate cases.
Cf. Farrar v. Hobby, 506 U.S. 103, 111–12, 113 S.
Ct. 566, 121 L. Ed. 2d 494 (1992) (stating that “a
plaintiff who wins nominal damages is a prevailing
party under [42 U.S.C.] § 1988”).
Cummings, 402 F.3d at 942-43.
In Cummings, the Ninth Circuit
held that “when nominal damages are awarded in a civil rights
class action, every member of the class whose constitutional
rights were violated is entitled to nominal damages.”
940.
Id. at
In other words, “[w]here a plaintiff proves a violation of
constitutional rights, nominal damages must be awarded as a
matter of law.”
Id. at 944 (citation omitted).
Plaintiffs’ proposed Damages Class would include all
inmate practitioners of the Native Hawaiian religion at either
Saguaro or Red Rock at any time during the period from four years
54
prior to the filing of this action through the resolution of this
case.
As stated supra Discussion Section III.A., the
determination of whether an inmate’s rights were violated in a
particular instance - such as the confiscation of a sacred item
or the exclusion from a specific religious activity - requires
the determination of issues that are not suitable for class
determination.
Thus, to the extent that the proposed Damages
Class and the proposed Damages Subclasses would seek nominal
damages based on specific incidents that allegedly violated the
proposed members’ rights under RLUIPA or the United States
Constitution, Plaintiffs would not be able to satisfy the
commonality and typicality requirements.
Plaintiffs, however, can also argue that all inmate
practitioners of the Native Hawaiian religion at Saguaro or Red
Rock within the relevant time period were subjected to the same
CCA policies and procedures that allegedly violated their rights
under RLUIPA and/or the United States Constitution.
In this
respect, the analysis of Plaintiffs’ proposed Damages Class and
proposed Damages Subclasses is the same as the analysis of
Plaintiffs’ proposed Prospective Relief Class.
The claims
pursued by the proposed Prospective Relief Class, however, were
limited to prospective declaratory and injunctive relief because
Plaintiffs bring those claims against CCA and Defendant Sakai.
Plaintiffs cannot pursue claims for damages or other
55
retrospective relief against Defendant Sakai because he is not a
person for purposes of § 1983 claims seeking damages or other
retrospective relief.
However, the proposed Damages Class and
the proposed Damages Subclasses would pursue claims against only
CCA, and the prospective relief limitation would not apply.
Plaintiffs, and any damages class or subclass certified, may also
seek retrospective relief and nominal damages against CCA based
on prior policies and procedures that are no longer in effect.25
Whether the CCA policies and procedures violated RLUIPA or were
unconstitutional are issues that are capable of class-wide
resolution, and the class members’ (or subclass members’)
arguments, as a general rule, would be reasonably coextensive
with each other.
It is arguably possible for the proposed
Damages Class and the proposed Damages Subclasses to satisfy the
commonality and typicality requirements.
25
This Court therefore
With the exception of Count XXI (which was dismissed with
prejudice), this Court has not issued any rulings as to the
ultimate merit of any of Plaintiffs’ claims for damages. To the
extent that this Court granted Defendants’ Motion for Summary
Judgment, [filed 7/31/13 (dkt. no. 361),] those rulings were
limited to Plaintiffs’ claims for prospective declaratory and
injunctive relief. See 6/13/14 Summary Judgment Order, 2014 WL
2716856, at *3 (“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.” (emphasis in original)). Further, the
7/31/14 Summary Judgment Order limited the type of damages
available and ruled that damages were only available against CCA
in Plaintiffs’ claims alleging violation of RLUIPA or the United
States Constitution. That order did not contain any ruling on
the merits of those claims.
56
turns to the analysis of whether the proposed Damages Class and
each of the proposed Damages Subclasses meets each of the Rule
23(a) requirements.
1.
Damages Class
a.
Numerosity
As previously noted, there are 179 inmates at Saguaro
that have registered as practitioners of the Native Hawaiian
religion.
2014 WL 2716856, at *23.
In addition, the Damages
Class would include inmate practitioners who were previously
incarcerated at Saguaro or Red Rock but are no longer at either
facility.
