Dean v. Corrections Corporation of America et al

Filing 48

ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANTS' MOTION TO TRANSFER re 19 ; 43 ; 45 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 1/29/13. "The court adopts the F&R in full, grants Defendants' Motion, and directs the Clerk of Court to transfer this case to the District of Arizona." (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
Civ. No. 12-00299 SOM/KSC

EDWARD LOUIS DEAN,

)
)
Plaintiff,
)
)
vs.
)
)
CORRECTIONS CORPORATION )
OF AMERICA, ET AL.,
)
)
Defendants.
)
________________________ )

ORDER ADOPTING THE MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS GRANTING
DEFENDANTS’ MOTION TO
TRANSFER

ORDER ADOPTING THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS
GRANTING DEFENDANTS’ MOTION TO TRANSFER
Plaintiff is an inmate at the Saguaro Correctional
Center in Arizona, operated by Defendant Corrections Corporation
of America (“CCA”).

Plaintiff is serving time at Saguaro for

crimes he committed in Hawaii.

Plaintiff filed a First Amended

Complaint before this court alleging that the CCA had failed to
accommodate his religious dietary restrictions.

Defendants filed

a Motion to Transfer Venue (“Motion”), and Magistrate Judge Kevin
Chang issued his Findings and Recommendation (“F&R”).
suggested that the district court grant the Motion.
now raises four objections to the F&R.

The F&R

Plaintiff

The court is unpersuaded

by Plaintiff and adopts the F&R.
I.

BACKGROUND.
Plaintiff claims that CCA has “refused to provide

Plaintiff’s properly requested and court ordered religious diet
which is a raw non-cooked vegetarian diet.”

First Am. Compl.

¶ 11.

Plaintiff’s First Amended Complaint alleges the following

claims: (1) failure to allow the free exercise of Plaintiff’s
religion; (2) violation of the Religious Land Use and
Institutionalized Persons Act; and (3) cruel and unusual
punishment in violation of the Eighth Amendment.

ECF No. 1.

After Plaintiff filed a motion for a preliminary injunction, see
ECF No. 13, Defendants filed their Motion.

ECF No. 19.

Defendants’ Motion argued that this case should be
transferred to the United States District Court for the District
of Arizona.

Defendants explained: “Plaintiff is now, and was at

all times material to this matter, incarcerated in Arizona.
Moreover, each of the alleged violations occurred in Arizona,
which means the contacts regarding Plaintiff’s cause of action
are associated with Arizona and not Hawai’i.”

Motion at 3.

In

addition, Defendants said that “the litigation costs favor the
transfer of this case to Arizona” because all of the prison
officials who made decisions regarding Plaintiff’s diet at
Saguaro, as well as “nearly all of the sources of proof,” are in
Arizona rather than Hawaii.

Id. at 4.

Plaintiff objected to Defendants’ Motion on multiple
grounds.

ECF No. 38.

Plaintiff said that he would be

significantly prejudiced if the Motion were granted because
neither of his two attorneys was licensed to practice law in
Arizona; he claimed that transferring venue would “leave

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Plaintiff on his own without access to counsel through the
foreseeable future of this case.”

Opp’n at 2.

Plaintiff also

argued that the economics did not favor transferring venue
because “Ted Sakai [a State of Hawaii employee in Honolulu] is a
party and Hawaii will have the expense of bringing Ted Sakai
and/or his representative, paying for a hotel and meals.”
5.

Id. at

In addition, Plaintiff argued that, although Defendants

mentioned the costs of transporting out-of-state witnesses to
Hawaii, they failed to list who these were or to describe the
evidence that they will give.

Id. at 5-6.

Finally, Plaintiff

argued that the relevant documents to this case were required to
be maintained in Hawaii under Hawaii law.

Id. at 6.

Magistrate Judge Chang’s F&R carefully considered each
of the relevant factors in evaluating Defendants’ Motion.
ECF No. 43.

F&R,

Magistrate Judge Chang noted that although

“Plaintiff’s choice of forum would ordinarily weigh in favor of
maintaining the action in this district, his preference is given
less weight because he does not reside in the forum.”

