Davis et al v. Abercrombie et al

Filing 677

ORDER DENYING PLAINTIFFS' SECOND MOTION FOR A PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST PLAINTIFFS AND CLASS MEMBERS AND INTIMIDATION OF WITNESSES re 657 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/24/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

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

CIVIL NO. 11-00144 LEK-BMK

ORDER DENYING PLAINTIFFS’ SECOND MOTION FOR
A PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST
PLAINTIFFS AND CLASS MEMBERS AND INTIMIDATION OF WITNESSES
On November 12, 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 Second
Motion for a Protective Order Prohibiting Retaliation Against
Plaintiffs and Class Members and Intimidation of Witnesses
(“Motion”).

[Dkt. no. 657.]

On November 26, 2014, Defendants

Ted Sakai, in his official capacity as the Director of the
Hawai`i Department of Public Safety (“DPS”), and Corrections

Corporation of America (collectively “Defendants”) filed their
redacted memorandum in opposition and, on December 2, 2014,
Defendants filed their unredacted memorandum in opposition under
seal.

[Dkt. nos. 664, 670.]

December 10, 2014.

Plaintiffs filed their reply on

[Dkt. no. 669.]

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”).
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Plaintiffs’
Motion is HEREBY DENIED for the reasons set forth below.
BACKGROUND
The factual and procedural background of this case is
well known to the parties and this Court.

It is not necessary to

repeat that background here, because it is sufficiently 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 Countermotion 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

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Summary Judgment Re: Sovereign Immunity/Damages (“7/31/14 Summary
Judgment Order”).

[Dkt. nos. 544, 596.1]

In the instant Motion, Plaintiffs seek a protective
order pursuant to Fed. R. Civ. P. 23(d), Fed. R. Civ. P. 26(c),
or the All Writs Act, 16 U.S.C. § 1651.2

[Motion at 2-3.]

Specifically, Plaintiffs ask this Court to impose the following:
1.

Defendants, their officers, agents, and all
those acting in concert with them are ordered
to refrain from talking with Plaintiffs and
class members about this lawsuit;

2.

Defendants, their officers, agents, and all
those acting in concert with them are
prohibited from taking any action in
retaliation, or threatening to take any
action in retaliation, against Plaintiffs and
members of plaintiffs’ class, including but
not limited to disciplinary action, the
denial of privileges, or retaliatory
searches, on account of [P]laintiffs and
members of their class participating,
assisting, or volunteering any facts or
circumstances in the furtherance of this
lawsuit;

1

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.
2

The Court notes that Plaintiffs filed their original
Motion for a Protective Order Prohibiting Retaliation Against
Plaintiffs and Intimidation of Witnesses (“Original Motion”) on
March 11, 2013. [Dkt. no. 247.] The magistrate judge denied the
Original Motion without prejudice. [Minutes, filed 4/18/13 (dkt.
no. 290).] This Court does not construe the instant Motion as a
motion for reconsideration of the magistrate judge’s ruling on
the Original Motion. Although the instant Motion relies on some
of the same alleged incidents as the Original Motion, the instant
Motion asks this Court to consider those incidents in the context
of this case as a whole, including alleged incidents that
occurred after the ruling on the Original Motion.
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3.

Defendants, their officers, agents, and all
those acting in concert with them are
prohibited from taking any action in
retaliation against Plaintiffs and members of
plaintiffs’ class, or threatening to take any
action in retaliation, against Plaintiffs and
members of plaintiffs’ class, including but
not limited to disciplinary action, the
denial of privileges, or retaliatory
searches, on account of filing a grievance
concerning a request to engage in religious
observances at the Saguaro facility.

[Id. at 3-4.]
DISCUSSION
I.

Rule 26(c) and the All Writs Act
Rule 26(c)(1) states, in pertinent part:
A party or any person from whom discovery is
sought may move for a protective order in the
court where the action is pending - or as an
alternative on matters relating to a deposition,
in the court for the district where the deposition
will be taken. The motion must include a
certification that the movant has in good faith
conferred or attempted to confer with other
affected parties in an effort to resolve the
dispute without court action. The court may, for
good cause, issue an order to protect a party or
person from annoyance, embarrassment, oppression,
or undue burden or expense . . . .

(Emphasis added.)

Based on Plaintiffs’ representations in the

instant Motion, they are not seeking relief in response to, or in
anticipation of, a request for discovery.

