Dawson v. Wagatsuma et al
FINDINGS OF FACT, AND CONCLUSIONS OF LAW, AND DECISION ON NON-JURY TRIAL HELD ON AUGUST 8, 2017; ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT IN PLAINTIFF'S FAVOR AND DENYING DEFENDANT'S ORAL MOTION FOR JUDGMENT AS A MATTER OF LAW; AN D ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT ON PARTIAL FINDINGS. Signed by JUDGE LESLIE E. KOBAYASHI on 03/09/2018. AND NOW, following the conclusion of a bench trial in this matter, and in accordance with t he foregoing Findings of Fact and Conclusions of Law, it is HEREBY ORDERED that judgment shall enter in favor of Defendants as to all remaining counts in Plaintiff's Prisoner Civil Rights Complaint, filed December 28, 2015.In addition, Plaint iff's Motion for Judgment in Plaintiff's Favor, filed August 4, 2017, is DENIED; Defendant's oral motion for judgment as a matter of law, made at the close of Plaintiff's case, is DENIED; and Defendant's Motion for Judgmenton Partial Findings, filed August 15, 2017, is GRANTED.The Clerk's Office is DIRECTED to enter judgment in favor of Defendants and to close the case immediately. (eps, )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 served by first class mail on the date of this docket entry: Duane F. Dawson A0221932; KAUAI COMMUNITY CORRECTIONAL CENTER; 3-5351 Kuhio Hwy; Lihue, HI 96766
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NEAL WAGATSUMA, HARRY
VICTORINO and JON MIYAJIMA,
CIVIL 15-00537 LEK-KSC
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION ON
NON-JURY TRIAL HELD ON AUGUST 8, 2017; ORDER DENYING
PLAINTIFF’S MOTION FOR JUDGMENT IN PLAINTIFF’S FAVOR
AND DENYING DEFENDANT’S ORAL MOTION FOR JUDGMENT
AS A MATTER OF LAW; AND ORDER GRANTING
DEFENDANT’S MOTION FOR JUDGMENT ON PARTIAL FINDINGS
This case came on for a bench trial on August 8, 2017.
Plaintiff Duane F. Dawson (“Plaintiff” or “Dawson”) appeared pro
se by telephone conference, and Defendants Harry Victorino and
John Miyajima, in their individual capacities (“Defendants”),
were represented by Kendall Moser, Esq.
The Court, having
considered the pleadings, declarations and evidence admitted into
evidence, the testimony at trial, and the arguments of counsel,
makes the following Findings of Fact and Conclusions of Law and
Decision pursuant to Fed. R. Civ. P. 52.
The Court rules that
Defendants are entitled to judgment on all of Plaintiff’s claims.
Any finding of fact that should more properly be deemed a
conclusion of law and any conclusion of law that should more
properly be deemed a finding of fact shall be so construed.
In addition, Plaintiff’s Motion for Judgment in
Plaintiff’s Favor (“Plaintiff’s Motion”), [filed 8/4/17 (dkt. no.
69),] and Defendant’s oral motion for judgment as a matter of
law, pursuant to Rule 52(c) (“Oral Rule 52(c) Motion”), are
denied; and Defendant’s Motion for Judgment on Partial Findings
(“Rule 52(c) Motion”), [filed 8/15/2017 (dkt. no. 72),] is
Plaintiff filed his Prisoner Civil Rights Complaint
(“Complaint”) on December 28, 2015.
[Dkt. no. 1.]
asserts claims arising from alleged events while he was
incarcerated at the Kauai Community Correctional Center (“KCCC”)
from July 25, 2015 through the filing of the Complaint.
Plaintiff alleges the following claims under 42 U.S.C. § 1983:
Defendant Harry Victorino, a Lieutenant at KCCC (“Victorino”),
acting under the authority of Defendant Neal Wagatsuma, the
Warden at KCCC (“Wagatsuma”), violated Plaintiff’s constitutional
right to freely practice his religion (“Count I”); Defendant
Jon Miyajima, a Correctional Supervisor at KCCC (“Miyajima”),
acting under Wagatsuma’s authority, retaliated against Plaintiff
for grieving the violation of his right to practice his religion
The instant Decision
Order issued on February 6,
the Court’s decision on the
pending motions. [Dkt. no.
and Order supersedes the Entering
2018, which informed the parties of
non-jury trial and its rulings on the
(“Count II”); and all of the defendants violated his
constitutional right to equal treatment by denying him certain
privileges because of his religion (“Count III”).2
named all of the defendants in their individual and official
Plaintiff also sought injunctive relief.
This Court issued a Screening and Service Order on
February 4, 2016 (“Screening Order”).
[Dkt. no. 8.]
Screening Order allowed Plaintiff’s claims against Victorino and
Miyajima, in their individual capacities, to proceed.
Plaintiff’s claims against all of the defendants in their
official capacities, Plaintiff’s claims against Wagatsuma in his
individual capacity, and Plaintiff’s claim for injunctive relief
Defendants filed their Answer on May 20, 2016.
Plaintiff did not file an amended complaint, and
Defendants did not file any dispositive motions.
remaining portions of Counts I, II, and III proceeded to trial.
Specifically, those claims allege:
The Complaint does not identify which of the defendants
Plaintiff alleges Count III against. In light of Plaintiff’s pro
se status, Count III is liberally construed as alleging a claim
against all of the named defendants. See, e.g., Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The Supreme Court
has instructed the federal courts to liberally construe the
‘inartful pleading’ of pro se litigants.” (citing Boag v.
MacDougall, 454 U.S. 364, 365, 102 S. Ct. 700, 701, 70 L.Ed. 2d
551 (1982) (per curiam))).
