Spears v. State of Hawaii et al

Filing 111

ORDER Granting Defendant Tani Dydasco's Motion For Summary Judgment; Order To Show Cause Why Action With Respect To Thomas L. Read Should Not be Dismissed. "The court grants Defendant Tani Dydascos 29 motion for summary judgment. The o nly claims left in this case are those asserted against Read, who has not been served with the Complaint and summons in this case. As required above, no later than November 17, 2017, Spears must demonstrate good cause for his failure to timely ser ve Read. Absent such a demonstration, the Complaint will be dismissed with respect to Read, and judgment shall be entered against Spears and in favor of Defendants." Signed by JUDGE SUSAN OKI MOLLWAY on 11/8/17. (cib, )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
EVERETT SPEARS,

)
)
Plaintiff,
)
)
vs.
)
)
THE STATE OF HAWAII, HAWAII
)
DEPARTMENT OF PUBLIC SAFETY; )
TANI DYDASCO; THOMAS L. READ, )
)
Defendants.
)
_____________________________ )

Civ. No. 12-00218 SOM/RLP
ORDER GRANTING DEFENDANT TANI
DYDASCO’S MOTION FOR SUMMARY
JUDGMENT; ORDER TO SHOW CAUSE
WHY ACTION WITH RESPECT TO
THOMAS L. READ SHOULD NOT BE
DISMISSED

ORDER GRANTING DEFENDANT TANI DYDASCO’S MOTION
FOR SUMMARY JUDGMENT; ORDER TO SHOW CAUSE WHY ACTION
WITH RESPECT TO THOMAS L. READ SHOULD NOT BE DISMISSED
I.

INTRODUCTION.
Plaintiff Everett Spears asserts that he was held in

prison 73 days longer than he should have been.

On April 24,

2012, Spears filed the Complaint in this matter, asserting claims
under 42 U.S.C. § 1983 and under state law against the State of
Hawaii Department of Public Safety and its employees, Tani
Dydasco and Thomas L. Read.1

See ECF No. 1.

See ECF No. 1.

On

May 31, 2012, this court dismissed all of Spears’s claims except
for the damage claims asserted against Dydasco and Read in their
individual capacities.

1

See ECF No. 13.

The Motion for Summary Judgment indicates that the
Complaint misspelled Read’s name as “Reed.” ECF No. 29-3, PageID
# 104.

Dydasco moves for summary judgment with respect to the
remaining claims asserted against her.

ECF No. 29.

The court

grants the motion.
The court also orders Spears to show cause why claims
against Read should not be dismissed pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure.
II.

SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment shall be granted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).

The movants must support their position

concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify

2

and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant
3

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”

Id.
4

III.

BACKGROUND.
Spears claims to have been held in prison for 73 days

more than he should have been.

But his claims against Dydasco

are misplaced.
This court incorporates here the factual history
underlying Spears’s overdetention claims set forth by the State
of Hawaii’s Intermediate Court of Appeals (“ICA”):
On April 29, 2000, Spears was arrested
for burglary in the first degree and
violation of order of protection. On May 15,
2000, Plaintiff–Appellee State of Hawai`i
(State) charged Spears in Cr. No. 00–1–0206
(Case 1) with five counts. On July 3, 2000,
while in custody for Case 1, Spears was
indicted on two counts in Cr. No. 00–1–0333
(Case 2), which was unrelated to Case 1.
On November 14, 2000, Spears pleaded no
contest to four charges: in Case 1-–the
reduced charge of criminal trespass in the
first degree in violation of Hawaii Revised
Statutes (HRS) § 708–813 (Supp. 2011),
criminal property damage in the fourth degree
in violation of HRS § 708–823 (1993), and
harassment in violation of HRS § 711–1106
(Supp. 2008) and, in Case 2–assault in the
second degree in violation of HRS § 707–710
(1993).
. . . For Case 1, the Circuit Court
sentenced Spears as follows: one-year jail
sentence for Count One, thirty-day jail
sentence for Count Two, and thirty-day jail
sentence for Count Five. For Count One of
Case 2, the Circuit Court sentenced Spears to
five years probation and one-year jail
sentence. The Circuit Court ordered that
Spears would receive credit for time served
and that all sentences would run
concurrently.

5

State v. Spears, 2013 WL 257128, *1 (Haw. Ct. App. 2013); see
also Judgment Guilty Conviction and Probation Sentence in Cases 1
and 2, Jan. 11, 2001, ECF No. 31-8.
On April 27, 2001, in response to the motion for
clarification of Spears’s sentence, Judge Joseph E. Cardoza of
the state trial court filed a Stipulated Order re: Jail
Confinement in both Case 1 and Case 2.

In relevant part, it

stated, “the Parties and the Court having reviewed the file
herein, hereby agree and stipulate that the Defendant shall
receive credit for time served since he was taken into custody on
April 29, 2000 at 2330 hours, and he shall be released from
custody on April 29, 2001, at 2330.”
# 239.

ECF No. 31-16, PageID

It further stated, “You are committed to the custody of

the Director of the Department of Public Safety for a period of
ONE (1) year of jail confinement in [Case 2] Count 1, credit for
time served nunc pro tunc to April 29, 2000 at 2330 hours.”

Id.

Spears was released from custody on April 29, 2001.
Spears, 2013 WL 257128 at *2.
On May 8, 2001, Judge Cardoza filed an Amended
Stipulated Order re: Jail Confinement.

In addition to stating

that Spears was to receive credit for time served since he was
taken into custody on April 29, 2001, it modified the original
stipulated order by stating:
You are committed to the custody of the
Director of the Department of Public Safety
6

for a period of ONE (1) year of jail
confinement in [Case 2] Count 1 [credit for
time served nunc pro tunc to April 29, 2000
at 2330 hours], and for a period of ONE (1)
year of jail confinement in [Case 1] Count 1;
30 days in Counts 2 and 5; all terms to run
concurrently with each count and each
criminal number. Mittimus to issue forthwith
with credit for time served.
ECF No. 31-3, PageID # 202.
At the time the state trial judge filed the stipulated
orders with respect to Spears’s presentence credits, the Hawaii
Supreme Court had already decided State v. March, 94 Haw. 250, 11
P.3d 1094 (2000).

Noting that “[p]resentence incarceration

credit is governed by statute, see HRS § 706–671 (1993),” March
held, “a sentence that credits Defendant with the time served for
an unrelated offense is illegal because the sentencing court is
not authorized by chapter 706 to grant such a credit.”
253, 255, 11 P.3d at 1097, 1099.
and Case 2 were unrelated.