Thus, the Damages Class clearly satisfies the
numerosity requirement.
b.
Typicality
To the extent that the claims of the proposed Damages
Class are limited to claims arising from the policies and
procedures applicable at each facility, the proposed class
members who are or were housed at Saguaro present common
questions of law or fact, and the proposed class members who were
housed at Red Rock presents common questions of law or fact.
This Court, however, cannot say that the Damages Class as a whole
present common questions of law or fact.
Thus, separate damages
classes - one class of inmates who are or were housed at Saguaro
(“Saguaro Damages Class”) and one class of inmates who were
housed at Red Rock (“Red Rock Damages Class”) - would meet the
57
commonality requirement.
A separate Saguaro Damages Class would also satisfy the
numerosity requirement.
Based on the existing record, however,
this Court cannot find that a separate Red Rock Damages Class
would satisfy the numerosity requirement.
When Red Rock housed
Hawai`i inmates, the average number was approximately fifty.
[Defs.’ Reply in Supp. of Motion for Summary Judgment (Doc. 361),
Decl. of Warden Stolc, filed 1/13/14 (dkt. no. 483-17), at ¶ 4.]
Plaintiffs have not identified evidence establishing how many Red
Rock inmates (from Hawai`i or otherwise) registered as
practitioners of the Native Hawaiian religion.
A Red Rock
Damages Class would not satisfy Rule 23(a).
c.
Commonality
Insofar as this Court has limited the claims at issue
for the Saguaro Damages Class to claims asserting that Saguaro’s
policies and procedures violated RLUIPA or the United States
Constitution, the claims of the representative Plaintiffs would
be typical of the class’s claims.
Thus, a Saguaro Damages Class
would satisfy the commonality requirement.
d.
Adequacy
Plaintiffs were all proposed representatives of the
Damages Class.
[Motion at 3.]
incarcerated at Saguaro.
Each is, or was previously,
[Manley 2013 Decl., Exh. 33 (Davis
Decl.) at ¶ 3, Exh. 34 (Hughes Decl.) at ¶ 3, Exh. 35 (Kane
58
Decl.) at ¶ 3, Exh. 36 (Keawe Decl.) at ¶ 3;26 2013 Certification
Motion, Decl. of Robert Holbron at ¶ 4; Pltfs.’ Responsive CSOF,
Decl. of Tyrone Galdones at ¶ 3, Decl. of Damien Kaahu at ¶ 3,
Decl. of Kalai Poaha at ¶ 3.]
This Court previously dismissed, for failure to exhaust
his administrative remedies, Plaintiff Keawe’s federal claims
based on: 1) daily religious congregation; and 2) access to an
outdoor altar.
*13.
4/11/13 Exhaustion Order, 2013 WL 1568425, at
This Court also dismissed Plaintiffs Davis, Galdones,
Hughes, Kaahu, and Poaha’s federal claims regarding access to a
spiritual advisor on exhaustion grounds.
Id.
This Court has
ruled that Plaintiff Keawe’s inability to pursue RLUIPA and
§ 1983 claims regarding daily group worship rendered him an
inadequate class representative for the Prospective Relief Class.
See supra Discussion Section II.D.1.
The analysis of who is an
adequate representative of the Saguaro Damages Class, however, is
distinguishable.
The Prospective Relief Class will seek relief
that is specific and unique to each group of claims (worship and
access to sacred items).
Thus, a proposed representative who
cannot pursue one group of claims has very distinct interests
from the proposed representative, and the members, of the
26
Kane’s Declaration and Keawe’s Declaration, both dated in
February 2013, each states that he is incarcerated at Red Rock.
As previously noted, by May 30, 2013, all of the Hawai`i inmates
at Red Rock were transferred to Saguaro. See supra note 13.
59
proposed class who are pursing both types of claims.
In contrast, the Saguaro Damages Class will seek
nominal damages for violation of their rights under RLUIPA and/or
the United States Constitution.
If Plaintiffs prevail and
establish a violation or multiple violations, Plaintiffs and each
class member will be entitled to an award of nominal damages.
The award, however, will be a general nominal damages award
recognizing the violation their rights.
They will not receive an
award of nominal damages for each established violation.
