Davis et al v. Abercrombie et al

Filing 659

ORDER REGARDING THE PARTIES' PROPOSALS FOR THE NOTICE OF PENDENCY OF CLASS ACTION. Signed by JUDGE LESLIE E. KOBAYASHI on 11/14/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electr onic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
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Plaintiffs,
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vs.
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NEIL ABERCROMBIE, in his
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official capacity as the
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Governor of the State of
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Hawaii; TED SAKAI, in his
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official capacity as the
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Director of the Hawaii
Department of Public Safety; )
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CORRECTIONS CORPORATIONS OF
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AMERICA,
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Defendants.
_____________________________ )
RICHARD KAPELA DAVIS, MICHAEL
HUGHES, DAMIEN KAAHU, ROBERT
A. HOLBRON, JAMES KANE, III,
ELLINGTON KEAWE, KALAI POAHA,
TYRONE KAWAELANILUA`OLE
NA`OKI GALDONES,

CIVIL NO. 11-00144 LEK-BMK

ORDER REGARDING THE PARTIES’ PROPOSALS FOR
THE NOTICE OF PENDENCY OF CLASS ACTION
At an October 20, 2014 status conference, the Court
instructed the parties to meet and confer regarding a proposed
class notice and the distribution of the notice.

The parties

were unable to reach an agreement and, on November 3, 2014,
Plaintiffs and Defendants submitted their respective letters with
their proposals for the Notice of Pendency of Class Action
(“Plaintiffs’ 11/3/14 Letter,” “Defendants’ 11/3/14 Letter,” and
“the proposed Notices”).

[Dkt. nos. 655, 656.]

Defendants also

submitted a supplemental letter on November 12, 2014

(“Defendants’ 11/12/14 Letter”).

[Dkt. no. 658.]

The Court notes that the parties agree on the manner of
distribution at Saguaro Correctional Center (“Saguaro”), and
Defendants have agreed to provide Plaintiffs’ counsel with a list
of all inmates at Saguaro who are currently registered as
practitioners of the Native Hawaiian religion.

They also agree

that: Plaintiffs’ counsel will use the Hawai`i vine link website
to search for addresses for inmates who were registered Native
Hawaiian practitioners at Saguaro, but who are no longer
incarcerated (“Released Practitioners”); and Defendants will
provide Plaintiffs’ counsel with the last known addresses of the
Released Practitioners whom Plaintiffs’ counsel cannot locate on
the website.
The instant Order rules on some of the issues that
remain in dispute.
I.

Posting in Hawai`i Facilities
Plaintiffs ask this Court to order Defendant Ted Sakai,

in his official capacity as the Director of the Hawai`i
Department of Public Safety, to post the Notice at Halawa
Correctional Facility, Laumaka Work Furlough Center, and Waiawa
Correctional Facility (collectively “the Hawai`i Facilities”).
The Court finds that posting the Notice at the Hawai`i Facilities
is unnecessary, overbroad, and unduly burdensome.

It is

unnecessary because Plaintiffs’ counsel can identify, through

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existing discovery, the inmates who were registered practitioners
of the Native Hawaiian religion at Saguaro but who have been
transferred to, and are currently incarcerated at, one of the
Hawai`i Facilities.

Plaintiffs’ counsel can send the Notice

directly to those persons.

Posting the Notice in the Hawai`i

Facilities is overbroad because the practices and procedures
regarding religious exercise at the Hawai`i Facilities are not at
issue in this case.

Further, it is likely to cause confusion,

which will likely result in unduly burdensome inquiries from
inmates who are not a part of any of the certified Classes or
Subclasses.

Plaintiffs’ request to have the Notice posted at the

Hawai`i Facilities is therefore DENIED.
II.

Released Practitioners With No Last Known Address
Plaintiffs request that Defendants provide Plaintiffs’

counsel with the social security numbers of the Released
Practitioners who do not have a last known address.

Plaintiffs

have not cited any authority supporting this general request for
social security numbers.

Further, Plaintiffs have not specified

whether they have examined Defendants’ discovery productions to
determine: how many Released Practitioners there are; their
names; and what other information is available for them.
Plaintiffs’ request for the social security numbers of the
Released Practitioners without a last known address is therefore
DENIED.