Id. at 5.

In addition, Magistrate Judge Chang reasoned:
The contacts relating to Plaintiff’s causes
of action are in Arizona. Plaintiff claims
that Defendants have denied him his religious
diet. This alleged deprivation occurred in
Arizona, not Hawaii. The[re] are no
significant contacts between Plaintiff’s
claims and Hawaii, other than Plaintiff’s
status as a Hawii inmate and the contract
between Defendant CCA and the State of Hawaii
to house Hawaii inmates. By contrast, other
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than Plaintiff’s allegation that Defendant
Sakai has failed or refused to ensure that
Plaintiff is provided with his court ordered
religious diet, the claims all stem from
conduct that took place in Arizona.
Id. at 6.
Magistrate Judge Chang rejected Plaintiff’s argument
that transferring venue would prejudice him, noting that his
counsel could seek pro hac vice admission in Arizona.

“The mere

fact that counsel reside and practice in Hawaii does not compel a
finding that the case should remain here.”

Id. at 7.

Magistrate

Judge Chang also found that “great expense will be incurred with
the transportation, lodging, and meals for Defendants” if the
trial is held in Hawaii, because so many witnesses and the
relevant sources of proof are located in Arizona.

Id. at 8-9.

Magistrate Judge Chang therefore recommended that the court grant
Defendants’ Motion.

Id. at 10.

Plaintiff objects to the F&R on four grounds.
45.

ECF No.

First, Plaintiff argues that “because both of his attorneys

in this case are not licensed to [p]ractice law in Arizona,”
Plaintiff “would not have legal representation” if the court
transferred venue to the District of Arizona.

Id. at 2.

Second,

Plaintiff argues that Magistrate Judge Chang’s finding “that
there are no significant contacts between Plaintiff’s claim and
Hawaii is clearly erroneous.”

Id. at 4.

Third, Plaintiff

asserts that Defendants failed to “specifically list the evidence

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and witnesses that they are going to rely” on at trial.
4.

Id. at

Finally, Plaintiff objects to Magistrate Judge Chang’s

finding “that the documents are located in Arizona.”

Id. at 5.

The court adopts the F&R.
II.

STANDARD.
The district judge may accept, reject, or modify, in

whole or in part, the findings and recommendation made by the
magistrate judge.

Fed. R. Civ. P. 72(b).

If a party timely

objects to portions of the findings and recommendation, the
district judge reviews those portions of the findings and
recommendation de novo.
74.2.

Fed. R. Civ. P. 72(b)(3); Local Rule

The district judge may accept the portions of the findings

and recommendation to which the parties have not objected as long
as it is satisfied that there is no clear error on the face of
the record.

See United States v. Bright, 2009 WL 5064355, at *3

(D. Haw. Dec. 23, 2009); Stow v. Murashige, 288 F. Supp. 2d 1122,
1127 (D. Haw. 2003).
III.

ANALYSIS.
“For the convenience of the parties and witnesses, in

the interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought.”

28 U.S.C. § 1404(a).

In evaluating a motion to

transfer venue, a district court should consider, among other
things: (1) the location where the relevant agreements were
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negotiated and executed; (2) the state that is most familiar with
the governing law; (3) the plaintiff’s choice of forum; (4) the
respective parties’ contact with the forum; (5) the contacts
relating to the plaintiff’s cause of action in the chosen forum;
(6) the differences in the costs of litigation in the two forums;
(7) the ability to compel attendance of unwilling nonparty
witnesses; and (8) the ease of access to sources of proof.

Jones

v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).
The court agrees with Magistrate Judge Chang’s
analysis.

As Magistrate Judge Chang found, the first two Jones

factors are neutral because Plaintiff does not assert a breach of
contract claim, and Arizona and Hawaii are equally familiar with
the relevant federal law.

F&R at 5.

Although the third factor,

Plaintiff’s choice of forum, would typically weigh in favor of
keeping the action in this district, Plaintiff’s preference is
given less weight because he does not reside in this forum.