See
Cummings, 402 F.3d at 936 (analyzing the plaintiffs’ argument
that the district court erred in awarding a general nominal
damages award, affirming the district court’s award of $1.00, and
rejecting the plaintiffs argument that the district court should
have awarded “separate nominal damages of $1.00 for each of the
seventeen acts that resulted in a constitutional violation”).
Thus, proposed class representatives who are not pursuing all of
the claims that the other representatives - and the class members
- are pursuing, have different interests.
But, due to the nature
of the relief sought, those differences are not significant and
do not prevent them from being adequate class representatives.
For these reasons, and for the reasons set forth supra
Discussion Section II.D.1., Plaintiffs would be adequate
representatives of a Saguaro Damages Class.
Further, for the
reasons set forth supra Section II.D., Plaintiffs’ counsel would
60
be adequate class counsel for a Saguaro Damages Class.
This Court therefore FINDS that a Saguaro Damages Class
would satisfy the requirements of Rule 23(a).
2.
Administrative Segregation Damages Subclasses
The Motion does not specifically address the Rule 23(a)
factors as they apply to the proposed Damages Class and Damages
Subclasses.
Instead, Plaintiffs rely on their Rule 23(a)
analysis of the proposed Prospective Relief Class and Prospective
Relief Subclasses.
[Mem. in Supp. of Motion at 31-32.]
Plaintiffs have not identified any evidence of the number of
inmate practitioners of the Native Hawaiian religion who are, or
were, in administrative segregation at Saguaro or Red Rock.
Thus, neither a Saguaro Administrative Segregation Damages
Subclasses nor a Red Rock Administrative Segregation Damages
Subclasses would meet the numerosity requirement.
This Court FINDS that neither a Saguaro Administrative
Segregation Damages Subclass nor a Red Rock Administrative
Segregation Damages Subclass would satisfy the requirements of
Rule 23(a).27
27
In the analysis of the Proposed Prospective Relief
Subclasses, this Court discussed the possibility of a combined
subclass of administrative segregation practitioners and SHIP
practitioners. The combination would not be appropriate for the
proposed Damages Subclasses. Because SHIP is a Saguaro program,
there is no Red Rock SHIP Damages Subclass to combine with the
Red Rock Administrative Segregation Damages Subclasses. Further,
the SHIP Damages Subclass for Saguaro is sufficiently numerous by
(continued...)
61
3.
SHIP Damages Subclass
a.
Numerosity
This Court has found that there are twenty potential
members of the SHIP Prospective Relief Subclass, i.e. there are
twenty inmate practitioners of the Native Hawaiian religion
currently in SHIP.
See supra Discussion Section II.A.2.a.
In
light of the fact that the intended duration of that program is
eighteen months, this Court can reasonably infer that there were
more than forty inmate practitioners of the Native Hawaiian
religion in SHIP over the course of the relevant time period
(four years prior the filing of this case until the resolution of
the case).
Thus, the SHIP Damages Subclass would satisfy the
numerosity requirement.
b.
Commonality and Typicality
For the same reasons set forth supra Discussion
Sections II.B.2.a. and C.2.a., the proposed SHIP Damages Subclass
would only meet the commonality requirement and the typicality
requirement as to the claims regarding individual access to a
spiritual advisor.
c.
Adequacy
Plaintiff Holbron is the proposed representative of the
SHIP Damages Subclass.
He was in SHIP from approximately
27
(...continued)
itself.
62
April 10, 2009 to February 2012.
at ¶¶ 8-9.]
[Holbron Summary Judgment Decl.
For this reason, and for the reasons set forth supra
Discussion Section II.D.1., Plaintiff Holbron would be an
adequate representative of the SHIP Damages Subclass.
Further,
for the reasons set forth supra Section II.D., Plaintiffs’
counsel would provide adequate representation for the SHIP
Damages Subclass.
This Court therefore FINDS that the SHIP Damages
Subclass would satisfy the requirements of Rule 23(a), but only
as to the claims regarding individual access to a spiritual
advisor.
4.
Protective Custody Damages Subclasses
a.