Id. at

There is no dispute that Case 1

Thus, the stipulated orders running

presentence credits concurrently did not comport with March and
gave Spears 73 days of credit in Case 2 that March did not
countenance.
On February 18, 2003, the State of Hawaii filed a
motion seeking an arrest warrant based on Spears’s alleged
violations of conditions of probation with respect to Case 2.
Spears, 2013 WL 257128 at *2.

The arrest warrant was not served

until May 16, 2006, which was more than three years later.

7

Id.

Spears admitted to having violated the terms and conditions of
probation.

Probation was revoked, and Spears was resentenced in

Case 2 to 5 years of imprisonment, with credit for time served.
Id.; see also Order of Resentencing Revocation of Probation in
Case 2, July 13, 2006, ECF No. 31-9.
On or about July 3, 2008, Spears wrote to Scott Jibo,
the Hawaii Department of Public Safety Contract Monitor, claiming
that Spears’s calculated release date of July 24, 2010, was
incorrect.

Spears said that he should have received more credit

for time served and that his release date should be May 16, 2010.
See ECF No. 31-10, PageID # 223.
miscalculated.

Spears may have himself

If Spears was relying on the earlier stipulated

orders and seeking 73 days of credit, his release date would have
been May 12, 2010.
On or about September 5, 2008, Jeanette Baltero,
another Contract Monitor for the Hawaii Department of Public
Safety, responded to Spears’s letter of July 3, 2008.

Baltero

stated that Spears had received a total of 352 days of credit
such that his maximum release date was July 24, 2010.
No. 31-11, PageID # 224.

See ECF

The Record of Presentence Credits

attached to that letter indicates that Spears was given 292 days
credit for the period from July 12, 2000, to April 29, 2001,
which is 73 days less than 365 days.

8

Id., PageID # 225.

On or about November 28, 2008, Raynette Ruiz again
calculated Spears’s maximum release date as July 24, 2010.

ECF

No. 30-8, PageID # 157; Sentence Calculation Form, ECF No. 31-12,
PageID # 226.
Apparently, Spears asked the Department of Public
Safety to review the calculation of the release date of July 24,
2010.

See Defendant Tani Dydasco’s Answers to Request for

Answers to Interrogatories Nos. 11 and 13, ECF No. 108-4, PageID
#s 766-67.

Dydasco says that, in December 2009, after the

Department of Public Safety received Spears’s request, she
audited Spears’s file, verifying that his release date should
have been July 24, 2010.

Dydasco wrote her name and initials on

Ruiz’s Sentencing Calculation Form.

See id.; Declaration of Tani

Dydasco ¶ 9, ECF No. 30-8, PageID # 157; Sentence Calculation
Form, ECF No. 31-12, PageID # 226.

Nothing in the record

indicates that Dydasco had calculated Spears’s release date
before December 2009.

The Department of Public Safety therefore

had been telling Spears that his release date would be July 24,
2010, for well over a year before Dydasco confirmed that release
date.
On January 25, 2010, the state trial court received a
letter from Spears that asked the court to clarify his
presentence credit for Case 2.

Spears, 2013 WL 257128 at *2;

January 11, 2010, letter from Everett Spears to Judge S.

9

Raffetto, available as pages 293-94 of 792 of Record on Appeal
(“ROA”) (filed Oct. 10, 2010) through
https://jimspss1.courts.state.hi.us/JEFS/ (click on “View
Documents and then input 30690 under “Case Search”) (last visited
November 3, 2017).2

On January 26, 2010, the state trial court

provided notice to the State of Hawaii of the court’s receipt of
the letter; the state court otherwise took no action with respect
to the letter.

See Notice of Ex Parte Communication, ROA page

677 of 792.
On February 5, 2010, Spears wrote to the Office of the
Clerk, Second Judicial Circuit, asking the clerk to correct the
presentence information provided to the Department of Public
Safety, including the credit at issue in this case.

February 5,

2010, letter from Everett Spears to Office of the Clerk, ROA page
685 of 792.
On March 1, 2010, Spears filed a Motion to Withdraw
Guilty Plea in both Case 1 and Case 2, arguing that the State of
Hawaii had not honored his plea agreement.
257128 at *2.

Spears, 2013 WL

Spears argued that he was being deprived of 73

2

The court takes judicial notice of the related documents
and transcripts on appeal filed with the ICA, as this court may
take judicial notice of matters of public record such as
documents filed with courts “both within and without the federal
judicial system, if those proceedings have a direct relation to
the matters at issue.” United States ex rel. Robinson Rancheria
Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
1992).
10

days of pretrial credit in Case 2.

Motion to Withdraw Guilty

Plea, ROA pages 682 of 792.
In early 2010, Spears also wrote to the Department of
Public Safety, arguing that his release date should be in May
2010.
letter.

On March 4, 2010, Dydasco and Read responded to that
The response rejected Spears’s claim for the additional

73 days of credit.

See ECF No. 31-15, PageID # 234.

The letter

to Spears noted that, under section 706-671 of Hawaii Revised
Statutes and case law interpreting it, a defendant had no right
to credit for time spent in prison between arrest and sentencing
as a consequence of a different charge or conviction.
letter stated:
Your presentence credit for [Case 2] at the
time of your 11/1/01 sentencing was computed
as 185 days. When you were released on
4/29/01, you had not served the full 1 year
sentence that was imposed for the charge in
that case. Your expected end date for that
case was 7/9/01. On 4/27/01, a Stipulated
Order re Jail Confinement was filed, in which
the Judge granted credit for [Case 2] . . .
nunc pro tunc to 4/29/00. . . . Now that you
have been re-sentenced to an open term in
[Case 2], it is the Department of Public
Safety’s (PSD) responsibility to compute your
pre-sentence credit. PSD is bound to follow
HRS§706–671, which requires PSD to compute
all detention that follows the arrest for the
charge for which the defendant is sentenced.
In review of our records, we have determined
that you had not served the full 1 year in
2001 for [Case 2]. . . . Pre-sentence credit
is statutory and cannot be nunc pro tunc. We
have drafted a letter to the Judge,
requesting guidance in regards to the
stipulated order that was filed on 4/27/01.
11

Id.