Instead, the Motion

addresses on-going conditions at Saguaro Correctional Center
(“Saguaro”) related to participation in this class action
litigation.

See, e.g., Mem. in Supp. of Motion at 2 (“there is

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both a history and high likelihood of unsupervised, unilateral
communications with the plaintiff class”); id. (“Defendants
continue to retaliate against inmates for participating in or
supporting this lawsuit.”).

This Court therefore concludes that

Rule 26(c) does not apply to Plaintiffs’ request for a protective
order.
Section 1651 states:
(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary
or appropriate in aid of their respective
jurisdictions and agreeable to the usages and
principles of law.
(b) An alternative writ or rule nisi may be issued
by a justice or judge of a court which has
jurisdiction.
The United States Supreme Court has stated:
The All Writs Act is a residual source of
authority to issue writs that are not otherwise
covered by statute. Where a statute specifically
addresses the particular issue at hand, it is that
authority, and not the All Writs Act, that is
controlling. Although that Act empowers federal
courts to fashion extraordinary remedies when the
need arises, it does not authorize them to issue
ad hoc writs whenever compliance with statutory
procedures appears inconvenient or less
appropriate. . . .
Pa. Bureau of Corr. v. U.S. Marshals Serv., 474 U.S. 34, 42-43
(1985).

This Court concludes that the All Writs Act does not

apply because Plaintiffs seek a writ that is covered by
Rule 23(d).

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II.

Rule 23(d)
Rule 23(d)(1) states, in pertinent part:
In conducting an action under this rule, the court
may issue orders that:
. . . .
(C) impose conditions on the representative
parties or on intervenors; [or]
. . . .
(E) deal with similar procedural matters.
Plaintiffs argue that a protective order is necessary

in this case because of: instances of harassment and
intimidation; retaliation and threats of retaliation; two
incidents in April 2014 in which Plaintiffs’ counsel could not
reach Plaintiff Kane for a legal call that counsel had scheduled
through DPS; and incidents of taunting certain Plaintiffs about
their Native Hawaiian religion.
“Because of the potential for abuse
[presented by class actions], a district court has
both the duty and the broad authority to exercise
control over a class action and to enter
appropriate orders governing the conduct of
counsel and parties.” Gulf Oil Co. v. Bernard,
452 U.S. 89, 100 (1981). In particular, a
district court has the power to “limit[]
communications between parties and potential class
members.” Id. at 101. Gulf Oil noted the
“obvious potential for confusion” and adverse
effect on the “administration of justice” that
misleading communications may cause. Id. at 100
n.12 (quoting Waldo v. Lakeshore Estates, Inc.,
433 F. Supp. 782 (E.D. La. 1977)). The
prophylactic power accorded to the court presiding
over a putative class action under Rule 23(d) is
broad; the purpose of Rule 23(d)’s conferral of
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authority is not only to protect class members in
particular but to safeguard generally the
administering of justice and the integrity of the
class certification process.
A district court’s duty and authority under
Rule 23(d) to protect the integrity of the
class and the administration of justice
generally is not limited only to those
communications that mislead or otherwise
threaten to create confusion and to influence
the threshold decision whether to remain in
the class. Certainly communications that
seek or threaten to influence the choice of
remedies are . . . within a district court’s
discretion to regulate.
In re Sch. Asbestos Litig., 842 F.2d 671, 683 (3d
Cir. 1988). In Wang v. Chinese Daily News, Inc.,
623 F.3d 743, 756 (9th Cir. 2010),[3] judgment
vacated on other grounds, 132 S. Ct. 74 (2011),
the Ninth Circuit similarly noted, “Rule 23(d)
gives district courts the power to regulate the
notice and opt-out processes and to impose
limitations when a party engages in behavior that
threatens the fairness of the litigation.” Cf.
Soskel v. Texaco, Inc., 94 F.R.D. 201, 203
(S.D.N.Y. 1982) (the court exercised its power to
disapprove a settlement with the named plaintiffs
in order to protect the other putative class
members).
O’Connor v. Uber Techs. Inc., No. C-13-3826 EMC, 2014 WL 1760314,
at *3 (N.D. Cal. May 2, 2014) (alterations in O’Connor).