Numerosity
Again, Plaintiffs failed to identify any evidence of
the number of inmate practitioners of the Native Hawaiian
religion who are, or have been, in protective custody at Saguaro
or Red Rock.
Based on Defendants’ concession, this Court has
found that there are thirty-seven potential members of the
Protective Custody Prospective Relief Subclass.
Discussion Section II.A.2.c.
See supra
This Court can reasonably infer
that there were more than forty inmate practitioners of the
Native Hawaiian religion in protective custody at Saguaro over
the course of the relevant time period, which spans over seven
years.
Thus, the Saguaro Protective Custody Damages Subclass
63
would satisfy the numerosity requirement.
The Red Rock
Protective Custody Damages Subclass, however, would not satisfy
the numerosity requirement.
b.
Commonality and Typicality
For the same reasons set forth supra Discussion
Sections II.B.2.b. and C.2.b., the proposed Saguaro Protective
Custody Damages Subclass would meet the commonality and
typicality requirements.
c.
Adequacy
Plaintiffs Kane and Keawe are the proposed
representatives of the Saguaro Protective Custody Damages
Subclass.
The parties’ Protective Custody Description confirms
that Plaintiffs Kane and Keawe are currently housed in protective
custody at Saguaro.
For this reason, and for the reasons set
forth supra Discussion Section II.D.1.d., Plaintiffs Kane and
Keawe would be an adequate representatives of the Saguaro
Protective Custody Damages Subclass.
Further, for the reasons
set forth supra Section II.D., Plaintiffs’ counsel would provide
adequate representation for the Saguaro Protective Custody
Damages Subclass.
This Court therefore FINDS that the Saguaro Protective
Damages Subclass satisfies the requirements of Rule 23(a).
This Court next turns to the issue of whether the
proposed Saguaro Damages Class, SHIP Damages Subclass, and
64
Saguaro Protective Custody Damages Subclass also meet the
Rule 23(b) requirements.
C.
Rule 23(b) Requirements
Plaintiffs seek certification of the proposed Damages
Class and the proposed Damages Subclasses pursuant to Rule
23(b)(3).
The two requirements of Rule 23(b)(3) are predominance
and superiority.
Defendants raise the same objections as to all
of the proposed Damages Class and Damages Subclasses.
1.
Predominance
This district court has stated:
“The Rule 23(b)(3) predominance inquiry tests
whether proposed classes are sufficiently cohesive
to warrant adjudication by representation.”
Amchem Products, Inc. v. Windsor, 521 U.S. 591,
623 (1997). “Though there is substantial overlap
between the [commonality and predominance] tests,
the [predominance] test is far more demanding”
Wolin [v. Jaguar Land Rover N. Am., LLC], 617 F.3d
[1168,] 1172 [(9th Cir. 2010)] (internal quotation
omitted). A class cannot meet the predominance
standard if questions relevant to individual
claims “will inevitably overwhelm questions common
to the class.” Comcast [v. Behrend], 133 S. Ct.
[1426,] 1433 [(2013)].
Baker v. Castle & Cooke Homes Hawaii, Inc., Civil No. 11–00616
SOM–RLP, 2014 WL 1669158, at *11 (D. Hawai`i Apr. 28, 2014) (some
alterations in Baker).
Defendants argue that neither Plaintiffs’ proposed
Damages Class nor the proposed Damages Subclasses can satisfy the
predominance requirement because the individualized issues of,
for example, sincerity of belief and extent of the burden upon
65
the religious exercise, will predominate over the common issues
subject to generalized proof.
This Court has ruled that the
Saguaro Damages Class, the SHIP Damages Subclass, and the Saguaro
Protective Custody Damages Subclass would be limited to pursuing
the portions of Plaintiffs’ claims alleging that Saguaro’s
policies and procedures violated RLUIPA or the United States
Constitution.
Further, the recovery by the members of the class
and subclasses will be limited to nominal damages.
In light of
those limitations, the issues that would otherwise require
individualized evidence - such as sincerity and burden - can be
established through generalized or representative proof.
While
it is true that the class (or subclass) members may differ in
degree of sincerity and/or burden, those issues will not dominate
the action in light of the limitations that this Court has placed
on the damages class and subclasses.