The

Until we receive documentation, or an order
to the contrary, your total pre-sentence
credit for [Case 2] will remain at 352 days,
with a maximum expiration date of 7/24/2010.
Id., PageID # 234-35.
On March 4, 2010, Read sent Judge Cardoza a separate
letter regarding the Stipulated Order re: Jail Confinement that
had been filed on April 27, 2001.3

The letter noted that, for

Case 2, the Department of Public Safety could only document 292
days of credit, not the 365 days that Spears was claiming, a
difference of 73 days:
The stipulated order was interpreted to grant
him credit that he received for another
charge. The Department of Public Safety
(PSD) is bound to follow H.R.S. §706-671,
which requires PSD to compute all detention
that follows the arrest for the charge for
which the defendant is sentenced. Presentence credit is awarded pursuant to
statutory authority, PSD policy, and Hawaii
case law, and cannot be awarded for time
served for another case, or for time not in
custody. Based on the foregoing, PSD is not
inclined to grant the defendant credit [for
the 73 days] on this 2006 re-sentencing. To
do so would be directly violative of statute,

3

In a June 16, 2017, filing with the court, ECF No. 91-7,
Spears attached the signature page from the letter to him, ECF
No. 31-15 (signed by Dydasco and Read), to the letter addressed
to Judge Cardoza, ECF No. 31-16 (signed by Read). At the hearing
on the motion, Spears agreed that only Read had signed the March
4, 2010, letter to Judge Cardoza. Thus, Spears’s argument that
Dydasco “wrote an ex parte letter to the Sentencing Judge in
March 2010 [indicating] that the prior 2001 sentencing Orders . .
. would not be followed because she deemed them contrary to
[Department of Public Safety] regulations,” ECF No. 34, PageID #
319, is unsupported by the record.
12

policy and case law, specifically State of
Hawaii v. Yamasaki, 94 Haw. 250, (2000).
. . . .
[A]bsent any guidance or
contrary, PSD staff will
policy and state statute
presentence credits that
.

an order to the
follow both its own
by applying the
are applicable . . .

ECF No. 31-16, PageID #s 236-37.
On April 20, 2010, the state trial court held a hearing
on Spears’s motion to withdraw guilty plea.

According to the

ICA, the state trial judge denied the motion without prejudice at
that hearing, stating that the motion was untimely but noting
that the motion could be filed under Rule 40 of the Hawaii Rules
of Penal Procedure.

Spears, 2013 WL 257128 at *3.

Rule 40 of

the Hawaii Rules of Penal Procedure governs petitions for postconviction relief.

The docket sheets in both Case 1 and Case 2,

contrary to the ICA’s description, suggest that the denial
initially announced on April 20, 2010, did not take effect and
that instead, later proceedings on the motion to withdraw guilty
plea occurred.

See Docket Sheets, available through eCourt KôKua

on the Hawaii State Judiciary website, www.courts.state.hi.us
(input CaseID 2PC001000206 and 2PC001000333 under “Case Search”
after entering eCourt KôKua) (last visited October 19, 2017).

13

On Page 8 of the transcript of the April 20, 2010,
hearing, which was filed in the ICA on March 10, 2011,4 Judge
Joseph E. Cardoza did indeed say, “So I am going to deny your
motion to withdraw your plea without prejudice to your ability to
file a Rule 40 petition.”

After further argument, Judge Cardoza

noted that State v. March, a decision by the Hawaii Supreme
Court, prohibited the awarding of credit for time defendants were
not in custody.

Id. at 25.

The judge then stated that he would

have to look at the stipulations to see whether they were
affected by March.

Id.

Judge Cardoza explained to Spears, “I’m

saying you can’t get credit because you weren’t in custody.
That’s what I’m saying.”

Id. at 26.

the hearing to later in the day.

The court then continued

But when the case was recalled,

the court was unable to get Spears back on the telephone and
therefore recessed until the court could coordinate with his
prison facility.

Id. at 27-28.

On May 6, 2010, Judge Cardoza held a further hearing on
the motion to withdraw guilty plea, suggesting that he may not
have thought proceedings on that motion had concluded on April
20, 2010.

See Transcript of Proceedings on Appeal (May 6, 2010)

at 3 (filed in the ICA on March 10, 2011) (calling the case for

4

All documents filed in the ICA concerning Spears’s appeal
are available through https://jimspss1.courts.state.hi.us/JEFS/
(click on “View Documents and then input 30690 under “Case
Search”).
14

further hearing on the motion to withdraw guilty plea).

Judge

Cardoza stated at the hearing on May 6, 2010:
The Court recognizes that it was--there was a
period of time in the State of Hawaii when
defendants would enter into stipulated orders
allowing for credit for time served nunc pro
tunc even if the defendant was not actually
in custody in the case. And this is one of
those situations.
However, the Department of Public Safety in
light of the way that the law has developed
and the law--the way the law has developed is
that you actually have to be in custody in
order to get credit for that time.
And nunc pro tunc orders that credit time
that was not actually served will not be
recognized by the Department of Public
Safety. So, therein, lies the problem for
Mr. Spears. Because the Department of Public
Safety is not going to recognize credit for
time served that doesn’t reflect time served
consistent with case law as has developed in
the State of Hawaii.
Id. at 8-9.

The judge then stated that the proper way to attack

the issue was for Spears to file a Rule 40 motion as opposed to a
motion to withdraw plea.
counsel.

Id. at 10.

Spears then asked for

Judge Cardoza agreed to appoint counsel for Spears and

continued the matter.

Id. at 12, 16.

At the hearing on May 6, 2010, Spears told Judge
Cardoza that he was supposed to be released about a week later,
on May 12, 2010.

Id.

Judge Cardoza responded by telling Spears

that he was giving Spears time to get counsel and that, given the
court’s schedule, the earliest date that was open that would

15

allow counsel’s input with respect to the motion to withdraw
guilty plea was June 8, 2010.

Id. at 13.

It was with the

knowledge that appointing counsel for Spears would mean he would
not be released until well after May 12, 2010, that Judge Cardoza
delayed further argument about whether the Department of Public
Safety was required to give effect to the court’s previous order
giving Spears 73 more days of credit than the Department of
Public Safety had calculated in light of March.
On May 10, 2010, the court appointed Matthew Nardi as
Spears’s counsel.

See Docket Sheet in Case 1.

On May 24, 2010, Spears appealed what he thought was
the oral denial of his motion to withdraw guilty plea on April
20, 2010.

Spears, 2013 WL 257128 at *3; Notice of Appeal, ROA

page 308 of 792.
On June 8, 2010, Judge Cardoza held a further hearing
on the motion to withdraw guilty plea.

See Transcript of

Proceedings on Appeal (June 8, 2010) at 2 (filed in the ICA on
November 9, 2011) (calling the case for further hearing on the
motion to withdraw guilty plea).

Once the case was called and

attorneys for the State and Spears had made their appearances,
Judge Cardoza noted that the court was unable to get Spears on
the telephone from his prison facility.

Id. at 2.

He then

stated:
I think we’re all aware that any further
delay is prejudicing Mr. Spears because he’s
16

claiming that he should have already been let
out. I think none of the facts are in
dispute. The only things in dispute is why
the DPS should be allowed to disregard a
court order.
Id. at 3.