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This Court ORDERS the parties to meet and confer to:
confirm the identification of the Released Practitioners without
a last known address; and discuss other methods to locate them
without the use of social security numbers.
III. Information Gap
Plaintiffs assert that “there is an information gap
that exists concerning inmates who were registered as Native
Hawaiian practitioners at Saguaro prior to November 2010.”
[Pltfs.’ 11/3/14 Letter at 3.]

The alleged information gap

affects the Damages Class and the two Damages Subclasses, which
this Court certified pursuant to Fed. R. Civ. P. 23(b)(3).

See

Order Granting in Part and Denying in Part Plaintiffs’ Amended
Second Motion for Class Certification, filed 9/30/14 (dkt. no.
644) (“9/30/14 Certification Order”), at 65-69.1
Rule 23(c)(2)(B) states, in pertinent part: “For any
class certified under Rule 23(b)(3), the court must direct to
class members the best notice that is practicable under the
circumstances, including individual notice to all members who can
be identified through reasonable effort.”
ample time to conduct class discovery.

Plaintiffs have had

Defendants’ 11/3/14

Letter describes the documents and information that they have
provided to Plaintiffs regarding the registered practitioners of

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The 9/30/14 Certification Order is also available at 2014
WL 4956454.
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the Native Hawaiian religion at Saguaro from 2007 to the present.
[Defs.’ 11/3/14 Letter at 2-3.]

In addition, although they deny

that there is an information gap, Defendants state that they will
provide Plaintiffs with change of religion forms from Saguaro’s
opening in June 2007 through November 2010.
Letter at 1.]

[Defs.’ 11/12/14

This Court ORDERS Defendants to produce those

documents to Plaintiffs’ counsel by November 24, 2014.
This Court FINDS that, after the production of the
change of religion forms from June 2007 to November 2010,
Plaintiffs’ counsel will have sufficient information to make a
reasonable effort to identify all of the members of the Damages
Class and Subclasses.

If Defendants fail to produce the change

of religion forms by November 24, 2014, Plaintiffs may file a
motion seeking sanctions for the violation of the instant Order.
To the extent that Plaintiffs’ 11/3/14 Letter requests
additional information regarding practitioners of the Native
Hawaiian religion at Saguaro from June 2007 through November
2010, Plaintiffs’ request is DENIED.
IV.

Content of the Notice
The parties were not able to agree upon the proposed

content of the Notice.

This Court resolved Defendants’ arguments

regarding what claims remain at issue in this case in its Order
Regarding Remaining Claims, filed November 10, 2014 (“11/10/14
Claims Order”).

[Dkt. no. 654.]

This Court ORDERS the parties
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to meet and confer regarding the revision of the proposed Notice
in light of the 11/10/14 Claims Order and the instant Order.
To provide guidance to the parties regarding the
content of the Notice, this Court emphasizes that simpler is
better.

This Court also agrees with Defendants that the Notice

must not suggest that the Damages Class and Subclass may recover
more than nominal damages.

This Court does not believe that the

language Defendants cited from Plaintiffs’ proposed Notice
necessarily implies that more than nominal damages is available.
See Defs.’ 11/3/14 Letter at 4 (quoting section 7 of Plaintiffs’
proposed Notice (“If you request exclusion, you will no longer be
a class member and you will not receive money from any settlement
or judgment.”)).]

This Court, however, finds that the following

language is preferable: “If you request exclusion, you will no
longer be a class member and you will not receive any settlement
or judgment.”
V.

Meet-and-Confer
This Court has ordered the parties to meet and confer

regarding: 1) the identification of the Released Practitioners
who have no last known address; 2) proposed methods to contact
those former inmates; and 3) a revised version of the proposed
Notice.

If the parties are able to reach an agreement regarding

these issues, they shall submit a joint letter brief describing
their agreement, accompanied by their joint proposed Notice.

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If

the parties are unable to reach an agreement, each side shall
submit its own letter brief, with its proposed Notice.

This

Court will choose which proposed Notice shall be distributed.
The parties’ letter(s) are due by November 24, 2014.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 14, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

RICHARD KAPELA DAVIS, ET AL. VS. NEIL ABERCROMBIE, ET AL.; CIVIL
11-00144 LEK-BMK; ORDER REGARDING THE PARTIES’ PROPOSALS FOR THE
NOTICE OF PENDENCY OF CLASS ACTION

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