In

Wang, the Ninth Circuit stated that, “upon making ‘a clear record
and specific findings,’ a district court could control
communications because ‘[m]isleading communications to class

3

In Wang, 132 S. Ct. 74 (2011), the United States Supreme
Court vacated the Ninth Circuit’s opinion on other grounds and
remanded the case for further consideration in light of Wal–Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).
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members concerning the litigation pose a serious threat to the
fairness of the litigation process, the adequacy of
representation and the administration of justice generally.’”
623 F.3d at 756 (quoting In re School Asbestos Litigation, 842
F.2d 671, 680 (3d Cir. 1988)).
Because the issuance of a Rule 23(d) protective order
addressing coercive behavior by a defendant in a class action
requires a clear record and specific findings, this Court cannot
grant the relief that Plaintiffs seek.

The record regarding the

alleged incidents that prompted the instant Motion is not clear,
and there is no indication of whether Plaintiffs and the class
members who were involved in these incidents exhausted their
administrative remedies.

For example, to make specific findings

that Plaintiff Kane’s sixty-day placement in segregation for
loosening the screws on his light fixture was in retaliation for
“successfully resist[ing] the prison’s efforts to throw his civil
rights case out of court,” [Mem. in Supp. of Motion at 13,] this
Court would likely have to weigh the conflicting evidence, make
credibility findings, and determine whether the discipline was
warranted.

Ordering relief addressing such incidents would allow

Plaintiffs and the Class members4 to circumvent Saguaro’s

4

The classes and subclasses certified in this case are
defined in this Court’s September 30, 2014 Order Granting in Part
and Denying in Part Plaintiffs’ Amended Second Motion for Class
Certification. Dkt. no. 644, also available at 2014 WL 4956454.
(continued...)
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internal grievance procedures.

Further, to the extent that

Plaintiffs allege that they and other Class members have been
harassed, intimated, and retaliated against on the basis of their
religious beliefs and practices or for their participation in
this litigation, Plaintiffs are alleging new constitutional
and/or statutory violations that are not encompassed within the
claims in the current complaint.5

See Second Amended Complaint

for Damages and for Classwide Declaratory and Injunctive Relief
(“Second Amended Complaint”), filed 8/22/12 (dkt. no. 145).
This Court concludes that it cannot issue a Rule 23(d)
protective order to address incidents that Plaintiffs and the
Class members must raise as new claims in a separate action,
after they have exhausted their administrative remedies.
The only other bases for the requested protective order
are Plaintiffs’ arguments that: a protective order is necessary

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(...continued)
In the instant Order, the term “Class” refers collectively to all
of the certified classes and subclasses.
5

Plaintiffs allege that Saguaro’s failure to secure
Plaintiff Kane’s presence for a scheduled legal call in
April 2014 and for the rescheduled call later that month was
“part of a pattern and practice that Defendants have been
engaging in since this court gave Plaintiffs’ leave to add class
action allegations to the complaint.” [Mem. in Supp. of Motion
at 5.] If Plaintiffs’ counsel continue to be unable to reach
their clients, even when complying with DPS procedures, it
arguably may affect their ability to prepare for trial. If this
problem persists, Plaintiffs’ counsel may request a discovery
conference with the magistrate judge and, if necessary, file a
motion for sanctions.
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to ensure the fair and orderly litigation of this action; and a
protective order is appropriate in light of the relationship
between Plaintiffs and the Class members and Defendants.

The

Court is not persuaded that either argument warrants the broad
protective order that Plaintiffs request.

If this Court issued

the requested protective order, Plaintiffs and the Class members
could conceivably argue that any action by Saguaro staff violated
the protective order because it was retaliatory, an attempt to
discourage participation in this litigation, or an attempt to
discourage the practice of the Native Hawaiian religion.
Plaintiffs cannot use this lawsuit to obtain preferential
treatment at Saguaro or to insulate themselves from the facility
requirements that apply to all inmates.

This Court therefore

concludes that Plaintiffs have not established that a Rule 23(d)
protective order is necessary in this case.
CONCLUSION
On the basis of the foregoing, Plaintiffs’ Second
Motion for a Protective Order Prohibiting Retaliation Against
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Plaintiffs and Class Members and Intimidation of Witnesses, filed
November 12, 2014, is HEREBY DENIED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 24, 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 DENYING PLAINTIFFS’ SECOND MOTION FOR A
PROTECTIVE ORDER PROHIBITING RETALIATION AGAINST PLAINTIFFS AND
CLASS MEMBERS AND INTIMIDATION OF WITNESSES

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