Murphy v. Kimoto et al

Filing 11

TRANSFER ORDER. Signed by JUDGE LESLIE E. KOBAYASHI on 3/20/2015. ~ This action is TRANSFERRED to the United States District Court for the District of Arizona, Phoenix Division ~ (afc)CERTIFICATE OF SERVICE< /center>Participants 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
MATTHEW KEONI MURPHY,
#A0721922,
Plaintiff,
vs.
SHERRI KIMOTO, JOHN IOANE,
TODD THOMAS, SGT. HOLLEY,
Defendants.
____________________________

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CIV. NO. 15-00022 LEK/RLP
TRANSFER ORDER

TRANSFER ORDER
Before the court is pro se Plaintiff Matthew Keoni
Murphy’s response to the January 29, 2015 Order to Show Cause.
See Doc. Nos. 7 (Order), 10 (Mot. for Venue).

Plaintiff also

submitted an amended prisoner civil rights complaint and a Motion
for Appointment of Counsel.
(Mot.).

See Doc. Nos. 8 (Am. Compl), 9

Plaintiff is incarcerated at the Saguaro Correctional

Center (“SCC”), located in Eloy, Arizona.

He names SCC

Warden Todd Thomas, SCC Disciplinary Hearing Officer (“DHO”) Sgt.
Holley, the Department of Public Safety (“DPS”) Mainland & FDC
Branch Administrator Shari Kimoto (“Kimoto”), and DPS Mainland &
FDC Branch Contract Monitor John Ioane (“Ioane”) as Defendants
(collectively, “Defendants”) in their individual capacities.
For the following reasons, this action is TRANSFERRED
to the United States District Court for the District of Arizona,
Phoenix Division.

I.

BACKGROUND

Plaintiff commenced this suit on January 20, 2015.
Doc. No. 1.

On January 29, 2015, the court dismissed his

Complaint for failure to state a claim, with leave granted to
amend.

Doc. No. 7.

The court also ordered Plaintiff to show

cause why this action should not be transferred to the United
States District Court for the District of Arizona.

Id.

Plaintiff filed the Amended Complaint on March 2. 2015.
See Am. Compl., Doc. No 8.

He broadly claims that SCC DHO Holley

violated his rights to due process during a disciplinary hearing
held at SCC on or about December 12, 2012.
50.

Id., PageID #40,47-

Plaintiff fails to identify the liberty interest he had that

entitled him to procedural due process during the disciplinary
hearing, or explain what specific and required procedures DHO
Holley violated.

After the hearing, DHO Holley submitted

Disciplinary Report #1179-12, which set forth his reasons for
finding Plaintiff guilty.

Id., PageID #41.

Plaintiff appealed

DHO Holley’s guilty finding to SCC Warden Thomas on December 22,
2014.

Id., PageID #51-55.

Plaintiff states that he provided

documentary evidence in his appeal clearly showing why DHO
Holley’s guilty finding should be overturned.

Id.

Plaintiff claims that Thomas, Ioane and Kimoto
negligently failed to expunge the “illegally obtained”
Disciplinary Report #1179-12 when he appealed, or before his
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scheduled parole hearing dates in January and March 2013.

He

alleges his appeal alerted Thomas to his claims, and that Kimoto
and Ioane knew or should have known that SCC officials violated
his right to due process.

He alleges Thomas’, Ioane’s, and

Kimoto’s failure to expunge Disciplinary Report #1179-12 resulted
in his being (1) denied a transfer back to Hawaii; (2) placed in
SCC maximum security housing for one year; (3) denied parole; and
(4) denied parole eligibility for two years.

Id., PageID #54-55

Plaintiff requests compensatory and punitive damages,
unspecified declaratory relief, and costs.
II.

Id., PageID #56.

VENUE

When jurisdiction is not founded solely on diversity,
such as civil rights actions brought under 42 U.S.C. § 1983,
venue is proper in the district in which: (1) any defendant
resides, if all of the defendants reside in the same state; (2) a
substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of the property that is the
subject of the action is situated; or (3) any defendant may be
found, if there is no district in which the action may otherwise
be brought.

28 U.S.C. § 1391(b); see also Ziegler v. Indian

River Cnty., 64 F.3d 470 (9th Cir. 1995) (extensive discussion on
jurisdiction); Lee v. Corr. Corp. of America, 525 F. Supp. 2d
1238, 1241 (D. Haw. 2007).

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A substantial part of the events or omissions
underlying Plaintiff’s claims occurred in Arizona.
disciplinary hearing took place in Arizona.

The

DHO Holley authored

the allegedly false Disciplinary Report #1179-12 in Arizona after
he presided over the disciplinary hearing.

Warden Thomas, who

apparently denied Plaintiff’s appeal, did so in Arizona.
To the extent Plaintiff claims he was subjected to
atypical and significant conditions of confinement after the
disciplinary hearing, entitling him to procedural protections
during the hearing, see Sandin v. Conner, 515 U.S. 472, 481-84
(1995), those conditions clearly occurred in Arizona because
Plaintiff was housed in SCC during the hearing and remains there
to date.