Count I – Victorino “willfully, sadistically & maliciously denied
Plaintiff’s free exercise to religion by forcing Plaintiff
to denounce his Native Hawaiian Religious Practice to
participate in the uncertified Module Contract Program a
christian [sic] based program”; [Complaint at pg. 5;]
Count II – Miyajima “spiteful [sic] and malevolently retaliated
against Plaintiff for filing grievances based on the unfair
treatment received in regards to the denied opportunity to
participate in the Module Contract Program”;3 [id. at
pg. 6;] and
Count III – Plaintiff “has been deliberately denied equal
treatment to regularly” in certain privileges “like other
selected individuals” in the Module Contract Program, which
Plaintiff alleges he cannot participate in as a practitioner
of the Native Hawaiian Religion, [id. at pg. 7].
At trial, Plaintiff testified in support of his case.
He did not present any other witnesses.
After Plaintiff rested
his case, Defendants’ counsel made the Oral Rule 52(c) Motion,
which was taken under advisement.
[Trans. of 8/8/17 Trial
(“Trial Trans.”), filed 8/15/17 (dkt. no. 71), at 47-48.]
Defendants presented the Declaration of Harry Victorino
(“Victorino Declaration”) and the Declaration of Jon Miyajima
(“Miyajima Declaration”) in lieu of direct testimony.
also gave live testimony at trial.
In addition, Exhibits D1
through D12 were received into evidence.
[Id. at 64, 107.]
After Defendants rested their case, they orally renewed their
motion for judgment as a matter of law.
The renewed oral motion
was taken under advisement, and Defendants were directed to file
The alleged retaliation included being placed in
segregation at KCCC and being transferred to Halawa Correctional
Facility (“Halawa” or “HCF”). [Complaint at pg. 6.]
a written motion.
[Id. at 107-09.]
Defendants did so, and the
Rule 52(c) Motion supersedes their renewed oral motion.
Plaintiff filed his written closing argument on
August 31, 2017.
[Dkt. no. 74.]
Defendants filed their Closing
Argument Brief on September 5, 2017.
[Dkt. no. 75.]
FINDINGS OF FACT
The Court makes the following findings of fact based on
the declarations, trial testimony, and exhibits submitted by the
Plaintiff has been incarcerated by the State of Hawai`i
(“the State”) at KCCC and other facilities since the mid-1990s.
[Miyajima Decl. at ¶ 8.]
During the period at issue in the Complaint (July 25,
2015 to December 28, 2015), both Defendants were employed at
Miyjima was a Corrections Supervisor I, and Victorino was
an Adult Corrections Officer (“ACO”) V (Lieutenant).
¶¶ 4-5; Victorino Decl. at ¶ 4.]
Victorino began working at KCCC on February 3, 1997 and
was still working there at the time of trial.
at ¶¶ 3-4.]
Miyajima began working at KCCC in April 1997 and
continued working there until his retirement on December 31,
[Miyajima Decl. at ¶¶ 3-4.]
Miyajima’s duties and responsibilities as a Corrections
Supervisor I included: “ensuring that inmates are classified
correctly; being responsible for the movement of inmates between
State of Hawaii correctional facilities; . . . and serving as the
Inmate Grievance Officer at KCCC.”
[Id. at ¶ 6.]
The Module Contract Program
KCCC has a Module Contract Program (“Module Program” or
“Program”), which has been in place since the 1990s.
Decl. at ¶ 14.]
The State Department of Public Safety (“DPS”)
uses the Module Program as a rehabilitation tool.
Program “is part of a plan to provide an environment that helps
inmates successfully re-enter the community through a sequential
[Id. at ¶ 15.]
Victorino’s testimony on these matters is supported by
Exhibit D-10, titled “Module B – Changing Direction” and dated
October 1998 (“Module Program 1998 Manual”).
See Module Program
1998 Manual at Chap. 1, § C.4
Every KCCC inmate who enters the modules has the
opportunity to participate in the Module Program.
(Module Program Packet – Time to Change Direction!, dated 6/16/15
(Revised) (“Module Program Packet”)) at 5.5]
The Module Program has a Pre-phase level and subsequent
levels for Phase 1, 2, and 3.
Inmates who wish to enter
The Module Program 1998 Manual does not have page numbers.
The Module Program Packet appears to have superseded the
Module Program 1998 Manual, which was created when the Module
Program was only conducted in Module B.
the Module Program must submit a written request, and it must be
When an inmate is admitted into the Module Program, he
or she enters as a Pre-phase/Phase 1 resident.
at ¶ 14.]
The inmates at the Pre-phase and Phase 1 level have no
additional privileges, and the inmates in the Phase 3 level have
the “maximum amount of privileges allowed while in the module.”
[Module Program Packet at 5.]
For example, Phase 2 and Phase 3
inmates are allowed to utilize the dayroom areas.
achieve Phase 3 may also be considered for the Lifetime Stand
(“LTS”) Program, if they have an appropriate security
The LTS Program is conducted outside of
[Trial Trans. at 59.]
Other testimony was presented regarding the LTS
Program, but it is not addressed in the Findings of Fact because
it is not relevant to Plaintiff’s claims at trial.
Module Program participants “who refuse to follow
Program guidelines and facility rules, will be housed in pre
phase rooms, and will only be allowed out of their rooms for
meals, recreation, showers, and designated out of cell times.”
[Module Program Packet at 5.]