Id.

at 5; see also Ah Sing v. Kimoto, 2012 WL 1366600, at *3 (D. Haw.
Apr. 18, 2012).

Additionally, this court agrees that the fourth

and fifth factors “weigh strongly” in favor of transferring the
case to Arizona.

F&R at 6.

As the F&R reasoned, “other than

Plaintiff’s allegation that Defendant Sakai has failed or refused
to ensure that Plaintiff is provided with his court ordered
religious diet, the claims all stem from conduct that took place
in Arizona.”

Id.

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The court also agrees with the F&R that, because
transferring venue would be cost-effective, the final three
factors weigh in favor of granting Defendants’ Motion.

“If the

case proceeds in Hawaii, the State will be burdened with the
expense of transporting Plaintiff to Hawaii, with the attendant
costs for his supervision during the transfer and his
incarceration during the pendency of his trial.”

Id. at 8.

The

relevant sources of proof – the individuals at Saguaro who were
in charge of addressing Plaintiff’s dietary restrictions – are
also in Arizona, and proceeding in Hawaii would mean that the
State would incur the costs of transporting these officials as
well.

Moreover, nonparty witnesses in Arizona would “incur

substantial expense to travel more than 100 miles to attend
trial.”

See Fed. R. Civ. P. 45(c)(3)(B)(iii).

By contrast, if

the case were transferred to Arizona, only Defendant Sakai (who
has consented to a transfer of venue) would need to travel to
Arizona.
None of Plaintiff’s four objections is persuasive.
First, as the F&R correctly states, transfer of venue will not
deprive Plaintiff of counsel.

Plaintiff’s counsel may seek pro

hac vice admission in Arizona. F&R at 7.

Alternatively,

Plaintiff may seek new representation or represent himself.
Second, this court does not agree with Plaintiff that
transfer should not be ordered in light of the State of Hawaii’s

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alleged failure to stop CCA from violating Plaintiff’s religious
rights.

Plaintiff says the failure occurred in Honolulu.

Magistrate Judge Chang recognized “Plaintiff’s status as a Hawaii
inmate and the contract between Defendant CCA and the State of
Hawaii to house Hawaii inmates.”

F&R at 6.

While these are

significant facts, they are outweighed by other venue
considerations.
Third, Plaintiff’s argument that Defendants failed to
provide a specific list of the materials and witnesses they would
rely on at trial is factually incorrect.

See Defendants’ Reply

in Support of Motion to Transfer Venue, ECF No. 41 at 6
(providing a list of relevant documents and individuals in
Arizona).
Finally, Plaintiff objects to the F&R on the ground
that Defendant Sakai is required “to develop and maintain a file
on the incarceration of each prisoner that should include the
document relative to this case.”

Obj. at 5.

Hawaii law

provides, “The director shall establish a record of all facts
relating to the admission, sentence, commutation, parole, pardon,
discharge, escape, death, and correctional programs of any
committed person, all actions that are taken for breach of
correctional rules, and all other occurrences of note concerning
the committed person.”

Haw. Rev. Stat. § 353-12.

While some of

these records may be relevant to this case, these records do not

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encompass the entirety of the records that Defendants have
already identified as relevant.

See Defendants’ Reply in Support

of Motion to Transfer Venue at 6 (identifying relevant
operational and institutional records).

In any event, as the

F&R’s analysis made clear, Magistrate Judge Chang’s
recommendation certainly did not hinge on the cost of shipping
paper records.

Rather, the focus of the F&R was the cost of

transporting Plaintiff and prison officials.

The court agrees

that these costs would be significant, and the court is not
persuaded by Plaintiff’s premature assertion that this case will
be resolved by summary judgment.
IV.

See Obj. at 5.

CONCLUSION.
The court adopts the F&R in full, grants Defendants’

Motion, and directs the Clerk of Court to transfer this case to
the District of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, January 29, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District
Judge
Edward L. Dean v. Correction Corporation of America, et al., Civ.
No. 12-00299 SOM/KSC; ORDER ADOPTING THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATIONS GRANTING DEFENDANT’S MOTION TO
TRANSFER

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