He further stated to the attorneys:
Here’s my concern. We have Mr. Spears
arguing that he shouldn’t be in custody and
there’s an order that I never should have
issued in the first place in place that’s
incorrect under the facts and under the law.
So, I'm willing to hear more arguments
on this and allow you to present any other
briefing that you want to, but I think I have
to do what State versus March tells me to do,
and that is I have to vacate the order.

Id. at 8.
Judge Cardoza added, “So, at this time, I’m going to
order that order giving him credit for time that he didn’t
actually serve be vacated.”

Id. at 9.

deny the . . . motion to withdraw.

He then stated, “I won’t

What I’ll do is I’ll give you

another hearing date on that so you can brief it.

The bottom

line is I never should have issued this order in the first place
and that’s what I have to accept.

I was wrong.”

Id. at 11.

The

hearing on the motion to withdraw guilty plea was then continued
to June 24, 2010.5

5

The parties did not brief and this court does not here
address whether, in 2010, Judge Cardoza was actually empowered to
vacate his order entered nearly a decade earlier, thereby
requiring Spears to serve 73 more days in custody than Spears,
the State, and the trial judge had contemplated in 2001. At the
hearing before this court on October 30, 2017, this court said
that this court would not have considered itself to have had such
17

On June 24, 2010, Judge Cardoza called a further
hearing on Spears’s motion to withdraw guilty plea.

When the

court called Spears’s prison facility, the court was told that
Spears had been transferred to a different facility.
then continued the matter to June 29, 2010.

The court

See Transcript of

Proceedings on Appeal (June 24, 2010) at 3-4 (filed in the ICA on
November 3, 2010).
At the end of the day on June 24, 2010, Judge Cardoza
issued a written order reiterating his oral ruling of June 8,
2010.

He vacated the stipulated orders giving Spears the 73 days

of credit at issue.

See Sua Sponte Order Rescinding Stipulated

Order re: Jail Confinement, Filed April 27, 2001, ECF No. 31-4.
His new order stated:
On June 8, 2010, a further hearing on
Defendant EVERETT SPEARS’ (“Defendant”)
motion for writ and motion to withdraw guilty
plea was held in [Case 1]. Matthew Nardi,
Esq. represented Defendant. During said
hearing, the Court observed that the
stipulated order signed by this Court

authority even if this court had granted credit illegally.
However, this court expressly recognized that restrictions it
thought applicable to its own actions might not apply to other
courts. At this point, this court has no reason to explore that
matter further. What is now before this court are claims against
Dydasco. Spears does not establish a clearly established
constitutional right to the credit. See generally Kernan v.
Cuero, S. Ct., 2017 WL 5076049 (Nov. 6, 2017) (noting in the
habeas context that it was not clearly established that specific
performance of a plea agreement was constitutionally required
such that the government could not amend charges following a
guilty plea while allowing the defendant to withdraw an earlier
guilty plea made pursuant to the plea agreement).
18

granting Defendant credit for time served in
[Case 2] for time served only in [Case 1] was
illegal and ordered that said order be
rescinded. The purpose of this order is to
reduce to writing the Court’s oral order of
June 8, 2010.
With the exception of the fact that the
same defendant was charged in both of the
above cases, there is no dispute that the
charges in the two cases are unrelated. On
April 27, 2001, the parties in the above
matters entered into a “stipulated order re:
jail confinement” that provided that
Defendant be “committed to the custody of the
Director of the Department of Public Safety
for a period of one (1) year confinement in
[Case 2] credit for time served nunc pro tunc
to April 29, 2000 at 2330 hours.” On May 8,
2001, the parties entered into an “amended
stipulated order re: jail confinement” that
did not change the substance of the
stipulated order filed April 27, 2001.
It is undisputed that Defendant was not
in custody in [Case 2] from April 29, 2000
through July 11, 2000. Indeed, in [Case 2],
Defendant was charged by indictment filed on
July 3, 2000. He was arrested in [Case 2] on
July 12, 2000. During the period of April
29, 2000 through July 11, 2000, Defendant was
in custody in [Case 1] only. Thus, pursuant
to the stipulated orders filed April 27, 2001
and May 8, 2001, Defendant was given credit
in [Case 2] for time served only in [Case 1].
Although a sentencing court is given
broad discretion in sentencing defendants,
the sentence imposed must be authorized by
statute. State v. March, 94 Hawai‘i 250,
254, 11 P.3d 1094, 1098 (2000). Hawai‘i
Revised Statutes (“HRS”) § 706–600 expressly
precludes the imposition of a sentence not
authorized by chapter 706. Id. HRS
§ 706–671 not only authorizes, but also
mandates, that a trial court credit a
defendant for any time served in connection
with the same offense. HRS § 706–671,
19

however, does not authorize courts to credit
a defendant with time served for another
offense. Id. at 254–55, 11 P.3d 1098–99. A
sentence that credits a defendant with time
served for an unrelated offense is illegal
because the sentencing court is not
authorized by Chapter 706 to grant such a
credit. Id. at 255, 11 P.3d at 1099.
Here, by stipulated orders filed April
27, 2001 and May 8, 2001, Defendant was given
credit in [Case 2] for time he had served in
[Case 1], an unrelated case. There is no
dispute that Defendant was not in custody in
[Case 2] during the period of April 29, 2000
through July 11, 2000. Thus, the April 27,
2001 and May 8, 2001 stipulated orders that
gave credit to Defendant for time he had not
actually served in [Case 2] were illegal and
should be rescinded. Now, therefore,
IT IS HEREBY ORDERED that the stipulated
order re: jail confinement, filed in the
above matters on April 27, 2001, and the
amended stipulated order re: jail
confinement, filed in the above matters on
May 8, 2001, are rescinded. Nothing in this
order shall preclude Defendant from pursuing
the motions he has already filed or may file
in the above matters. Any such motions will
be heard and disposed of by separate order.
ECF No. 31-4.
On June 29, 2010, Judge Cardoza held a continued
hearing on Spears’s motion to withdraw guilty plea.
his attorney participated in the hearing.

Spears and

See Transcript of

Proceedings on Appeal (June 29, 2010) at 2 (filed in the ICA on
November 9, 2011).

Spears’s attorney argued that Spears should

be released immediately because the judge lacked the power to
rescind the stipulated orders.

Id. at 4-5.

20

After a discussion

of the illegality of the credits he had earlier ordered, Judge
Cardoza examined the motion to withdraw guilty plea, noting that
there might be issues as to what had happened that required an
evidentiary hearing.

Id. at 11.

He ended the hearing by stating

that he would find a hearing date and contact the parties.