Further, “[i]f these inmates
and/or their actions/conduct become detrimental to the module
program and/or facility guidelines,” they may be subjected to
As of July 21, 2015, Plaintiff had been in the Module
Program Pre-phase room for Module B for approximately ten days
and had been engaging in “Program recreation, popcorn or cook out
nights, videos, etc.”
[Victorino Decl. at ¶ 16.]
On two other
occassions, Plaintiff participated in the Module Program while he
was housed in Module A, but Plaintiff removed himself from the
Program because he did not want to comply with the applicable
[Id. at ¶ 18.]
Plaintiff testified that, on July 21, Victorino spoke
with inmate Joe Ibana (“Ibana”), and Ibana informed Victorino
that Plaintiff was not reading the Bible.
that, for “a couple days” prior to July 21, he had been stepping
out of the room when the Program participants started their Bible
[Trial Trans. at 21.]
According to Plaintiff, after
Ibana informed Victorino Plaintiff was not reading the Bible,
Victorino shut down the Pre-phase program.
the Pre-phase program was closed, all of the other Pre-phase
participants were eventually allowed into the Module Program,
except for Plaintiff.
[Id. at 36.]
Plaintiff has asserted Victorino is the Program
Administrator of the Module Program.
[Complaint at pg. 5.]
Plaintiff also asserted at trial that the Module Program is
“considered Lieutenant Victorino’s program,” but Victorino denied
[Trial Trans. at 83.]
Plaintiff testified the Module Program is a Christian-
based program that requires daily Christian activities, including
Bible study, prayer to Jesus, and watching Christian-based
Plaintiff asserts that, because he is a
practitioner of the Native Hawaiian Religion, he was not able to
join or participate in the Program.6
[Id. at 22, 25.]
testified that, to the present day, he cannot gain admission into
the Module Program unless he reads the Bible.
[Id. at 30.]
According to Plaintiff, inmates of other religions,
including Buddhists, are not granted admission into the Module
According to Plaintiff, Victorino said Plaintiff’s
participation in the Module Program was required for Plaintiff to
be able to attend his father’s funeral.
[Id. at 21.]
did not want to be in the Module Program because it was
Christian-based, but he participated so that he could attend his
He had not attempted to participate in the
Module Program for years prior to his July 2015 participation in
[Id. at 27-28.]
According to Plaintiff, the Pre-phase program is not part
of the Module Program; it is merely a required step to gain
admission into the Program. Plaintiff asserts he was never
admitted into the Module Program program. [Trial Trans. at 2425.]
Plaintiff was not able to attend his father’s funeral,
which took place two days after Plaintiff was transferred to
[Id. at 32-33.]
At trial, Plaintiff did not present any witnesses or
exhibits supporting his position that the Module Program is a
Christian-based program or that he was required to denounce his
Native Hawaiian Religion as a condition of his pariticipation in
Plaintiff’s position relies solely on his testimony
that participation in Christian activities was a requirement of
the Module Program.
Plaintiff testified that only inmates in the Module
Program get “weekend recreation,” while inmates who are not in
the Program “are only allowed fresh air rec.”
[Id. at 38.]
asserts this is supported by the Log Book, i.e. Exhibit D-12.
Plaintiff testified that inmates in the Module Program
are allowed to play basketball, lift weights, and have occasional
They are also allowed items that non-Program inmates
do not have access to, including radios, chairs, DVDs, water
jugs, and additional food, as well as certain types of food that
non-Program inmates cannot have.
Further, they are allowed
access to areas that non-Program inmates are not allowed to
[Id. at 39-40.]
Plaintiff testified about other issues related to the
Program, including that: the Module Program improperly co-mingled
pre-trial inmates and inmates who were already serving a
sentence; KCCC improperly allows Module Program inmates to
supervise inmates who are not in the Program; and the Module
Program jeopardizes the security of the facility.
of Plaintiff’s testimony are not discussed in these Findings of
Fact because they are not relevant to Plaintiffs’ claims at
Defendants’ Testimony and Evidence
According to Victorino, he “had very little involvement
with the Module Contract Program” in 2015 because he was
conducting multiple, concurrent, facility investigations.
[Victorino Decl. at ¶ 17.]
In his capacity as the Chief of Security liaison,
Victorino provides oversight for the Module Program and
facilitates its operation.
He does not have the authority to
grant or take away privileges from Program inmates (or from nonProgram inmates), although he can make recommendations.
Victorino does not make policy.
[Id. at ¶ 19.]
Although participation in most Module Program
activities is desired, all that is required for acceptance and
continuation in the Program “is for an inmate to display a
willingness to make a positive change, go through the selection
process, and progressively work towards redirection.”
Victorino also testified inmates may opt out of
activities offered within the Module Program.
According to Victorino, inmates in the Module Program
“are allowed to practice, or not, whatever faith they choose.”
Victorino testified that, on July 21, 2015, Module
Program Sergeant Mark Fujiuchi (“Fujiuchi”) closed the Module B
Module Program Pre-phase room (B6) because the inmates were noncompliant.
[Id. at ¶ 16.]
Victorino agreed with the closing of
the Pre-phase room, but it was Fujiuchi who made the decision.
Because of the closure of the Pre-phase room, Plaintiff and the
other inmates in the Pre-phase room were removed from the Module
As a result, Plaintiff was assigned back to regular
The room closure and Plaintiff’s reassignment were “due
to the inmates’ non-compliance [and] had nothing to do with
[Id. at ¶ 18.]