The Saguaro Damages Class, the SHIP Damages Subclass,
and the Saguaro Protective Custody Damages Subclass “are
sufficiently cohesive to warrant adjudication by representation.”
See Amchem, 521 U.S. at 623.
This Court therefore FINDS that
they meet the predominance requirement.
2.
Superiority
Rule 23(b)(3) “provides a nonexhaustive list of factors
relevant to the superiority inquiry.”
*16.
Baker, 2014 WL 1669158, at
Again, the limitations that this Court has placed on the
66
damages class and subclasses are critical.
The limitation to
only nominal damages for the class members might suggest that
individual members would have an interest in controlling the
prosecution of separate actions.
Even in separate actions, those
individuals would still be limited to only compensatory damages
and nominal damages, unless they can prove physical injury.
supra Discussion Section III.A.
See
The relatively small amount of
damages that individual plaintiffs could recover in separate
actions and the complexities of this type of case would be strong
disincentives against pursing individual actions.
Similarly,
although the limitation of the class and subclasses to issues of
policies and procedures that violate RLUIPA or the United States
Constitution might suggest that individual inmates would have an
interest in presenting their individual violations in separate
actions, it would be difficult for individual inmates to litigate
cases similar to this one.
Thus, it is desirable to concentrate
these claims in a class action.
This Court does not find that managing the damages
class/subclasses would be unusually difficult in this case
because Plaintiffs’ counsel are knowledgeable and experienced in
class action litigation.
Defendants object that they cannot
cross-examine affidavits of class members who cannot be
physically present at trial, and that they will not have had the
opportunity to depose class members other than the named
67
Plaintiffs.
First, as noted in the predominance analysis,
individual issues - such as degree of sincerity, burden, and
prior history - have a limited role in light of the limitations
that this Court has placed on the damages class and subclasses.
Further, the parties can make other arrangements, such as having
other inmates testify at trial through video-conference.
In
light of the fact that the trial date in this case has been
continued to March 17, 2015, the parties may stipulate to, or
seek leave from the magistrate judge, to conduct a reasonable
amount of discovery - including depositions - necessary because
of class certification.
This Court recognizes that Plaintiffs filed this action
more than three years ago, and the litigation made substantial
progress prior to the consideration of this Motion.
weigh slightly against certification.
These facts
This Court, however, has
already found that Plaintiffs did not engage in undue delay in
seeking class certification.
The procedural history of this case
therefore does not preclude a finding of superiority.
Based upon this Court’s analysis of the relevant
factors, a class action is superior to other available methods to
fairly and efficiently adjudicate the claims of the Saguaro
Damages Class, the SHIP Damages Subclass, and the Saguaro
Protective Custody Damages Subclass.
23(b)(3).
See Fed. R. Civ. P.
This Court therefore FINDS that they meet the
68
superiority requirement.
D.
Summary
This Court GRANTS Plaintiffs’ Motion as to the Saguaro
Damages Class, the SHIP Damages Subclass, and the Saguaro
Protective Custody Damages Subclass.
The class and subclasses,
however, are limited to claims seeking nominal damages on the
grounds that CCA’s policies and procedures at Saguaro violate
RLUIPA and/or the United States Constitution.
In addition, the
SHIP Damages Subclass is limited to claims regarding individual
access to a spiritual advisor.
This Court DENIES all of Plaintiffs’ other requests to
certify a class or subclass as to damages.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Amended
Second Motion for Class Certification, filed July 1, 2014, is
HEREBY GRANTED IN PART AND DENIED IN PART.
This Court GRANTS
Plaintiffs’ Motion as follows:
1)
This Court CERTIFIES a class, seeking prospective
declaratory and injunctive relief, as to Plaintiffs’
remaining claims regarding daily, outdoor, group worship and
the remaining claims regarding access to sacred items (“the
Prospective Relief Class”).
The Prospective Relief Class is
defined as:
a) all persons who were convicted of violating
crimes under the laws of the State of Hawai`i and
69
were residents of the state of Hawai`i; b) who are
and/or will be confined to Saguaro Correctional
Center (“Saguaro”); c) in the general population;
and d) who have, according to Saguaro’s
established procedures, declared that the Native
Hawaiian religion is their faith.