Id.

at 31.
On August 23, 2010, Spears appealed the order of June
24, 2010, arguing that the state court and the State of Hawaii
had breached his plea agreement and that the state court had
violated his due process rights by rescinding the agreed-upon
credit.

See ECF No. 31-6, PageID # 212.
On April 24, 2012, Spears filed the Complaint in this

matter.

See ECF No. 1.
On January 23, 2013, the ICA concluded that it lacked

jurisdiction because the order of June 24, 2010, was not a final
appealable order.

See Spears, 2013 WL 257128 at *5.

On October 21, 2013, Magistrate Judge Richard L.
Puglisi granted Spears’s motion to stay this case in part.

This

stay, which was over the State’s objection, was to allow the
state court to decide Spears’s motion to withdraw guilty plea.
See ECF No. 50.

The case was not reopened until June 2017.

See

ECF Nos. 88, 93.
According to the docket in Case 2, on October 24, 2013,
the state trial court held a proceeding at which it set a hearing

21

date of April 3, 2014, for a Rule 40 motion that was to be filed
by February 14, 2014, as a special prisoner proceeding, or “SPP.”
See Docket Sheet in Case 1.
Spears filed a Rule 40 motion on June 25, 2014.

See

ECF No. 59-2 (Petition to Vacate, Set Aside, or Correct Judgment
or to Release Petitioner from Custody in SPP No. 14-1-0006(3)).
According to the docket sheet for that case, the petition was
denied on January 26, 2016.

Amended Findings of Fact,

Conclusions of Law, and Judgment Denying Petition were filed on
February 29, 2016.
on November 9, 2016.

Spears appealed, but the appeal was dismissed
See http://hoohiki.courts.hawaii.gov/

(enter 2PR141000006 under Case ID) (last visited October 20,
2017).
Spears says that he was ultimately incarcerated for 73
more days than he should have been.

See Declaration of Everett

Spears ¶ 12, ECF No. 33-1, PageID # 252.
IV.

ANALYSIS.
Spears initially asserted six claims in his Complaint,

which this court summarized in its earlier Order:
First, Spears asserts a claim against
all Defendants under 42 U.S.C. § 1983 for
“unlawful imprisonment” in violation of his
Eighth Amendment rights. Id. ¶¶ 17-23.
Second, Spears asserts a § 1983 claim against
all Defendants for violation of his
Fourteenth Amendment due process and equal
protection rights. Id. ¶¶ 24-26. Third,
Spears asserts a § 1983 claim against DPS and
Defendants John and Jane Does 1-10 and “their
22

respective departments” for “negligent
failure to supervise” in violation of his
Eighth and Fourteenth Amendment rights. Id.
¶¶ 27-30. Fourth, Spears asserts a § 1983
claim against all Defendants for “deliberate
indifference” in violation of his Eighth and
Fourteenth Amendment rights. Id. ¶¶ 31-34.
Spears’s fifth and sixth claims are asserted
against all Defendants for state tort claims
of false arrest and intentional infliction of
emotional distress.
Order Dismissing with Prejudice § 1983 and State Tort Claims
For Money Damages Against the State of Hawaii, Department of
Public Safety, and the Individuals in Their Official Capacities,
as Well as All § 1983 Claims Based on Alleged Violations of State
Law; Order Dismissing Without Prejudice the Prospective
Injunctive Relief Claims under § 1983, ECF No. 13, PageID # 40.
Although the Complaint asserts a state-law claim that Spears
calls a “false arrest” claim, paragraph 35 of the Complaint makes
it clear that Spears is actually asserting a false imprisonment
claim.

See ECF No. 1, PageID # 11.
At this point, given the court’s earlier order, only

the individual capacity § 1983 claims (the First, Second, and
Fourth Causes of Action) and state-law claims for false
imprisonment and intentional infliction of emotional distress
(the Fifth and Sixth Causes of Action) against Dydasco and Read
remain for adjudication.

Id., PageID # 47.

The Third Cause of

Action is a negligent failure to supervise claim.

However, there

is no allegation that Dydasco was supervising anyone.

23

Instead,

the facts establish that Spears’s claims against Dydasco are
entirely based on her 2009 confirmation of Spears’s release date
and her letter of March 4, 2010, to Spears responding to Spears’s
assertion that he should be released in May 2010 and also
informing Spears that the Department of Public Safety would be
seeking guidance from Judge Cardoza on whether Spears should
receive the 73 days of credit.
This is not the first case this court has had
addressing overdetention of state prisoners.

See, e.g.,

Beckstrand v. Read, 2012 WL 4490727 (Sept. 26, 2012), rev’d, 563
Fed. App’x 533, 534 (9th Cir. 2014), aff’d after remand, 680 F.
App'x 609, 610 (9th Cir. 2017).

While this court recognizes the

importance of the issue and is committed to giving the issue
serious attention, this court finds misplaced and unjustified
Spears’s focus on Dydasco as liable to him for overdetention.
A.

Summary Judgment is Granted in Favor of Dydasco
With Respect to the § 1983 Claims.

Section 1983, under which the remaining federal claims
are brought, provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in

24

equity, or other proper proceeding for
redress.
28 U.S.C. § 1983.

A § 1983 claimant must establish that: (1) a

person acting under the color of state law committed the conduct
at issue, and (2) the conduct deprived the claimant of some
right, privilege or immunity protected by the Constitution or
laws of the United States.

Leer v. Murphy, 844 F. 2d 628, 632-33

(9th Cir. 1988); see also Devereaux v. Abbey, 263 F.3d 1070, 1074
(9th Cir. 2001) (“Section 1983 creates a private right of action
against individuals who, acting under color of state law, violate
federal constitutional or statutory rights.”).
Dydasco moves for summary judgment with respect to the
§ 1983 claims on the grounds that her letter to Spears “correctly
set out the application of HRS § 706-671 to Plaintiff’s sentences
and therefore his correct release date.

Defendant correctly

calculated Plaintiff’s sentence and therefore his correct release
date.

Defendant correctly calculated Plaintiff’s sentence, and

he was released on time.”

Motion at 12.

As a result, Dydasco

argues that she is entitled to both absolute and qualified
immunity.

Motion at 12-16.
1.

Dydasco is Not Entitled To Absolute Immunity
With Respect to Spears’s § 1983 claims.

Citing Engebretson v. Mahoney, 724 F.3d 1034 (9th Cir.
2013), Dydasco argues that she is entitled to absolute immunity
with respect to Spears’s § 1983 claims.

25

The court is

unpersuaded.

Engebretson held that “prison officials charged

with executing facially valid court orders enjoy absolute
immunity from § 1983 liability for conduct prescribed by those
orders.”

Id. at 1039.