Victorino’s testimony on these issues is supported by:
Exhibit D-6, a Module Program Memorandum, dated July 21, 2015 to
Chief of Security (“COS”) Lewis Lindsey (“Lindsey”), Wagatsuma,
and others, from Fujiuchi, the ACO-IV Module Compliance Sergeant
(“7/21/15 Memo”); and Exhibit D-7, a Supplemental Incident
Report, dated July 21, 2015, to Lindsey and Wagatsuma, from
Fujiuchi regarding an incident that occurred after the closing of
the Module B Pre-phase room (“7/21/15 Incident Report”).
The 7/21/15 Memo states, as of that date, “the Module
Program Pre-phase has been shut down until further notice.
Module B-Bedroom 6 is regular housing.”
The 7/21/15 Incident Report’s synopsis states Plaintiff
“stopped operations by threatening to flood Module B-Bedroom 6
and disrupted facility operations for 1 hour.”
However, the report does not describe the flooding threat.
Inmate DAWSON, D. was upset because the Preprogram room in Module B was shut down.
DAWSON, D. stated that he was really trying and
that he didn’t understand why they got shutdown.
He was venting because according to the Warden if
he was a participant in the Module Program he
would have been approved to go his father’s
funeral. . . . He (DAWSON) was exhibiting the
poor behavior that got that room shutdown. His
actions just reinforced the closing of the room.
They were ultimately closed down due to noncompliance to Program rules and for having
[Id. (emphases in original).]
Plaintiff was allowed to “rant and rave for an hour
about how wrong he was being treated.”
During, this time,
Plaintiff “referenced going to the ‘Hole’ and Halawa.”
Fujiuchi ultimately determined Plaintiff did not pose an
immediate threat and order Plaintiff be returned to Bedroom 6.
However, the 7/21/15 Incident Report notes Plaintiff hampered the
headcount and delayed operations by at least an hour.
According to Victorino, the first time he learned
Plaintiff was a practitioner of the Native Hawaiian Religion was
through the Complaint.
[Victorino Decl. at ¶ 12.]
never told Victorino or anyone else: Plaintiff was a practitioner
of the Native Hawaiian Religion; he believed he was unable to
participate in the Module Program because it was Christian-based;
or he required an accommodation to allow him to practice the
Native Hawaiian Religion.
[Id. at ¶ 16.]
If Plaintiff had done so, KCCC “Facility Chaplain
Clayton Sui would have met with [Plaintiff] one-on-one to better
understand what he required in order to practice his religion,
before then making a request and/or recommendation to the
Facility Administrator and the Department head for such
This never happened because Plaintiff
did not inform anyone of a concern about the practice of his
religion within the Module Program.
In fact, according to
Victorino, Plaintiff “has voiced concerns about many things in
the past, but never about religion.”
[Id. at ¶ 16.]
Victorino testified that he: “did not force Dawson to
renounce his Native Hawaiian religion”; “did not deny Dawson’s
right to exercise his religion”; and “did not willfully,
sadistically, or maliciously violate Dawson’s constitutional
[Id. at ¶¶ 9-11.]
Defendants also submitted a memorandum dated
September 30, 2008 to Security Staff & Module Program Inmates
from Victorino and Sergeant James Kilmer (“Kilmer” and “9/30/08
Memo”), stating: “Program male inmates have requested an
opportunity to conduct a joint bible study for all program male
inmates who desire to voluntarily participate.”
The 9/30/08 Memo specified one-hour blocks on Tuesdays
and Saturdays when the study could be held, and well as on
Sundays, if Victorino and/or Kilmer were available.
Memo also specified the rooms that could be used for the study,
and identified the inmate who would lead the study along with
others who were not identified by name.
The Module Program Packet does not discuss
Christianity, the Bible, religion, or other related topics,
except for one statement in the Weekly Program Reminders section
that “LDS CHURCH/BIN CHECK” is on Mondays.7
Packet at 25 (emphasis in original).]
The prior Module Program 1998 Manual contains one
reference to “church”: “As a resident of Module B you are
expected to behave outside of Module “B” as well as inside the
“LDS Church” likely refers to the Church of Jesus Christ
of Latter-day Saints. The record does not indicate what the “LDS
CHURCH/BIN CHECK” is.
Module (Visiting Room and Church).”
[Module Program 1998 Manual
at Chap. 5, § B (Module B House Rules), ¶ 29 (emphasis omitted).]
It also specifies that the following prayer is given at headcount
God is good
God is great
Thank you Lord for this food
[Id. at Chap. 5, § C-5 (Procedures for Headcount), ¶ 2.E.
Other than these, the Module Program 1998
Manual does contain any references to Christianity, the Bible,
religion, or related topics.
The Module Program 1998 Manual was not in effect at the
time Plaintiff alleges he was removed from the Module Program for
not reading the Bible.
Plaintiff testified he was placed in segregation, i.e.
“the hole,” because he filed grievances, and this has been going
on “for years.”
[Trial Trans. at 34.]
According to Plaintiff, the stated reasons for placing
him in segregation – including, inciting riots, threatening ACOs,
destroying a door, trying to escape, making up lies about being
raped – were all fabricated.
[Id. at 34-35.]
According to Plaintiff, “[w]hen they throw in me [sic]
in the hole . . . they turn my water off.
I literally got to
taste my own feces and urine every time I take a bite out of my
They literally torturing me because I file grievances.”
[Id. at 23.]
Plaintiff did not testify regarding any specific
incidents during the period in question when he was allegedly
placed in segregation in retaliation for filing grievances.
However, Defendants submitted an Incident Report stating
Plaintiff was placed in segregation following an incident on
August 2, 2015.
See discussion of Exh. D-8, infra.
Plaintiff testified he was transferred to Halawa based
“on lies saying that [he] destroyed a $2500 door,” but “[t]he
same door is still in its place.”
[Trial Trans. at 23.]