The representatives of the Prospective Relief Class shall be
Plaintiffs Richard Kapela Davis, Tyrone K.N. Galdones,
Michael Hughes, and James Kane, III.
The class counsel shall be
Sharla Manley, Esq., David Keith Kopper, Esq., Moses Haia, Esq.,
Shawn Westrick, Esq., and James Kawahito, Esq.28
2)
This Court CERTIFIES a subclass, seeking prospective
declaratory and injunctive relief, with regard to: 1) the
same claims described supra as to the Prospective Relief
Class; and 2) the remaining state and federal claims
regarding lack of access to communal sacred items in
protective custody (“the Prospective Relief Subclass”).
The
Prospective Relief Subclass is defined as:
a) all persons who were convicted of violating
crimes under the laws of the State of Hawai`i and
were residents of the state of Hawai`i; b) who are
and/or will be confined to Saguaro; c) in
protective custody; and d) who have, according to
Saguaro’s established procedures, declared that
the Native Hawaiian religion is their faith.
The representative of the Prospective Relief Subclass shall be
Plaintiff Kane.
The class counsel shall be the counsel described
28
Mr. Kawahito’s appointment as class counsel is
conditioned upon his filing of a formal notice of appearance in
this case by no later than October 6, 2014.
70
supra.
3)
This Court CERTIFIES a class, seeking nominal damages and
other retrospective relief, as to Counts I through X, and
XXII through XXVI (“the Damages Class”).
The Damages Class
is defined as:
a) all persons who were convicted of violating
crimes under the laws of the State of Hawai`i and
were residents of the state of Hawai`i; b) who are
or were confined to Saguaro at any time within
four years prior to February 7, 2011 until the
resolution of this lawsuit; c) in the general
population; and d) who have, according to
Saguaro’s established procedures, declared that
the Native Hawaiian religion is their faith.
The representatives of the Damages Class shall be Plaintiffs
Davis, Galdones, Hughes, Kane, Damien Kaahu, Robert A. Holbron,
Ellington Keawe, and Kalai K. Poaha.
The class counsel shall be
the counsel described supra.
4)
This Court CERTIFIES a subclass, seeking nominal damages and
other retrospective relief, as to Counts I, II, III, V, VI,
VII, VIII, X, XXII, XXIII, XXIV, and XXVI (“the SHIP Damages
Subclass”).
The SHIP Damages Subclass is defined as:
a) all persons who were convicted of violating
crimes under the laws of the State of Hawai`i and
were residents of the state of Hawai`i; b) who are
or were confined to Saguaro at any time within
four years prior to February 7, 2011 until the
resolution of this lawsuit; c) in the Special
Housing Incentive Program (“SHIP”); and d) who
have, according to Saguaro’s established
procedures, declared that the Native Hawaiian
religion is their faith.
71
The representative of the SHIP Damages Subclass shall be
Plaintiff Holbron.
The class counsel shall be the counsel
described supra.
5)
This Court CERTIFIES a subclass, seeking nominal damages and
other retrospective relief, as to Counts I through X, and
XXII through XXVI (“the Protective Custody Damages
Subclass”).
The Protective Custody Damages Subclass is
defined as:
a) all persons who were convicted of violating
crimes under the laws of the State of Hawai`i and
were residents of the state of Hawai`i; b) who are
or were confined to Saguaro at any time within
four years prior to February 7, 2011 until the
resolution of this lawsuit; c) in protective
custody; and d) who have, according to Saguaro’s
established procedures, declared that the Native
Hawaiian religion is their faith.
The representatives of the Protective Custody Damages Subclass
shall be Plaintiffs Keawe and Kane.
The class counsel shall be
the counsel described supra.
Plaintiffs’ Motion is DENIED in all other respects.
All other remaining claims shall be prosecuted on behalf of the
named Plaintiffs only.
IT IS SO ORDERED.
//
//
//
//
72
DATED AT HONOLULU, HAWAII, September 30, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL.; ORDER
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AMENDED SECOND
MOTION FOR CLASS CERTIFICATION
73