An absolutely immune defendant who relied

on Judge Cardoza’s order of June 8, 2010, which vacated the
stipulated orders, would not be liable under § 1983 for any part
of the alleged 73-day overdetention occurring after that date.
Moreover, nothing in the record establishes that Dydasco did or
could have acted in compliance with any court order.

Instead,

the record reflects that all of Dydasco’s actions occurred before
the order of June 8, 2010.

Dydasco therefore fails to establish

the bases for absolute immunity under Engebretson.

Of course, to

the extent Spears is seeking to hold Dydasco financially
responsible for the actions of others who relied on the order of
June 8, 2010, Spears does not show that Dydasco caused any
overdetention after that date.
2.

Dydasco Has Qualified Immunity With Respect
to Spears’s § 1983 claims.

The court turns now to the issue of qualified immunity.
“[G]overnment officials performing discretionary functions [are
entitled to] qualified immunity, shielding them from civil
damages liability as long as their actions could reasonably have
been thought consistent with the rights they are alleged to have
violated.”

Anderson v. Creighton, 83 U.S. 635, 638 (1987)

(citations omitted).
26

The Supreme Court has set forth a two-pronged analysis
for determining whether qualified immunity applies.

See Saucier

v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other
grounds by Pearson v. Callahan, 555 U.S. 223 (2009).

In one

prong, the court considers whether the facts, “[t]aken in the
light most favorable to the party asserting the injury[,] . . .
show [that] the [defendant’s] conduct violated a constitutional
right[.]”

Saucier, 533 U.S. at 201.

Under this prong, this

court must decide whether the facts make out a violation of a
constitutional right.

Pearson, 555 U.S. at 232.

Under the other prong, the court examines whether the
right allegedly violated was clearly established at the time of
the violation.

Saucier, 533 U.S. at 201; Scott v. Harris, 550

U.S. 372, 377 (2007).

The “clearly established” prong requires a

determination of whether the right in question was clearly
established in light of the specific context of the case, not as
a broad general proposition.

Saucier, 533 U.S. at 194; Walker v.

Gomez, 370 F.3d 969, 974 (9th Cir. 2004).
A Government official’s conduct violates
clearly established law when, at the time of
the challenged conduct, the contours of a
right are sufficiently clear that every
reasonable official would have understood
that what he is doing violates that right.
We do not require a case directly on point,
but existing precedent must have placed the
statutory or constitutional question beyond
debate.

27

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quotation marks,
alterations, and citations omitted).

The crucial question is

whether Dydasco could have reasonably (even if erroneously)
believed that her conduct did not violate Spears’s rights.
Devereaux, 263 F.3d at 1074.

Whether a constitutional right was

“clearly established . . . is a question of law that only a judge
can decide.”

Morales v. Fry, __ F.3d __, 2017 WL 4582732, at *3

(9th Cir. Oct. 16, 2017).
This court may analyze the two prongs in either order.
See Pearson, 555 U.S. at 236 (“The judges of the district courts
and the courts of appeals should be permitted to exercise their
sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.”).
When adjudicating a motion to dismiss based on
qualified immunity, the court examines the facts as alleged in
the complaint.

However, on a motion for summary judgment such as

this, the plaintiff can no longer rest on the pleadings and the
court instead looks at the evidence before it in the light most
favorable to the plaintiff.

See Behrens v. Pelletier, 516 U.S.

299, 309 (1996); see also Stonecipher v. Valles, 759 F.3d 1134,
1148 n.9 (10th Cir. 2014) (“[t]he denial of qualified immunity
protection at the motion to dismiss stage does not bind the court
at the summary judgment stage.

The legally relevant factors for

28

a qualified immunity decision will be different at the summary
judgment stage--no longer can the plaintiffs rest on facts as
alleged in the pleadings.”); Sandoval v. Las Vegas Metro. Police
Dep’t, 756 F.3d 1154, 1160 (9th Cir. 2014) (“Government officials
are not entitled to qualified immunity if (1) the facts taken in
the light most favorable to the party asserting the injury show
that the defendants’ conduct violated a constitutional right and
(2) the right was clearly established at the time of the alleged
violation.” (quotation marks and alterations omitted)).
Thus, in Jones v. Las Vegas Metropolitan Police
Department, __ F.3d. __, 2017 WL 4700317 (9th Cir. Oct. 20,
2017), the Ninth Circuit on a summary judgment motion examined
whether officers had qualified immunity with respect to their use
of a taser by examining whether the actual facts demonstrated a
Fourth Amendment violation and whether that right was clearly
established.
The facts, viewed in the light most favorable to
Spears, do not demonstrate that Dydasco violated Spears’s
constitutional rights.

Spears specifically relies on an Eighth

Amendment right to be free of unlawful imprisonment, Fourth and
Fourteenth Amendment rights to due process and equal protection,
and Eighth Amendment and Fourteenth Amendment rights to be free
of deliberate indifference.

The record does not show that any

“clearly established” constitutional right was violated.

29

The undisputed facts show that the issue of Spears’s
entitlement to the 73 days credit arose as early as 2008.

In

July 2008, Spears wrote to Scott Jibo of the Department of Public
Safety, claiming that the calculated release date of July 24,
2010, was incorrect and that the release date should be May 16,
2010.

See ECF No. 31-10, PageID # 223.

Jeanette Balero of the

Department of Public Safety responded in September 2008, telling
Spears that the release date of July 24, 2010, had been properly
calculated.

See ECF No. 31-11, PageID # 224.

In November 2008,

Raynett Ruiz also calculated Spears’s maximum release date as
July 24, 2010.

In December 2009, Dydasco, at Spears’s request,

audited Spears’s file, determining, consistent with the previous
calculations, that Spears’s release date should be July 24, 2010.
See ECF No. 31-12, PageID # 226.
On March 1, 2010, Spears filed a motion to withdraw
guilty plea in state court, arguing that he was being deprived of
73 days of pretrial credit.
On March 4, 2010, Dydasco and Read responded to a
letter Spears had sent to the Department of Public Safety the
previous month, reiterating to Spears that, notwithstanding the
stipulated orders, Hawaii law prohibited pretrial credit for days
a defendant had not served in prison.

The letter informed Spears

that the Department of Public Safety would be sending Judge
Cardoza a letter requesting guidance with respect to the

30

stipulated orders.

See ECF No. 31-15, PageID #s 234-35.

On the

same day, Read (but not Dydasco) sent Judge Cardoza such a
letter.

See ECF No. 31-16, PageID #s 236-37.
On April 20, 2010, at the hearing on Spears’s motion to

withdraw guilty plea, Judge Cardoza noted that State v. March
prohibited giving defendants credit for time they were not in
custody.

See Transcript at 25 (Apr. 20, 2010).