The transfer was also based on the fact that Plaintiff
had eighteen points.
Plaintiff asserted that this score was
unfounded, and he emphasized he never tried to escape.
Plaintiff believes he was sent to Halawa for writing grievances
because he allegedly had eighteen points, and fifteen points or
more is considered maximum custody.
When he was sent to Halawa,
he had ten points for his pending charges, two points for prior
felonies, and one point for his age, for a total of thirteen
points at the time of transfer.
[Id. at 67.]
To the extent
Plaintiff was assigned points because of the alleged escape
incident, his position is that the points should not have been
added until he had the opportunity to complete the grievance
process to challenge his write-up for the incident.
[Id. at 65.]
Plaintiff testified, “they said I asked to go to Halawa
or I asked to be put in a hole,” but he denies making such
[Id. at 23.]
Plaintiff states the KCCC Log Book entries for
August 2, 2015 do not indicate inmates were moved out of his
Module B room because of damage to the door.
[Id. at 88.]
of the August 2, 2015 entries states, “FYI 1730 – Inmate DAWSON
kicking the door in bedroom 6,” and the next entry notes “2145 –
last check, all appear normal.”
[Exh. D-12 (KCCC Log Book),
vol. 5 at 3503-04.]
Victorino acknowledged the movement of ten inmates
because of damage to the door should have been logged.
Trans. at 88.]
Plaintiff has not presented any evidence of, or
testimony describing, grievances he submitted prior to his
transfer to Halawa alleging the Module Program was discriminatory
because it was a Christian program.
Plaintiff elicited testimony
from Miyajima about the denial of Plaintiff’s grievance regarding
[Id. at 54-55.]
However, there was no
evidence this grievance raised the issue of religious
discrimination in the Module Program.
Plaintiff also testified about general complaints
regarding KCCC’s inmate grievance process, including: that,
outside of the period at issue in this case, some of the
grievances he submitted were not filed; that some of his
grievances were not handled by the appropriate DPS personnel; and
how difficult it is to complete all levels of the grievance
This testimony is not addressed in these Findings of
Fact because it is not relevant to Plaintiff’s claims at trial.
Defendants’ Testimony and Evidence
Plaintiff was moved to Halawa, effective August 6,
He was moved back to KCCC effective November 3, 2015.
[Exh. C-5 (Drill Down Detail Report regarding Plaintiff, dated
7/26/17) at 3.8]
Miyajima signed an Inmate Transfer Request, dated
August 5, 2015, recommending Plaintiff be transferred from KCCC
to Halawa (“Transfer Request”).
The Transfer Request was
approved on the same date, as evidenced by a signature that
appears to be Wagatsuma’s.
The Transfer Request states Plaintiff
is at the maximum custody level and has a total of eighteen
Miyajima confirmed he prepared the Transfer
The Drill Down Detail Report lists all of Plaintiff’s
activity within the DPS system from September 18, 1995 to
July 19, 2017, including booking, release, housing allocation,
movement within a facility, and movement to a different facility.
Request and that Plaintiff requested the transfer.
Decl. at ¶ 14.]
The Transfer Request states the reason for the request
Pre-Trial Felon, 5th Circuit commitment. Pending
trial, 11/02/15 for CR. No. 15-1-0206 (UEMV) and
15-1-0223 (Att MUR 1, Att MUR 2x3, TT1 x3) Inmate
broke the door to his bedroom on 08/02/15,
requiring 10 inmates to be moved to other cells as
the bedroom could not be secured. Since 07/18/06,
14 misconducts, 4 greatest, 3 high level. Inmate
requests transfer to HCF.
[Exh. D-4 (emphases in original).]
Victorino testified this transfer to Halawa was because
of Plaintiff’s misconduct, and it was unrelated to his
participation the Module Program.
[Victorino Decl. at ¶ 21.]
Miyajima testified Plaintiff’s “classification changed
to maximum custody because he kicked and broke a door at KCCC
which had to be replaced.”
[Miyajima Decl. at ¶ 10.]
Defendants presented an Incident Report, dated
August 2, 2015, addressed to Lindsey and Wagatsuma, from Fujiuchi
(“8/2/15 Incident Report”).
The synopsis of the report states
Plaintiff was “placed in segregation after acting out in
Module B, and damaging bedroom 6 door.”
According to the 8/2/15 Incident Report, Plaintiff told
KCCC staff “you guys better turn off the water or you guys are in
for a long night.”
While Fujiuchi was turning off the
water, Plaintiff “repeatedly kicked and slammed” the door of
Module B’s Holding Cell 3.
Fujiuchi later confronted
Plaintiff about escalating the situation, and Plaintiff
responded, “‘Yeah I probably going end up kicking this door!’”
KCCC considered the act of damaging the door an act of
See, e.g., Trial Trans. at 37.
Miyajima testified that, based on his years of
experience classifying inmates, Plaintiff was correctly
classified as a maximum custody inmate because of his misconduct
at KCCC and the charges pending against him.
incident involving the door, Plaintiff’s points increased such
that he was considered a maximum custody inmate.
Miyajima, Plaintiff was transferred to Halawa in August 2015
because KCCC does not house maximum security inmates, and Halawa
is a more secure facility.
[Miyajima Decl. at ¶ 13.]
Miyajima testified that: Plaintiff “was not transferred
to Halawa because submitted grievances about the Module Program
at KCCC”; and “he did not retaliate against Dawson because he
submitted grievances about the Module Program.”
[Id. at ¶¶ 15-
Miyajima did not testify as to the issue of whether
Plaintiff submitted grievances about the Module Program prior to
his August 2015 transfer to Halawa.