That is, Plaintiff’s transfer to SCC’s Maximum Security

unit for a year after the guilty finding, and any hardship he may
have suffered if he was ever housed in SCC’s disciplinary
segregation unit (which Plaintiff does not allege), necessarily
occurred in Arizona, where Plaintiff remains incarcerated.
Finally, DHO Holley and Warden Thomas can both be located in
Arizona, where Plaintiff remains incarcerated.
Plaintiff argues that venue is proper in Hawaii because
he was convicted in the United States District Court for the
District of Hawaii, then transferred to the custody of the Hawaii
Department of Public Safety.

See Doc. No. 10, PageID #64.

First, the court has reviewed its records and is certain that

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Plaintiff has never been a federal criminal defendant in the
District of Hawaii.1

Second, where Plaintiff was convicted is

immaterial to a determination of where venue lies for this civil
rights action.

See 28 U.S.C. § 1391(b).

Plaintiff also claims that Ioane and Kimoto are DPS
employees in Hawaii who are responsible for ensuring compliance
with the State’s contract between and the Corrections Corporation
of America (“CCA”) and its facilities, to house Hawaii inmates in
Arizona.2

He alleges that Ioane’s and Kimoto’s supervisory

positions in Hawaii, support his request that this court “oversee
this matter in its entirety.”

Mot., Doc. No. 10, PageID #65-66.

Any action or inaction by Ioane and Kimoto occurred after the
main events Plaintiff challenges in the Amended Complaint, i.e.,
that his due process rights were violated at SCC, resulting in a
string of later alleged constitutional violations.

See 28 U.S.C.

§ 1391(b)(2).

1

Courts may take judicial notice of facts whose “existence
is ‘capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.’” W.
Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4 (9th
Cir. 2008); Day v. Moscow, 955 F.2d 807, 811 (2nd Cir. 1992)
(holding courts may take judicial notice of their own records);
see also Fed. R. Evid. 201.
2

Although SCC is operated on contract between CCA and DPS,
it is a private correctional facility owned and operated by CCA.
See https://www.cca.com/facilities/saguaro-correctional-center.
(last visited March 17, 2015).
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Plaintiff fails to show cause why venue for this action
lies in Hawaii.

Venue for Plaintiff’s claims alleging SCC

officials denied him due process during a disciplinary hearing
held in Arizona on or about December 12, 2012, lies in the
District Court for the District of Arizona, where the incidents
complained of occurred and the defendants allegedly liable for
the original violations may be located.

See 28 U.S.C. § 1391(b).

III. TRANSFER TO ARIZONA
“The district court of a district in which is filed a
case laying venue in the wrong division or district shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been
brought.”

28 U.S.C. § 1406(a).
A brief review of Plaintiff’s Amended Complaint reveals

that Plaintiff still fails to state a claim.

Plaintiff has no

federal or state-created liberty interest to parole or parole
consideration.

See Greenholtz v. Inmates of Neb. Penal and Corr.

Complex, 442 U.S. 1, 7 (1979); Jago v. Van Curren, 454 U.S. 14,
17–21 (1981) (holding there is no constitutionally protected
interest in a parole date even after a parole date is set);
Mujahid v. Apao, 795 F. Supp. 1020, 1024 (D. Haw. 1992) (finding
no right to parole under Hawaii’s statutes); Turner v. Haw.
Paroling Auth., 93 Haw. 298, 302, 1 P.3d 768, 772 (2000).

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Plaintiff also has no right to transfer to Hawaii,

or

in avoiding “more adverse conditions of confinement,” such as
housing in SCC’s Maximum Security unit.

See Olim v. Wakinekona,

461 U.S. 238, 244-45 (1983) (holding there is no right to be
confined in a particular State, prison, or section of the
prison).
To the extent Plaintiff alleges he possessed a statecreated liberty interest in “freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life,” he omits any
details from which a court can reasonably infer that his due
process rights were violated by DHO Holley and Warden Thomas
during and after the disciplinary hearing.

Plaintiff therefore

fails to state a claim for the deprivation of procedural due
process.

Sandin, 515 U.S. at 481–84; see also Myron v. Terhune,

476 F.3d 716, 718 (9th Cir. 2007).

Plaintiff may, however, be

able to amend this allegation to sufficiently state a claim.
This consideration is better left to the District of Arizona,
however.
Because Plaintiff may be able to amend his due process
claims, and in light of his pro se status, the interests of
justice favor transferring this case to the district where the
significant events or omissions material to Plaintiff’s claims
occurred, witnesses may be found, there is access to the

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necessary evidence, and there is a local interest in resolving
the matter.

See 28 U.S.C. § 1406(a); see also King v. Russell,

963 F.2d 1301, 1305 (9th Cir. 1992).
IV.

CONCLUSION

This action is TRANSFERRED to the United States
District Court for the District of Arizona, Phoenix Division.
The Clerk of Court is DIRECTED to close the file and send any
pending motions or further documents received from Plaintiff
referring to this action to the United States District Court for
the District of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 20, 2015.

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

Murphy v. Kimoto, et al., 1:15-cv-00022 LEK/RLP; venue 2015; J:\PSA Draft
Ords\LEK\Murphy 15-22 LEK (trsf AZ).wpd

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