In other words,

prior to the date Spears was claiming that he should have been
let out, Judge Cardoza was agreeing in principle with the
Department of Public Safety’s position that defendants were not
supposed to be given credit for time they were not in custody.
Further proceedings occurred, including a hearing on May 6, 2010,
at which Spears asked for an attorney to represent him with
respect to the pretrial credit issue.
request.

Judge Cardoza granted that

Spears asked the judge whether the delay caused by the

appointment of an attorney would mean that he would not be
released until July 24, 2010.

Judge Cardoza responded, “Well,

we’ll sort that out at a hearing where you have counsel.

But

we’re going to have to give you enough time to get all of that
done.”

Transcript at 12-13 (May 6, 2010).
On June 8, 2010, Judge Cardoza held another hearing on

the motion to withdraw guilty plea.

At that hearing, Judge

Cardoza stated that, in light of Hawaii law, he had erred in
issuing the stipulated orders.

He then vacated those orders.

31

See Transcript at 8-9 (June 8, 2010).

On June 24, 2010, he filed

a written order that reiterated the oral ruling vacating the
stipulated orders.

See ECF No. 31-4.

That order has not been

reversed or vacated on appeal.
Spears says that Dydasco “ignored the valid 2001 Court
Orders and decided on her own to follow a different sentencing
calculation which violated Hawaii Rules and Hawaii law.”
at 9, ECF No. 34, PageID # 321.

Opp’n

Spears further argues that

Dydasco “knew that these rights are being violated as Plaintiff
informed her of the miscalculations” and his allegedly correct
release date.

Id.

However, the record establishes that Dydasco

only audited Spears’s pretrial credits, which had already been
reviewed by others in the Department of Public Safety, and that
she wrote Spears a letter in response to his claim concerning the
73 days credit.

It was Read who asked Judge Cardoza for guidance

as to whether Spears should get the 73 days of pretrial credit
for time he was not in custody with respect to Case 2.
Spears does not establish that any constitutional right
was “clearly established” such that it barred Department of
Public Safety personnel from asking the judge for guidance as to
whether it should enforce an order that improperly provided
pretrial credit to an inmate in violation of Hawaii law.

Nor

does Spears demonstrate any “clearly established” constitutional
right prohibiting a person in Dydasco’s position from determining

32

that a court order had improperly granted pretrial credit in
violation of Hawaii law, leading someone else to ask the judge
for guidance as to whether the Department of Public Safety should
follow the law or a court order.

Dydasco acted reasonably in

questioning the court order in light of Hawaii law, even if that
caused others in her department to ask the judge for guidance.
Spears’s relies on Beckstrand v. Read, 2012 WL 4490727
(D. Haw. Sept. 26, 2012).

That citation is unavailing.

In

Beckstrand, Department of Public Safety officials had assumed
they were “empowered to correct a judge’s purported error” and
unilaterally undid a judge’s order to “impose what DPS employees
deemed to be a correct application of March on Beckstrand.”
at *8.

Id.

Concluding that “Beckstrand clearly had a right to be

free of decisions by prison officials to correct allegedly
erroneous judicial decisions,” this court ruled that the
Department of Public Safety officials in that case had failed to
show they had qualified immunity with respect to Beckstrand’s
claimed Fourth Amendment violation.

Id.

After Spears had cited this court’s Beckstrand ruling
in a brief filed in the present case in 2013, the Ninth Circuit
reversed this court’s Beckstrand ruling.

The Ninth Circuit held

that it was not clearly established that post-conviction
overdetention violated the Fourth Amendment.
Read, 563 Fed. App’x 533, 534 (9th Cir. 2014).

33

See Beckstrand v.
Earlier this

year, on appeal after remand, the Ninth Circuit affirmed this
court’s determination that claims against the state officials in
Beckstrand were barred by the applicable statute of limitations.
The Ninth Circuit noted that, even without a time bar, the
officials were entitled to summary judgment on qualified immunity
See Beckstrand v. Read, 680 F. App'x 609, 610 (9th Cir.

grounds.

2017) (citing Haw. Rev. Stat. § 706-671 and State v. March, 94
Haw. 250, 11 P.3d 1094 (2000).

That decision similarly assures

Dydasco of qualified immunity with respect to her alleged
conduct.
Importantly, Beckstrand cannot support Spears’s
position because this court’s ruling in favor of the plaintiff in
that case, which was reversed, turned on the flouting of a court
order.

No such flouting occurred here.

Instead, Dydasco noted

that the stipulated orders were incorrect and illegal under
Hawaii law.

Other Department of Public Safety officials then

alerted Judge Cardoza to the presentence credit problem, asking
the judge for guidance as to what to do.
Cardoza vacated the credit.

Ultimately, Judge

Unlike the officials in Beckstrand,

Dydasco did not act on her own.
Not only does Spears fail to overcome the “clearly
established” prong of the qualified immunity test, he also fails
to demonstrate the factual basis for a constitutional violation.

34

Judge Cardoza ultimately determined that the Department of Public
Safety was correct about the pretrial credit.

Rightly or

wrongly, it was Judge Cardoza, not Dydasco, who vacated the
stipulated orders that gave Spears 73 days of credit.

Given that

order, which has not been overturned, vacated, or otherwise
reversed on appeal, Spears cannot be said to have established
that he was actually overdetained by Dydasco.
Even if Judge Cardoza arguably should not have vacated
the stipulated orders, Spears makes no showing that it was
Dydasco who somehow violated any of Spears’s rights.

She audited

an earlier calculation and told Spears that the judge would be
asked for guidance.

The absence of a violation of rights in such

activity is fatal to all of Spears’s constitutional claims based
on his alleged overdetention.

Spears fails to establish the

factual predicate for a constitutional violation by Dydasco.
This case is therefore distinguishable from other cases this
court has handled in which a prisoner proved actual
overdetention.

See, e.g., Itagaki v. Frank, Civ. No. 09-00110

SOM/LEK, ECF No. 82 (special verdict form indicating that Itagaki
had been overdetained and awarding $83,000 for that
overdetention).
The court additionally notes that Spears lacks a
cognizable claim under § 1983 for any alleged violation of state
law, to the extent Spears is relying on § 1983 in that respect.

35

Although Dydasco was involved in the conduct that Spears
complains of, Dydasco cannot violate § 1983 by violating state
See Leer, 844 F.2d at 632-33 (9th Cir. 1988)(explaining

law.

that a cognizable § 1983 violation requires the plaintiff to
establish that the defendant’s conduct “deprived the claimant of
some right, privilege, or immunity protected by the Constitution
or the laws of the United States”).
B.