On August 18, 2015, while Plaintiff was at Halawa, he
submitted a grievance alleging: “I am discriminated against for
being a Native Hawaiian Practitioner.
That is my religion.
LT. Victorino made up lies to have me shipped out for Management
Problem for speaking up against his ‘Special Agenda’ Christian
based program that subjects anybody not in it to cruel and
[Exh. D-2 (Administrative Remedy Form
The form noted Plaintiff attempted to
resolve the issue on August 17, 2015 through informal discussion
with Herb Almeida.
On August 27, 2015, Wagatsuma responded: “You were
transferred to HCF having earned your maximum custody because of
your misconducts and nonstop disruptions.
It has nothing to do
with your stated claims, including discrimination.
On September 12, 2015, Plaintiff took the 8/18/15
Grievance to a step III appeal by submitting another
Administrative Remedy Form disagreeing with Wagatsuma’s response
The first week that I was incarcerated in KCCC I
was max custody without even being written up.
They told me because the seriousness of my
charges, yet they housed me in general POP. I was
provoked by LT. Victorino and his “special agenda”
Christian based Program until I finally flew off
the hook. I am registered as a Native Hawaiian
Practitioner. Because I don’t read the bible or
Pray to Jesus Christ I am not afforded certain
commodities as other sentenced and Pre-trail [sic]
inmates in KCCC. That is discrimination.
On October 12, 2015, Acting Institution Division
Administrator Shari Kimoto responded: “The reasons for your
transfer as maximum custody to HCF was [sic] previously addressed
in [the 8/18/15 Grievance].
You were transferred to HCF as a
maximum custody inmate due to your pending murder charge and
greatest category misconduct 6(7); not due to your religious
Your grievance is denied.”
Having considered all of the evidence before it, the
Court finds as follows:
This Court finds some portions of Plaintiff’s testimony
are credible, but other portions are not.
As of July 21, 2015, Plaintiff was a participant in the
Module Program at the Pre-phase level.
Plaintiff was participating in the Module Program
because either Wagatsuma or Victorino told him participation in
the Program was required in order for him to attend his father’s
It is not necessary to resolve the factual issues of
who told Plaintiff this and whether Victorino had the authority
to grant Plaintiff’s request to attend the funeral.
Plaintiff’s testimony that the Module Program is a
Christian-based program requiring, inter alia, daily Bible study
and prayer to Jesus is not credible.
Victorino gave credible testimony that: inmates in the
Module Program are allowed to practice whatever religion they
choose, including being allowed to practice no religion; inmates
may opt out of Program activities; Plaintiff never complained
about discrimination in the Module Program based on Plaintiff’s
practice of the Native Hawaiian Religion; and, if Plaintiff had
made such a complaint, the KCCC chaplain would have met with
Plaintiff regarding possible accommodations.
There are some activities offered in the Module Program
that are connected to religion – i.e., inmate led Bible study two
or three times a week and the “LDS CHURCH/BIN CHECK” – and there
is evidence of more extensive religious activities in the Module
Program 1998 Manual.
However, the Module Program 1998 Manual was
not in effect during the period at issue in this case, and there
is no credible evidence that the religious activities included in
the Module Program during the period in question were mandatory,
nor is there any evidence that religious activities were a
central component of the Module Program during the period in
The Module Program is not a religious program.
While he was participating in the Module Program,
Plaintiff did not make it known that he believed he was unable to
participate in certain Program activities because he is a
practitioner of the Native Hawaiian Religion.
If he had done so,
the KCCC chaplain would have worked with him to request any
accommodation, if an accommodation was necessary.
Plaintiff’s testimony that the Module B Pre-phase room
was closed, which caused him to be removed from the Module
Program, because he refused to read the Bible is not credible.
Fujiuchi closed the Module B Pre-phase room because the
Program participants in that room – i.e. including, but not
limited to, Plaintiff – were not complying with the requirements
of the Program.
Plaintiff’s removal from the Module Program was not
based on his refusal to participate in Christian activities or on
his practice of the Native Hawaiian Religion.
There is no credible evidence Plaintiff’s participation
in the Module Program required him to renounce the Native
Hawaiian Religion, nor is there any evidence Plaintiff’s practice
of the Native Hawaiian Religion was prohibited or impaired while
he was in the Module Program.
Plaintiff filed a grievance alleging the Module Program
was a Christian-based program, but he did not file the grievance
until after he was transferred to Halawa.
Plaintiff’s testimony that he filed similar grievances
prior to his transfer is not credible.
After the closure of the Module B Pre-phase room,
Plaintiff was placed in segregation and was later transferred to
Halawa, but his testimony that these decisions were in
retaliation for the filing of grievances about the Module Program
is not credible.
Defendants gave credible testimony that: Plaintiff’s
custody classification changed because of misconduct regarding
the bedroom door; and Plaintiff’s transfer to Halawa was not
related to either the Module Program or the filing of grievances
about the Module Program.
Based on the 8/2/15 Incident Report, this Court finds
Plaintiff was placed in segregation because of misconduct
regarding the bedroom door.
Plaintiff testimony that he did not break the bedroom
door is not credible.
Although there is no notation in the
Module B Log Book about ten inmates being moved because of the
broken door, and Victorino testified that the movement of ten
inmates should have been logged, that is not sufficient to prove
Plaintiff was placed in segregation and transferred to Halawa in
retaliation for filing grievances about the Module Program.
Plaintiff was placed in segregation and transferred to
Halawa for reasons that were unrelated to either his
participation in the Module Program or any grievance he submitted
about the Module Program being a religious program.
KCCC inmates who participate in the Module Program have
many more privileges and opportunities than inmates who do not.
However, because the Module Program is not a religious program,
non-Program inmates are not denied privileges and opportunities
based on religion.
CONCLUSIONS OF LAW
Jurisdiction and Venue
The Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331.
Venue is proper pursuant to 28 U.S.C.
Defendants’ Oral Rule 52(c) Motion
Defendants made their Oral Rule 52(c) Motion at the
close of Plaintiff’s case.
Judgment could not be granted in
favor of Defendants at that time because Plaintiff’s testimony,
if found to be credible, would have established his claims.
testimony therefore had to be viewed in the light of all of the
evidence as a whole, and Defendants were required to present
Plaintiff’s § 1983 Claims
“To prevail on a Section 1983 claim, a plaintiff must
establish that a right secured by the Constitution or law of the
United States was violated and that the violation was committed
by a person acting under the color of state law.”
Dep’t of Pub. Safety, CIV. No. 16-00348 HG-KSC, 2017 WL 2524846,
at *3 (D. Hawai`i June 9, 2017) (citing West v. Atkins, 487 U.S.
42, 48 (1988)).
“A person deprives another of a constitutional
right, within the meaning of Section 1983, if he does an
affirmative act, participates in another’s affirmative acts, or
omits to perform an act which he is legally required to do that
causes the deprivation of which the plaintiff complains.”
(citing Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988)).
At all times relevant to this case, Miyajima and
Victorino were persons acting under the color of Hawai`i law for
purposes of § 1983 because the actions at issue occurred in their
capacities as KCCC employees.
See West, 487 U.S. at 49 (“The
traditional definition of acting under color of state law
requires that the defendant in a § 1983 action have exercised
power possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state
law.” (citation and internal quotation marks omitted)).
Count I – Compelled Participation in the Module Program
The First Amendment states, inter alia: “Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.”
This provision is made
applicable to the State of Hawai`i through the Fourteenth
See Stone v. Graham, 449 U.S. 39, 40 n.2 (1980).
Coercing a prisoner to participate in a religious
program that would require him “to renounce his own religious
belief  offends the core of Establishment Clause
Inouye v. Kemna, 504 F.3d 705, 713 (9th Cir.
The plaintiff in Inouye alleged his parole officer
vioalted the Establishment Clause by requiring him to attend
Alcoholics Anonymous/Narcotics Anonymous (“AA/NA”) meetings as a
condition of his parole.
Inouye was a Buddhist and had a well-
established history – both during his incarceration and in
connection with his parole – of objecting to being compelled to
participate in drug treatment programs that were based in
One of his parole conditions was to attend a drug
addition treatment program that required participation in AA/NA
Inouye eventually refused to participate in the
program and was terminated from it.
Due in part to his refusal
to participate in the mandatory drug treatment program, Inouye
was arrested for parole violations and his parole was revoked.
The district court granted summary judgment in favor of the
parole officer, and Inouye appealed.
Id. at 709-10.
The parties “agree[d] that reverence for ‘a higher
power’ is a substantial component of the AA/NA program.”
As part of the qualified immunity analysis, the Ninth
Circuit held the parole officer’s requirement that Inouye attend
Although Plaintiff has referred to Count I as alleging the
violation of his right to freely practice his religion, Count I
is liberally construed as alleging a violation of both the
Establishment Clause and the Free Exercise Clause.
AA/NA meetings violated Inouye’s rights under the Establishment
Clause and reversed the grant of summary judgment in favor of the
Id. at 714, 717.
In its qualified immunity analysis, the Ninth
Circuit adopted the following analysis to determine whether there
was improper government coercion of religious activity: “first,
has the state acted; second, does the action amount to coercion;
and third, is the object of the coercion religious rather than
Id. at 713 (citation and quotation marks omitted).
The first two prongs of the Inouye analysis are met in
this case because KCCC personnel told Plaintiff he had to
participate in the Module Program if he wanted to attend his
father’s funeral, and that amounts to coercion.
The third prong is not met because the Module Program
is not a religious program.
Plaintiff has therefore failed to
prove his rights under the Establishment Clause of the First
Amendment were violated.
Even if this Court concluded that it was a violation of
Plaintiff’s First Amendment rights under the Establishment Clause
to compel him to participate in a program that had a primarily
secular purpose but had limited, optional, religious components,
this Court would conclude that Victorino is entitled to qualified
The Ninth Circuit stated:
Government officials who perform discretionary
functions generally are entitled to qualified
immunity from liability for civil damages “insofar
as their conduct does not violate clearly
established statutory or constitutional rights of
which a reasonable person would have known.”
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.
Ct. 2727, 73 L. Ed. 2d 396 (1982). The Supreme
Court has set forth a two-part analysis for
resolving qualified immunity claims, which we may
address in any order. See Pearson v. Callahan,
555 U.S. 223, 236, 129 S. Ct. 808, 172 L. Ed. 2d
565 (2009). First, we must consider 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 v. Katz, 533 U.S. 194, 201, 121
S. Ct. 2151, 150 L. Ed. 2d 272 (2001), overruled
in part on other grounds by Pearson, 555 U.S. at
236, 129 S. Ct. 808. Second, we must determine
whether the right was clearly established at the
time of the alleged violation. Saucier, 533 U.S.
at 201, 121 S. Ct. 2151. Even if the right was
clearly established at the time of the violation,
it may be “difficult for [the defendant] to
determine how the relevant legal doctrine . . .
will apply to the factual situation the
[defendant] confronts.” Id. at 205, 1 S. Ct.