Summary Judgment is Granted in Favor of Dydasco
With Respect to the State-Law Claims Asserted in
the Complaint.

The court next turns to Spears’s state-law claims of
false imprisonment and intentional infliction of emotional
distress.

Dydasco moves for summary judgment with respect to

those claims, arguing that, pursuant to Towse v. State, 64 Haw.
624, 631 647 P.2d 696, 702 (1982), a nonjudicial government
official has a qualified or conditional privilege with respect to
tortious actions taken in the performance of his or her public
duty.

This privilege is the result of the Hawaii Supreme Court’s

balancing of competing interests.

It protects the innocent

public servant’s pocketbook, yet allows an injured party to be
heard.

See Medeiros v. Kondo, 55 Haw. 499, 504, 522 P.2d 1269,

1272 (1974).
The privilege shields all but the most guilty
nonjudicial officials from liability, but not from the imposition
of a suit itself.

Towse, at 631, 647 P.2d at 702.

36

Because the

privilege was intended to shield all but the most guilty, the
Hawaii Supreme Court holds plaintiffs to a higher standard of
proof, requiring clear and convincing evidence that a defendant
was motivated by malice.

Awakuni v. Awana, 115 Haw. 126, 140,

165 P.3d 1027, 1041 (2007).

Accordingly, for a tort action to

lie against a nonjudicial government official, the injured party
must allege and demonstrate by clear and convincing proof that
the official was motivated by malice and not by an otherwise
proper purpose.

Id. at 140, 165 P.3d at 1041; Towse, 64 Haw. at

631–33, 647 P.2d at 702–03; Medeiros, 55 Haw. at 504–05, 522 P.2d
at 1272; Pogoso v. Sarae, 138 Haw. 518, 523, 382 P.3d 330, 335
(Ct. App. 2016).

When a public official is motivated by malice,

and not by an otherwise proper purpose, Hawaii law provides that
the cloak of immunity is lost and that the official must defend
the suit the same as any other defendant.

Marshall v. Univ. of

Haw., 9 Haw. App. 21, 37, 821 P.2d 937, 946 (Ct. App. 1991),
abrogated on other grounds by Hac v. Univ. of Haw., 102 Haw. 92,
73 P.3d 46 (2003).
The Hawaii Supreme Court has stated that, in
nondefamation cases, courts are to define malice “in its ordinary
and ususal sense.”

Awakuni, 115 Haw. at 141, 165 P.3d at 1042.

Malice therefore refers to “the intent, without justification or
excuse, to commit a wrongful act, reckless disregard of the law
or of a person’s legal rights, and ill will; wickedness of

37

heart.”

Id. (quotation marks, citation, and alterations

omitted).
Dydasco says that she has “never met or spoken with”
Spears, and has “never at any time had any malice or ill-will
toward [him].”

Dydasco Decl. ¶¶ 14-15.

the record to the contrary.

There is no evidence in

Because Spears offers no evidence

showing that Dydasco was motivated by malice or an otherwise
improper purpose or that Dydasco recklessly disregarded the law,
the court grants Dydasco summary judgment with respect to the
state law tort claims of false imprisonment and intentional
infliction of emotional distress (the Fifth and Six Causes of
Action asserted in the Complaint).
V.

ORDER TO SHOW CAUSE WHY ACTION AGAINST READ SHOULD NOT
BE DISMISSED.
According to an unexecuted summons filed with the court

on July 18, 2012, Read was not served with the Complaint and
summons in this case.

See ECF No. 15.

There is no dispute that

Read has not been served in the more than 5 years since then,
although the court notes that, except for a short period, this
case was stayed from October 2013 to June 2017.

See ECF Nos. 49

and 93.
On June 5, 2017, the court issued a minute order that
required Spears to file a status report no later than June 16,
2017, detailing which claims remained against which defendant(s).
See ECF No. 90.

On June 16, 2017, Spears filed a Status Report
38

that stated, “Thomas L. Reed [sic] and the Dpt. Of Public Safety
are no longer parties in this law suit as the Court dismissed
them in Summary Judgment Order dated 6-19-13.”
PageID # 635.

ECF No. 91,

Of course, the court’s previous order only granted

summary judgment in favor of Read in his official capacity,
leaving the individual capacity claims against him for
adjudication.

See ECF No. 13.

On June 20, 2017, Dydasco filed a status report in
which she called herself “[t]he remaining Defendant.”
92, PageID # 701.

ECF No.

On August 9, 2017, Spears similarly stated,

“The persons involved who did not release him included Tani
Dydasco, the remaining Defendant,” again reasoning that this
court had granted summary judgment in favor of Read.

ECF No. 97,

PageID # 711.
In the court’s usual, prehearing inclinations, the
court asked Spears to clarify whether he was still asserting
claims against Read.

At the hearing, Spears indicated that he

was asserting claims against Read, but that he had been unable to
serve Read because he did not know Read’s address.

Spears

conceded that he did not seek discovery concerning Read’s
address.
Under Rule 4(m) of the Federal Rules of Civil
Procedure, because Spears did not serve Read within 90 days of
the filing of the Complaint, this court is to dismiss the action

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without prejudice against Read or order that Read be served
within a specified time.

The rule requires this court to extend

the time for service for an appropriate period if Spears shows
good cause for his failure to timely serve the Complaint on Read.
The court therefore orders Spears to show cause why the
action should not be dismissed with respect to Read pursuant to
Rule 4(m).

No later than November 17, 2017, Spears must file a

document explaining the good cause for his failure to timely
serve Read or indicating that he is abandoning claims with
respect to Read.

In the absence of a demonstration of good cause

justifying Spears’s failure to timely serve Read, this action
will be dismissed with respect to Read given the age of this case
and the lack of effort to serve Read, both of which support
dismissal rather than a further opportunity to attempt service.
VI.

CONCLUSION.
For the foregoing reasons, the court grants Defendant

Tani Dydasco’s motion for summary judgment.
The only claims left in this case are those asserted
against Read, who has not been served with the Complaint and
summons in this case.

As required above, no later than November

17, 2017, Spears must demonstrate good cause for his failure to
timely serve Read.

Absent such a demonstration, the Complaint

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will be dismissed with respect to Read, and judgment shall be
entered against Spears and in favor of Defendants.

IT IS SO ORDERED.

Dated:

Honolulu, Hawaii, November 8, 2017.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spears v. State of Hawaii Department of Public Safety, Civ. No. 12-00218 SOM/RLP;
ORDER GRANTING DEFENDANT TANI DYDASCO'S MOTION FOR SUMMARY JUDGMENT; ORDER TO SHOW
CAUSE WHY ACTION WITH RESPECT TO THOMAS L. READ SHOULD NOT BE DISMISSED

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