. Therefore, “[i]f the . . . mistake as to
what the law requires is reasonable . . . the
[defendant] is entitled to the immunity defense.”
Brown v. Or. Dep’t of Corr., 751 F.3d 983, 989 (9th Cir. 2014)
(alterations in Brown).
Even if compelling Plaintiff to participate in the
Module Program was a violation of the Establishment Clause, a
prisoner’s right not to be compelled to participate in a secular
program that had a limited number of optional religious
activities was not clearly established at the time of the
violation of Plaintiff’s rights.
In contrast, in Inouye, the
Ninth Circuit held the parole officer was not entitled to
qualified immunity because relevant constitutional right was
504 F.3d at 715 (“By 2001, two circuit
courts, at least three district courts, and two state supreme
courts had all considered whether prisoners or parolees could be
forced to attend religion-based treatment programs.”).
Thus, Victorino would be entitled to qualified
immunity from Plaintiff’s Establishment Clause claim in Count I.
To the extent Count I alleges a violation of
Plaintiff’s rights under the Free Exercise Clause, the claim
fails because Plaintiff did not present any evidence that his
practice of the Native Hawaiian Religion was prohibited or
impaired while he was participating in the Module Program.
Victorino is entitled to judgment in his favor as to
Count II – Retaliation
Although the Complaint only cites the Fourteenth
Amendment as the basis for Count II, it is liberally construed as
alleging a First Amendment retaliation claim.
See Brodheim v.
Cry, 584 F.3d 1262, 1269-73 (9th Cir. 2009) (discussing First
Amendment retaliation claim for violation of prisoners’ First
Amendment right to file prison grievances).
Miyajima is not named as a defendant in Count I.
The First Amendment states, in relevant part: “Congress
shall make no law . . . abridging the freedom . . . to petition
the Government for a redress of grievances.”
noted, the First Amendment is applicable to the states through
the Fourteenth Amendment.
In a First Amendment retaliation claim, the plaintiff
is “entitled to prevail if: ‘(1) . . . a state actor took some
adverse action against [him] (2) because of (3) [his] protected
conduct, and that such action (4) chilled [his] exercise of his
First Amendment rights, and (5) the action did not reasonably
advance a legitimate correctional goal.’”
Entler v. Gregoire,
872 F.3d 1031, 1040 (9th Cir. 2017) (alterations in Entler)
(quoting Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir.
Placing Plaintiff in segregation and transferring him
to Halawa – a higher security facility – each constitutes an
adverse action against him.
Presenting prison grievances, whether verbal or
written, constitutes protected activity under the First
Entler, 872 F.3d at 1039.
Although Rhodes reviewed the Fed. R. Civ. P. 12(b)(6)
dismissal of a First Amendment retaliation claim, the elements
are the same when such a claim is decided on the merits. See,
e.g., Brodheim, 584 F.3d at 1269 n.3 (summary judgment).
However, Plaintiff’s retaliation claim fails because he
has not proven the adverse actions were taken against him because
of his protected conduct.
Miyajima is entitled to judgment in his favor as to
Count III – Equal Protection
Section 1 of the Fourteenth Amendment prohibits states
from “deny[ing] to any person within its jurisdiction the equal
protection of the laws.”
This “is essentially a direction that
all persons similarly situated should be treated alike.”
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
The Ninth Circuit has stated:
To state a claim for violation of the Equal
Protection Clause, a plaintiff must show that the
defendant acted with an intent or purpose to
discriminate against him based upon his membership
in a protected class. Barren v. Harrington, 152
F.3d 1193, 1194 (9th Cir. 1998). “Intentional
discrimination means that a defendant acted at
least in part because of a plaintiff’s protected
status.” Maynard v. City of San Jose, 37 F.3d
1396, 1404 (9th Cir. 1994) (emphasis in original)
Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003).
Because the Module Program is not a religious program,
and the denial of certain privileges and opportunities to nonProgram inmates is not based on religion, Plaintiff has failed to
establish that the intent or purpose of the Module Program is to
Victorino is not named as a defendant in Count II.
discriminate against Plaintiff – or any other non-Program inmate
– based on religion.
Plaintiff’s Fourteenth Amendment Equal Protection claim
fails, and Defendants are entitled to judgment as to Count III.
DECISION AND ORDER
AND NOW, following the conclusion of a bench trial in
this matter, and in accordance with the foregoing Findings of
Fact and Conclusions of Law, it is HEREBY ORDERED that judgment
shall enter in favor of Defendants as to all remaining counts in
Plaintiff’s Prisoner Civil Rights Complaint, filed December 28,
In addition, Plaintiff’s Motion for Judgment in
Plaintiff’s Favor, filed August 4, 2017, is DENIED; Defendant’s
oral motion for judgment as a matter of law, made at the close of
Plaintiff’s case, is DENIED; and Defendant’s Motion for Judgment
on Partial Findings, filed August 15, 2017, is GRANTED.
The Clerk’s Office is DIRECTED to enter judgment in
favor of Defendants and to close the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 9, 2018.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
DUANE F. DAWSON VS. NEAL WAGATSUMA, ET AL; CIVIL 15-00537 LEKKSC; FINDINGS OF FACT, CONCLUSIONS OF LAW, AND DECISION ON NONJURY TRIAL HELD ON AUGUST 8, 2017; ORDER DENYING PLAINTIFF’S
MOTION FOR JUDGMENT IN PLAINTIFF’S FAVOR AND DENYING DEFENDANT’S
ORAL MOTION FOR JUDGMENT AS A MATTER OF LAW; AND ORDER GRANTING
DEFENDANT’S MOTION FOR JUDGMENT ON PARTIAL FINDINGS
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